The Honourable Judith Seidman

May 10, 2018

Resuming debate on the motion of the Honourable Senator Harder, P.C., seconded by the Honourable Senator Ringuette:

That the Senate concur in the amendments made by the House of Commons to Bill S-5, An Act to amend the Tobacco Act and the Non-smokers’ Health Act and to make consequential amendments to other Acts; and

That a message be sent to the House of Commons to acquaint that house accordingly.

Hon. Judith Seidman: Honourable senators, I rise today to speak to the message on Bill S-5, An Act to amend the Tobacco Act and the Non-smokers’ Health Act and to make consequential amendments to other Acts.

While Bill S-5 contains important provisions to require plain packaging of tobacco products and to regulate vaping, I am concerned that new changes made to the Tobacco Act by the other place may undermine the fundamental purpose of this bill to better regulate tobacco and vaping products.

I am also concerned by additional amendments which highlight the importance of ensuring a consistent approach to regulating tobacco, vaping and cannabis products, a concern which was expressed clearly by our colleague Senator Joyal a few days ago in this chamber.

Let me be clear: Bill S-5 is a critical tool to protect Canadians from tobacco products and to help them quit smoking. I supported Bill S-5 when it was first passed by the Senate in June 2017, nearly one year ago. I am proud of our cooperative, non-partisan work to improve the bill. I want to recognize the dedication of the bill’s sponsor, Senator Petitclerc. As parliamentarians, together, we worked very hard to get it right.

Now, at this juncture, we must carefully consider the message received from the House of Commons and assure ourselves that the amendments it contains are consistent with the intent of the legislation.

I want to begin by calling honourable senators’ attention to an amendment made by the House of Commons Health Committee to clause 52 of Bill S-5, which was curiously not addressed by the Leader of the Government in the Senate in his remarks earlier this week.

The amendment to clause 52 would repeal section 42.1 of the current Tobacco Act, which requires that the proposed tobacco regulations be reviewed by the House of Commons and referred to committee before they can be made and published. This amendment is a direct clawback of parliamentary scrutiny and is deserving of our close attention.

Parliamentary review of regulations under the Tobacco Act — before they are made — is a critical tool to ensure transparency for an industry which has a long history of lobbying behind closed doors.

Indeed, when the review provision was first added to the Tobacco Act by the House of Commons, it was said that committee review of proposed regulations:

. . . would go a long way toward legitimizing any proposed regulations precisely because it would allow stakeholders the opportunity to propose in public improvements to the regulations.

Honourable senators, despite our past success in reducing tobacco smoking rates, we must not be lulled into thinking that we are immune to the pressures of the industry. By including vaping products in the Tobacco Act, as Bill S-5 does, we are opening the door to even more corporate pressure from an industry increasingly dominated by big tobacco.

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I am hard-pressed to understand the logic in doing away with this regulatory oversight for an industry whose products have such enormous consequences for public health. The existing provision requires the House of Commons to review the regulations within 30 sitting days, which does not constitute an undue delay in the regulatory process by any reasonable measure.

Given the importance of transparency in regulating these highly interconnected industries that are tobacco and vaping, it is critical that future regulations continue to be debated in public and not behind closed doors. As we have not heard anything from the Leader of the Government in the Senate on this amendment, much less a convincing rationale for revoking the House of Commons’ authority, answers to this question should be sought by the Standing Senate Committee on Social Affairs, Science and Technology to which Bill S-5 was referred at second reading.

In addition to concerns about limiting parliamentary oversight of regulations for tobacco and vaping products, I wish to speak briefly to the concerns raised yesterday by Senator Joyal with regard to the emerging double — or should I say triple — standard for packaging and promotion of tobacco, vaping and cannabis products.

We must remember that when Bill S-5 was first before this chamber, the environment was very different. While the government had announced its intention to legalize marijuana, nothing was known about its plans to standardize the packaging and promotion of dried cannabis.

However, it seemed as though the government would pursue a comparable approach. Even the government’s own Task Force on Cannabis Legalization and Regulation advised that plain packaging for cannabis products should be required. And for good reason. A comparable approach for cannabis is critical to protect our kids from the harms of smoking.

As I noted in this chamber several months ago, we cannot forget that when we talk about cannabis use, we are talking about smoking. Recent data from the Canadian Cannabis Survey tell us that smoking marijuana is the most prevalent form of recreational consumption at 94 per cent compared to other methods.

