Bill 45 - Schedule 3; The Dipi Solution

I've had some interesting conversations this past week. I was involved in a forum post where I saw a few folks saying Bill 45 was good as it separated Tobacco from Vaporizers and we should focus on positively on applying some minor tweaks to flush it out. I also received a politely worded e-mail that suggested that seeing as Bill 45 was sure to pass as written; I'd best focus on HESA (The federal Standing Committee on Health) and their current series of meetings and stop focusing on Ontario.

While respecting those opinions, I disagree. In my opinion Bill 45 - Schedule 3 will do serious damage to the Ontario and indeed the Canadian vaping community in many ways. So lets go through this Bill shall we? I happen to have a copy here on the table, and you can follow along by going here.

I will cut/paste the relevant bits that support my argument. If you have a different take and believe me to be a tinfoil beret wearing hack, feel free to leave comments below, but also site your reasoning so we can promote discussion (For the record I prefer Tilley hats over Berets).

To avoid having to say "Ontario Bill 45 - Schedule 3, The Electronic Cigarettes Act, 2014" over and over again I'm going to shorten it up and give some reference to its champion The Hon. Dipika Damerla.

I will henceforth refer to Bill 45 - Schedule 3 as "The Dipi Solution".

Lets get to it shall we?

Section 1 of "The Dipi Solution" - Definitions

No one ever reads the definitions. Its kind of like the terms of agreement on iTunes. Our eyes glaze over and we just want to get past it; so with a mental "yadda yadda yadda" we move on.

Except me. I didn't. You shouldn't either. Pay attention in particular to these definitions;

“commercial”, with respect to electronic cigarettes, means something done or prepared for the primary purpose of generating profits from the sale or use of electronic cigarettes, directly or indirectly; (“commercial”)

Hello @stinkycanuck, hey there @flavourcrafters, Renegade Vapors, MLV, *insert business name here*.

“electronic cigarette” means any of the following:

    1.  A vaporizer or inhalant-type device, whether called an electronic cigarette or any other name, that contains a power source and heating element designed to heat a substance and produce a vapour intended to be inhaled by the user of the device directly through the mouth, whether or not the vapour contains nicotine.

    2.  A component of a device described in paragraph 1.

    3.  Any other prescribed device or product; (“cigarette électronique”)

That covers every e cigarette out there. "Personal Fogger", "Personal Vaporizer", "Cig-a-like", "Billy from Topeka" it doesn't matter what the end user calls it. This bill speaks to it. Battery, tank, coil, circuit board, wire, and wick. All covered.

“employee” means a person who performs any work for or supplies any services to an employer, or a person who receives any instruction or training in the activity, business, work, trade, occupation or profession of an employer; (“employé”)

Hello @stinkycanuck, hey there @flavourcrafters, Renegade Vapors, MLV, *insert business name here*. Oh Yeah and you also classify here...

“employer” includes an owner, operator, proprietor, manager, superintendent, overseer, receiver or trustee of an activity, business, work, trade, occupation, profession, project or undertaking who has control or direction of, or is directly or indirectly responsible for, the employment of a person in it; (“employeur”)

Moving along now that we have identified the players, lets define places:

“enclosed public place” means,

  (a)  the inside of any place, building or structure or vehicle or conveyance or a part of any of them,

           (i)  that is covered by a roof, and

          (ii)  to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, or

  (b)  a prescribed place; (“lieu public clos”)

A vape shop is an enclosed public space. Then; so is a gazebo, this is why our seniors in residences smoke out beside the road in the rain and snow.

 
“enclosed workplace” means,

  (a)  the inside of any place, building or structure or vehicle or conveyance or a part of any of them,

           (i)  that is covered by a roof,

          (ii)  that employees work in or frequent during the course of their employment, whether or not they are acting in the course of their employment at the time, and

         (iii)  that is not primarily a private dwelling, or

  (b)  a prescribed place; (“lieu de travail clos”)

A vape shop is an enclosed workplace. Hello all you folks previously identified as "Commercial", "Employees", and "Employers".



