Electronic Cigarettes Law

Many of our current customers are already well educated on the benefits of electronic cigarettes, and understand full well what sets them apart from conventional cigarettes (or “analogs”). A topic that eludes most Canadian vapers, however, is the legality of such products. From vendors who go out of their way to hide e-liquids containing nicotine, to customers who have to search high and low for “a guy” that sells nicotine juices out of a back room—obtaining e-liquid in Canada can resemble nothing short of a drug deal. The propagation of these standards is damaging to the legitimacy of the entire electronic cigarette industry, and can confuse current smokers and potential converts. The truth of the matter is that electronic cigarettes and e-liquid containing nicotine are completely legal under Canadian Law.

Many of our current customers are already well educated on the benefits of electronic cigarettes, and understand full well what sets them apart from conventional cigarettes (or “analogs”). A topic that eludes most Canadian vapers, however, is the legality of such products. From vendors who go out of their way to hide e-liquids containing nicotine, to customers who have to search high and low for “a guy” that sells nicotine juices out of a back room—obtaining e-liquid in Canada can resemble nothing short of a drug deal. The propagation of these standards is damaging to the legitimacy of the entire electronic cigarette industry, and can confuse current smokers and potential converts. The truth of the matter is that electronic cigarettes and e-liquid containing nicotine are completely legal under Canadian Law.

In 2009, Health Canada issued an advisory against the sale and consumption of electronic cigarettes (http://www.healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2009/13373a-eng.php). The advisory claimed that: “these products fall within the scope of the Food and Drugs Act, and under the Act, require market authorization before they can be imported, advertised or sold.” Despite its inaccuracies and misleading nature, Canadian news outlets quickly picked up on this advisory, and have been quoting it ever since to support the baseless claim that electronic cigarettes are “banned” in Canada (e.g.http://www.cbc.ca/news/health/story/2011/09/05/sask-e-cigarettes.html). It must be noted, however, that an advisory is not the same thing as a regulation. In order to “ban” electronic cigarettes, new laws must be passed specifically pertaining to electronic cigarettes. No such laws exist.

In fact, the advisory is a negligent interpretation of the law at best, and intentionally misleading propaganda at worst.

Health Canada’s claim that electronic cigarettes fall under the scope of the Food and Drugs Act is simply incorrect. The Food and Drugs Act specifically exempts nicotine “in a form to be administered orally by means of an inhalation device delivering 4 mg or less of nicotine per dosage unit” (http://laws-lois.justice.gc.ca/PDF/C.R.C._c._870.pdf). Electronic cigarettes are indisputably inhalation devices. Even at the highest concentrations of e-liquid (32 mg), an electronic cigarette delivers well below the 4 mg threshold per dosage unit. The Food and Drugs act makes it abundantly clear that devices like electronic cigarettes are perfectly legal.

In fact, based on Health Canada’s own regulations, electronic cigarettes and e-liquid cannot even be considered a drug. Health Canada defines a drug as the following (http://www.hc-sc.gc.ca/dhp-mps/prodpharma/applic-demande/guide-ld/newdrug-drognouv/ndrugs_ndrogue-eng.php):

“drug” includes any substance or mixture of substances manufactured, sold or represented for use in
a. the diagnosis, treatment, mitigation or prevention of a disease, disorder, abnormal physical state, or its symptoms, in human beings or animals,
b. (restoring, correcting or modifying organic functions in human beings or animals, or
c. disinfection in premises in which food is manufactured, prepared or kept;

Absent any therapeutic claims (e.g. “E-cigarettes are the best smoking cessation aid!”), this product cannot be considered a drug. These laws are not open to interpretation. They are explicit and clear.

In summation: Health Canada cannot ban a class of product through an advisory, devices akin to electronic cigarettes are specifically exempt from Schedule F of the Food and Drugs Act, and they cannot be considered a new drug as per Health Canada’s own laws.

If electronic cigarettes are not banned, and they are not drugs in a legal sense, what are they? They are a consumer chemical product. By this classification, electronic cigarettes are legal and regulated within the Canadian marketplace by Consumer Chemicals and Containers Regulations, 2001 (http://laws-lois.justice.gc.ca/PDF/SOR-2001-269.pdf).

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