At the time, I quoted Professor David Sweanor, a noted public health expert at the University of Ottawa, which bears repeating again today:

Smoking involves combustion. Combustion results in unwanted and harmful chemicals being inhaled into the lungs. Although the way people smoke tobacco and marijuana differs in ways such as the amount they smoke and how deeply they inhale, the fact remains that inhaling smoke is a particularly harmful practice.

Since Bill S-5 was last before this chamber, we now know that Health Canada plans to subject dried marijuana to much less stringent packaging and labelling requirements than tobacco. Given what we know about the harms of smoking any product, combined with the government’s stated commitment to reducing the harms associated with cannabis use, the government’s incoherent approach to regulating these two substances is baffling and cause for serious concern.

In considering the “message” received from the other place, we must ask ourselves why the government believes a different set of rules should apply for marijuana. This is also an important question for the Committee on Social Affairs, Science and Technology, which is presently seized with these very issues in relation to Bill C-45.

Finally, honourable senators, I wish to highlight one additional point on which the Social Affairs Committee might consider and report to this chamber. As the Leader of the Government in the Senate noted earlier this week, we now know considerably more about the public health effects of e-cigarettes, more than we did when Bill S-5 was first drafted, particularly when it comes to their effectiveness in helping people quit smoking.

Indeed, the government has acknowledged this fact through its new-found support for the House of Commons’ amendment banning lifestyle advertising for vaping products. Of course, we had tried to do this ourselves when the bill was first before the Senate, and we were told that the Charter would not permit it. But it seems that the government has come to its senses and recognizes a growing body of evidence which calls into question the value of e-cigarettes as a tool for quitting smoking.

Better late than never, but the move raises additional questions that would best be examined by the Social Affairs Committee. This is particularly true given the fact that if Bill S-5 is adopted in its current form, certain types of advertising for vaping products will be allowed until the time that regulations are made under the act. This situation would be directly at odds with the new evidence that e-cigarettes may be a danger to public health. And as we know all too well with tobacco, once the genie is out of the bottle, it is nearly impossible to put it back in.

Honourable senators, a review of all of these issues by the Social Affairs Committee is the logical and responsible thing to do now.

We must see this legislation through to the end, seek to understand the true intention of the amendments from the other place, before giving them a rubber stamp, and ensure we are doing all we can to protect Canadians from the harms of smoking, whether those harms come from inhaling tobacco or marijuana.

Motion to Refer Message from Commons to Social Affairs Committee Defeated

Hon. Judith Seidman moved:

That the motion, together with the message from the House of Commons on the same subject dated April 27, 2018, be referred to the Standing Senate Committee on Social Affairs, Science and Technology for consideration and report.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

I’m sorry. Senator Eggleton did note that he wanted to ask a question. Senator Eggleton.

Hon. Art Eggleton: Senator Seidman, the sponsor of the bill, when it was before us, indicated that the amendments are falling quite in line with the general direction that our Committee on Social Affairs had previously determined on the bill.

Given all of the things we have before the committee right now, Bill C-45 of course, why don’t you address it here in the house? If you’re making a case for a change, move an amendment here in the house as opposed to sending it to the committee.

Senator Seidman: I think because the Social Affairs, Science and Technology Committee studied Bill S-5 for quite a substantial amount of time, as a result, it seemed appropriate that the issues to be looked at should go back to the committee originally charged with overseeing the bill.

The Hon. the Speaker: Before we go to Senator Patterson, I believe there is a question.

[Translation]

Senator Dupuis, do you wish to ask a question?

Hon. Renée Dupuis: May I put a question to Senator Eggleton, Chair of the Standing Senate Committee on Social Affairs, Science and Technology?

The Hon. the Speaker: If you wish to ask a question, it must be addressed to Senator Seidman.

[English]

Hon. Dennis Glen Patterson: Honourable senators, I did like what I heard from our current federal government about greater accountability and transparency. It is in that context that I want to speak in support of Senator Seidman’s motion, because I do believe that review of the all-important regulations which will be made under this bill will ensure that the important details of the content of the regulations are not merely left to officials to develop behind closed doors or to negotiate with stakeholders behind closed doors.

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If our proper role as parliamentarians is only to approve legislation which enables the development of regulations on the important details of the matter, in this case vaping, we are surrendering our duties as parliamentarians to officials. Parliament exists to hold the executive branch accountable. It is not enough to give parliamentarians the authority to scrutinize enabling legislation but not the regulations that will result.

Honourable senators, it’s trite to say that the devil is in the details, but I do believe that this is a perfect example of a situation where if we are to hold the government accountable and if the government is to be transparent, then we must, as Senator Seidman said, see this legislation through.