Now lets move on to definition of actions. If you pay attention to nothing else, make damned sure you understand these:

 “promote”, with respect to electronic cigarettes, means to use any commercial act or practice or to use any commercial communication, through any media or other means, that is intended to or is likely to,

  (a)  encourage the purchase or use of an electronic cigarette or a brand of an electronic cigarette, or

  (b)  create an awareness of or association with an electronic cigarette, a brand of electronic cigarette or a manufacturer or seller of an electronic cigarette; (“promouvoir”)

Any is an incredibly powerful and inclusive word in law. You can't show an electronic cigarette. you can't talk about the electronic cigarette. You can't say one brand is better than the other. You can't say "This one is better for a new user". For those of you who think you can do that on the internet please se the three words in the first line "through any media". If you own a business and you have a website that has that business' name on it. YOU ARE PROMOTING THAT BUSINESS.

 But I just make liquids!... See the definitions for "Commercial" and "Electronic Cigarette" and then go turn your web page to a blank black page.

 If you want a visual reference. go have a look anywhere tobacco cigarettes are sold. Can you see them? Nope. See any brand recognition? Nope. You go in, you ask for your brand, and all you hear will either be "We don't carry that brand", or, "That'll be 17 bucks. Thank you, come again"

 This will become the summation of all business transactions in any vape shop that is compliant with law.

 “use”, with respect to electronic cigarettes, includes any of the following:

    1.  Inhaling vapour from an electronic cigarette.

    2.  Exhaling vapour from an electronic cigarette.

    3.  Holding an activated electronic cigarette. (“utiliser”)

If it has a battery in it and you push the button. You are using it. Doesn't matter if its a demo, a sample tube, troubleshooting, or a fat finger. If it has a battery and you push the button, you are using the device.

Ok definitions are done, or at least the ones that most impact the vaping community. Any time you see those terms you know have the clear definition of what they are. Now lets get into the rest of it.



Section 2 of "The Dipi Solution" - Selling or supplying to persons under 19

I'm ok with Section 2, so are most reputable vendors.



Section 3 of "The Dipi Solution" -Display etc

3.  (1)  No person shall, in any place where electronic cigarettes are sold or offered for sale, display or permit the display of electronic cigarettes in any manner that would permit a consumer to view or handle an electronic cigarette before purchasing it.

Promotion

   (2)  No person shall promote electronic cigarettes,

  (a)  in any place where electronic cigarettes or tobacco products are sold or offered for sale; or

  (b)  in any manner, if the promotion is visible from outside a place in which electronic cigarettes or tobacco products are sold or offered for sale.

Exceptions

   (3)  Despite subsection (2), if the regulations so provide, a person may post signs providing information about electronic cigarettes and their price, but only if the signs meet the prescribed conditions.

Same

   (4)  Despite subsection (2), if the regulations so provide, a person may make available a document providing information about electronic cigarettes and their price, but only if the document meets the prescribed conditions.

In short. Until a vendor has your cash in hand, you see or touch nothing. You discuss nothing.

Where they refer to "Signs" and "Sheets" with electronic cigarettes and prices I again send you to 7-11 where you often will see a small board that says "Premium Brands $17.00, Generic Brands $16.99. You better go revisit the definition of promotion at this point. In fact, just go memorize that one.



Section 4 of "The Dipi Solution" -Places of Entertainment

  4.  (1)  No person shall employ or authorize anyone to promote electronic cigarettes or the sale of electronic cigarettes at any place of entertainment that the person owns, operates or occupies.

Definition

   (2)  In this section,

“place of entertainment” means a place to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, and which is primarily devoted to eating, drinking or any form of amusement.

 Vape meets? what vape meets.



Section 8 of "The Dipi Solution" -Flavoured electronic cigarettes

 

  8.  No person shall sell or offer to sell a flavoured electronic cigarette that has been prescribed as prohibited at retail or for subsequent sale at retail or distribute or offer to distribute it for that purpose.

 Before we go jumping up and down, ecstatic that "tuti fruity" is not defined here, we need to understand how this process really works.

 The "Bill" can get a lot of public attention, it also has a more robust review process. Bills define laws. That's what this statement does. It says that when you are told a flavour is to be banned. It will be illegal to stock and sell that flavour.

 "Regulations" are used to define how an Act (Bill) is defined and enforced. They require much less open oversight and can to my knowledge be determined by a committee.