I thought that the provision in the bill, which was repealed, was a reasonable provision. It required that the scrutiny of the regulations be done in a timely manner, in 30 days, by the appropriate committee. And, colleagues, there is a little-known committee that exists called the Scrutiny of Regulations Committee. I understand that that committee is way behind in the backlog of years and years of regulations that it’s bogged down considering.

This amendment would allow the appropriate committee, in this case the Social Affairs, Science and Technology Committee, which has developed considerable expertise on the health issues that are involved in Bill S-5, to take a look and see whether the regulations were done properly and whether the regulations reflect the spirit and intent of the bill. I don’t think that’s an unreasonable request that Senator Seidman is making. Frankly, I would hope that the Government of Canada would welcome the opportunity for the Senate, with the expertise that has been developed in studying this bill, to help make sure that the regulations are done right.

Therefore colleagues, as I look at Bill S-5, and as I also look at the greenhouse gas legislation, which is now before committee, and also as I look at Bill C-45 and maybe Bill C-46 as well, we’re giving the government carte blanche authority to develop regulations on matters of crucial impact on public health and safety. We must offer to help the government to make sure that the regulations are developed properly. We can’t leave that up to officials.

Honourable colleagues, I think what Senator Seidman is proposing is reasonable. It’s really ultimately about our duties as parliamentarians to hold the executive branch accountable. Giving a carte blanche by passing enabling legislation, without then being able to follow up and find out how the regulations were developed, whether they were developed in the spirit of the bill, whether they properly reflect stakeholder input, rather than letting that happen behind closed doors, outside of the purview of Parliament, is surrendering our parliamentary responsibilities to officials.

With that, honourable colleagues, I do ask you to consider this recommendation of Senator Seidman positively and to not forego our parliamentary obligations for scrutiny, accountability and transparency. Thank you.

Senator Eggleton: I have a question for Senator Patterson.

Both you and Senator Seidman have made the same argument about the scrutiny of the regulations, but I have also heard additional things. I got the impression that Senator Seidman felt that the committee should now have a look at it because it is a year since we last dealt with the bill at committee and at this chamber. However, what we have in front of us is a message, and my understanding is we can only deal with the message. Therefore I don’t know why that would require going back to committee if it’s a very narrow examination. If there is a motion you want to make or Senator Seidman wants to make with respect to changing the message in some way to reflect what you have been talking about in terms of the regulations, then why not do it here as opposed to sending it back to committee when there is a very limited, narrow examination that can be conducted?

Senator Patterson: I believe that the committee has the expertise on Bill S-5. It has been studied intensively. The committee has a very good reputation for its detailed examination of bills like this that sometimes are given less scrutiny and less detailed study in the other place. If this matter is referred to the committee, I have confidence that the committee will make an appropriate recommendation to this chamber. Thank you.

The Hon. the Speaker: Senator Sinclair, did you wish to ask a question?

Hon. Murray Sinclair: At the risk of drowning in the quagmire of procedural issues, Your Honour, I’m trying to determine where we’re at in the overall scheme of things. As I understand it, we have a message from the house and we have a motion from Senator Harder to deal with the message. And now do we have a motion to refer the motion of Senator Harder to the committee? Is that what we’re being asked?

The Hon. the Speaker: Yes.

Senator Sinclair: If that motion is defeated, then we still have to deal with the motion of Senator Harder; am I correct?

The Hon. the Speaker: That’s correct, Senator Sinclair.

Senator Sinclair: Thank you very much. That helps me understand where I’m swimming.

Let me then begin by speaking to the motion to refer, if you don’t mind, now that I’ve clarified in my head what we’re dealing with.

I gather the issue that is being asked to be referred for study and discussion has already been discussed at committee level. In fact, it was part of the rationale that led to the amendment made to the original bill, which was rejected in the other place. So as a result, I don’t understand why we need to refer it to another committee to study all over again because our committee has already studied it. I think the important thing for us to decide is whether or not we support the motion or we don’t support the motion of Senator Harder. Referring the motion to another committee is, in fact, just going to delay the question of how we respond to the message.

My encouragement to my colleagues will be to defeat Senator Seidman’s motion to refer and let’s deal with Senator Harder’s motion to either accept the message or not accept the message. Thank you.

The Hon. the Speaker: Senator Seidman, did you wish to ask a question of Senator Sinclair?

Senator Seidman: Yes, thank you.

Senator Sinclair, may I ask you a question, please?

Senator Sinclair: Certainly you can ask; whether you get an answer or not will depend on my understanding of the process.