 So; The law says flavours prescribed as prohibited shall not be sold. That's the law. At a later date a meeting is held to determine which flavours will be prescribed as prohibited. The first notice vendors will get will be the letter that says take it off the shelves. Due to the definition of "promotion", the first clue the customers may get will be when they go in and specifically ask for "x" and are told the vendor no longer carries "x".

Well that and proud proclamations of saving children in the paper.

"Tuti Fruity" How I shall miss thee. Pass the tinfoil.

 

Section 10 of "The Dipi Solution" - Prohibition

10.  (1)  No person shall use an electronic cigarette in any enclosed public place or enclosed workplace.

 As per the definitions, we know that Vape Shops are workplaces, and public spaces. We have also studied the definition of "use".

 Goodbye Vapor Lounges

Sayonara Sample Stations

Toodles to trouble shooting 

See you on the street, 5 meters (or whatever the law allows) from any door, window, or HVAC inlet. Bring a coat, it's cold out.

 

2)  No person shall use an electronic cigarette in the following places or areas:

    1.  A school as defined in the Education Act.

    2.  A building or the portion of a building occupied by a private school as defined in the Education Act and the grounds surrounding the building of a private school, in cases where a private school is the only occupant of the premises, and the grounds annexed to a private school, in cases where a private school is not the only occupant of the premises.

    3.  Any common area in a condominium, apartment building or university or college residence, including, without being limited to, elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies and exercise areas.

    4.  A day nursery within the meaning of the Day Nurseries Act.

    5.  A place where private-home day care is provided within the meaning of the Day Nurseries Act, whether or not children are present.

    6.  The reserved seating area of a sports arena or entertainment venue.

    7.  A prescribed place or area.

 Most of that makes sense (Parking garages? Really? Parking Garages?)

 #7 though.... see earlier comments on Acts vs. Regulations.

 

 The last one I'm going to hit on is Section 12, but not for the reason you might think...

Section 12 of "The Dipi Solution" - Protection for people under 16 years old in motor vehicles

 12.  (1)  No person shall use an electronic cigarette or have an activated electronic cigarette in a motor vehicle while another person who is less than 16 years old is present in the vehicle.

While I may agree with the sentiment, the fact is we are now starting to invade personal space. It's not that far of a leap to go from a car to a private residence.

 That and my wife is short. I'll get pulled over all the time.

 The act goes on to cover inspections and inspectors, employer and employee obligations, records and offences.

 It also has the fine schedule. you should read that if you are a vendor.

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So just what does "The Dipi Solution" mean to us?

If you are a vendor; walk to your front door turn and take a picture of your shop. Put that picture in photoshop and black out the displays, the glass counters, and posters on the wall, basically anywhere you see anything to do with e-cigarettes, vaporizers, juice or anything else. Delete your flavour sample station and put some duct tape over the mouth of whoever is behind the counter.

Do the same to your website.

Take a picture of your parking lot. That's where your customers can vape. You can't troubleshoot or sample out there either. That's promotion.

This is your future and I don't see robust growth in this model.


If you are the consumer; well after all your shops close you could go to Quebec I suppose... until they enact their own "Most thourough and toughest anti-smoking/vaping law in all the land".


If you are a smoker; It does exactly what I think it was meant to do. Prevent you from moving to a less harmful delivery system by making access difficult and complicated as you try to figure this stuff out on your own, removing the majority of the social and tactile benefits, and keep as much as possible of Ontario's 1.2 Billion dollars of annual tobacco excise tax rolling in while around half of you are relegated to a statistical early death due to a smoking related ailment.

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Banning sales to minors, and the fact that E-cigarettes are in their own classification as opposed to being classified as tobacco are the only good things in this act. The rest is cut/paste from cigarette legislation with no scientific evidence supporting this level of fear based prohibition.

 Tobacco companies and NRT manufacturers may rejoice. This bill guts their biggest competitors to date... Ontario Small Business, and Ex-Smokers.

 "The Dipi Solution" is just... well... dippy.

 

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Post script: While typing this up I was informed that Bill 45 goes in for it's second reading tomorrow. Monday December 1st. You better start squawking folks. Letters, phone calls, The National Post. Addresses are available in this very blog. Ontario is the center of the Canadian Political Universe. If Ontario falls, we are all buggered.

Now excuse me, I need 2.2 litres a year to keep vaping. Liquids keep for 2 years. I'm off looking for some bulk discounts.