Senator Seidman: Wonderful. I’m not quite sure what makes you convinced that the Social Affairs Committee would have dealt with the amendment that came back from the House of Commons. We certainly did not. The amendment that came back from the House of Commons is something that exists in the Tobacco Act, which our committee never dealt with. It was simply in the Tobacco Act, and the House of Commons chose to remove it from our bill, from the Tobacco Act, so now vaping is part of the Tobacco Act. What you have is a House of Commons that dealt with a totally different issue that our committee never studied.

The fact is that removal of parliamentary oversight, which is what they did, ought to be something that is seriously considered by our committee, which dealt with the bill right from the outset. Thank you.

Senator Sinclair: Quite frankly, if you’re saying that the committee didn’t review the provisions of the bill clause by clause, I’m quite surprised to hear that. The reality is that this would have been one of the clauses that the committee would have considered in order to put the bill back in front of the chamber in order to be voted upon. So the reality is that the committee has already considered this clause, and it went to the house and was rejected by the house. Now, we have to decide whether this chamber wishes to put the clause back in its place or not. I don’t think we need to study it any further.

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Senator Seidman: I’ll ask the question again: Why are you so convinced? This is a clause that is in the Tobacco Act. It is not something that the committee — Bill S-5 is vaping law. However, the vaping law becomes part of the Tobacco Act. Our committee indeed looked at it, and, indeed, this clause was in the Tobacco Act. The oversight is in the Tobacco Act, which includes the vaping law. We were convinced there would be ongoing parliamentary oversight.

What the House of Commons did was they removed it. That was their amendment that came in their message to us now. They have removed parliamentary oversight.

The Hon. the Speaker: Senator Sinclair?

Senator Sinclair: There is no question there, but thank you.

Hon. Jane Cordy: I was going to adjourn the debate, but, instead, I’ll read through the papers on my desk and make some comments. Honourable senators, I used to be a teacher. I usually like to have a speech in front of me. So, if it’s a bit disjointed, I apologize beforehand.

In this bill, things changed considerably. I was the critic for the independent Liberal side. Things changed quickly with this bill between second reading and third reading, and I found the tone and the content of the senators who spoke on it changed even within that period of time.

In the almost a year since this bill came to the Senate and went to the House of Commons, it has changed again considerably. It’s unusual, too, that we have a government bill that starts in the Senate.

It’s the reverse. The House of Commons is usually getting our amendments. In this case, we got the amendments from the House of Commons. I was really pleased to see that the House of Commons committee looked at this and came forward with some changes to the legislation.

I’ll give you just a sense of some of the changes that were made, some of the amendments that were made in the House of Commons.

Give power to the Governor-in-Council to allow, in the future, vaping substances that are available by prescription to be exempt from the youth access restrictions. This simply means that if a young person has a prescription that can be taken through vaping, then they will be exempt from the youth access restrictions, which is a positive thing.

We know that the new tobacco heating devices have appeared on the market since the introduction of Bill S-5. These amendments restrict the promotion and design of these new devices. When I had representatives from the government in my office, they were showing me that, in fact, some of the new heating devices could be in different shapes that would be attractive to young people. We know the whole purpose behind the vaping legislation was no flavours, no ads that make vaping attractive to young people. In fact, one of the advantages, we think, of vaping — and this is all pretty new — is that it will stop people from smoking. We don’t want people to become interested in smoking through the vaping process.

One of the really good amendments, I thought, was lifestyle advertising. The bill said lifestyle advertising was to be allowed in targeted mailing and to be allowed in places that adults would frequent. That would be bars, for example. The House of Commons decided that they wanted all lifestyle advertising prohibited, and Senator Seidman referred to this earlier. I happen to think that’s a very good amendment. Again, we go back to how things have changed just in one year in terms of vaping, which is relatively new.

We know that an amendment was made to allow the export of the product with additives that are not allowed in the Canadian market. The amendment allowed that if foreign markets want that, then the industry would be able to export it to use to send it to other markets outside of Canada.

We know also that one of the amendments they brought forward was that vaping devices that are currently in the market don’t meet the Consumer Chemicals and Containers Regulations. That simply means the tiny little containers on the vaping devices will, according to regulations, eventually have to have childproof tops on them. Again, because it’s relatively new, they are saying that they will allow this for a reasonable period of time, and then producers will all have to meet regulations. They are only given a temporary exemption.

So, honourable senators, I actually congratulate the House of Commons for the job they did on this bill.

I appreciate the comments that were made by Senator Patterson. It was interesting, this morning, in Energy. You said the same thing. The devil indeed is in the detail in terms of regulation, but, if it were to go back to the committee, you would only be dealing with the message, just the message, not the regulations, not what should be in the regulations, simply the message that came from the House of Commons.

Honourable senators, I have gotten phone calls in my office from the Canadian Cancer Society. I have also gotten a letter from the Canadian Cancer Society. I’ll read part of it into the record: It said:

On behalf of the Canadian Cancer Society, I’m writing to express our support for the amendments to Bill S-5 adopted by the House of Commons. We would urge you to concur with these amendments.

In fact, one of the phone calls that I got yesterday said, “We know that you spoke on second reading and third reading on this bill; if you’re going to speak, Senator Cordy, would you please do it today? We don’t want this bill delayed any longer.” So the letter is very similar. It goes on to say:

While many of the amendments are technical in nature, perhaps I could highlight two amendments that were approved by the Standing Committee on Health, with all party support and with support from health organizations. The first of these is an amendment to ensure that all lifestyle advertising for vaping products is banned. The bill had banned most lifestyle advertising from vaping products associating with fashionability, status, masculinity, femininity, et cetera, but there were a few exceptions. The amendment removes the exceptions that had allowed lifestyle advertising in some places, such as bars and publications.

The second of these is an amendment to establish regulatory authority that could require health warnings be placed directly on cigarettes and other tobacco products themselves, consistent with international guidelines. The bill already contains such regulatory authority for vaping products, and the amendment would ensure that there is parallel authority for tobacco products as well. This amendment would also help deal with contraband, as required markings would identify products intended for legitimate sale in Canada, thereby further assisting enforcement authorities.

Because of that, I will be voting against the amendment made by Senator Seidman, in light of what I have read about the bill, in light of what I read about the amendments, in light of briefings that I received and, most importantly, in light of the phone calls and the written letter that I have received from the Canadian Cancer Society. So I will be voting against this amendment made by Senator Seidman, and I will be voting in favour of the motion by Senator Harder that we deal with this bill today.

The Hon. the Speaker: Do you have a question Senator Seidman?

Senator Seidman: Will you take a question, senator?

Senator Cordy: Yes, I will.

Senator Seidman: I appreciate all of the points that you made, and I will say that the points that I spoke to are all issues that are addressed by this message, all of them. They are addressed to the amendments that were made by the House of Commons.

Now, I will ask you a question because I do believe and agree with you that the advertising component is critical, especially advertising around our kids. Health Canada’s own briefing note, from 2016, says that a number of studies now link e-cigarette ad exposure with a significantly greater likelihood of e-cigarette use among youth. So, indeed, there has been a better restriction on lifestyle advertising to youth.

However, the regulations are not yet written, and they have left the doors open, as things exist, to advertising for preference of brand and information advertising.

So my question about the change in the amendment that was made by the house is this: Instead of leaving the door open, without the regulations being written, why not restrict all advertising to kids — not just lifestyle advertising but all advertising — until the regulations are written?

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Senator Cordy: I agree with the Canadian Cancer Society. I would like the bill dealt with now.

I’ve been in this chamber for 17 years. I’ve not ever had a bill with the regulations before me. It would be great to have all the regulations in front of us, but we do have to allow some flexibility in framework legislation.

Regarding lifestyle advertising, I think the amendment that they made on the other side to ban it completely was a very positive step. If we had wanted all advertising banned completely, then maybe we should have thought about doing that on the Senate side when it was over here. I think the lifestyle ban, a complete prohibition, is a step in the right direction.

We do have the Scrutiny of Regulations Committee, and I know that Senator Patterson said they’re far behind. Perhaps those who are members of the Scrutiny of Regulations Committee are going to have to sit more often, as many other committees in this chamber are doing in times like this. But we do have a process in place. We do have a Senate committee in place to look at regulations that are being brought forward.

Senator Seidman: Question, Senator Cordy: Are you aware that Scrutiny of Regulations only looks at regulations after they’re published and written? They don’t look at regulations before they’re written.

Senator Cordy: That’s a good point. I think it’s really important that those of us who have spoken to the department officials and those of us who have great concerns about this keep a close eye on it, monitor it and make sure the regulations that are coming forward are consistent with what we believe.

The Hon. the Speaker: Are honourable senators ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker: All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion, the “nays” have it.

And two honourable senators having risen:

The Hon. the Speaker: Do we have agreement on the bell? The vote will take place at 3:32 p.m..

Call in the senators.

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Motion negatived on the following division:

YEAS
The Honourable Senators 

NAYS
The Honourable Senators 

ABSTENTIONS
The Honourable Senators 

The Hon. the Speaker: Resuming debate on the main motion. Are honourable senators ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator:On division.

(Motion agreed to, on division.)