The backlash against “evidence-based policy” turns out to have been unnecessary: the fad was over before it started. This is hardly surprising, considering very few politicians who drop the phrase into their stump speeches can explain what it means. While the phrase still finds its way into the odd government press release, it turns out that, in practice, it means just what politicians usually mean when they refer to “evidence”: selective data that supports one’s preferred policies and ignores data that doesn’t.

This explains why Bill S-5, the federal government’s overhaul of the Tobacco Act, is obsolete before it has even been debated in the House of Commons. The proposed changes completely ignore growing evidence of the personal and public health benefits of new noncombustible alternatives to traditional cigarettes, including vaping, smokeless tobacco, and e-cigarettes (which heat tobacco to extract nicotine without smoke). The failure to engage with this evidence will compromise the Bill’s constitutionality.

A study by Public Health England has found that vaping is 95 percent safer than smoking. This means that encouraging persistent smokers to switch to vaping presents an enormous public health opportunity that would save hundreds of thousands of lives and billions of dollars in Canada. There have been fewer studies of noncombustible e-cigarettes, but what evidence there is suggests they are also substantially less damaging than ingesting tobacco smoke. That is why countries like the UK, Sweden and others are actively encouraging these new, less dangerous alternatives that save lives and public health dollars.

Bill S-5 ignores all this. Despite evidence submitted to the Senate Standing Committee on Social Affairs, Science and Technology about the benefits of the UK’s approach, the Bill conspicuously omits the concepts of “harm reduction” or “smoking cessation” from the list of the Tobacco Act’s stated goals. It’s almost as if the government didn’t notice evidence that it wasn’t interested in acknowledging. Instead of encouraging smokers to switch to less harmful products, the government is extending the old “abstinence only” antismoking policy — along with most of the existing restrictions on marketing and selling cigarettes — to new vaping and e-cigarette products.

The Supreme Court of Canada has ruled that the Charter right to “life, liberty, and security of the person” includes the right for addicts to access less harmful alternatives to lethal substances. In 2011, the Supreme Court ruled that the federal government had to approve a permit for a Vancouver drug injection site that operated as an exception to criminal drug laws. Laws that make it unnecessarily difficult for smokers to learn about the health benefits of switching to demonstrably safer technologies or to access these products run afoul of this harm reduction principle.

Bill S-5 also makes possible new restrictions on tobacco advertising in the form of “plain packaging” rules that limit the design, fonts, and even the colours of brand packaging. This is consistent with the 2015 mandate letter sent to the minister of health, and it is also almost certainly unconstitutional.

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Tobacco laws have a rocky constitutional history in Canada. In 1995, the Supreme Court struck down a law imposing an almost complete ban on advertising, stating it was an unjustified violation of the Charter right to free expression. This was despite the Court accepting the trial court’s finding that “the mass of information, studies and research gathered in Canada and throughout the world, particularly during the past 25 years, makes it abundantly clear that tobacco use constitutes a substantial and pressing concern in Canada.”

As outlined in the health minister’s mandate letter, the new plain-packaging proposal goes even further than those unconstitutional restrictions on advertising and labelling. Worse, it does not differentiate between traditional cigarettes and new e-cigarette technologies. The extensive evidence of serious health risks that the Supreme Court weighed in deciding the constitutionality of earlier restrictions on tobacco advertising applied only to smoking traditional cigarettes. If it does not have for the new technologies a “mass of information, studies and research” like that amassed on the harms of tobacco use, the government can’t begin to justify applying the restrictions contained in Bill S-5 to e-cigarette or vaping packaging and advertising. It probably can’t even legally justify applying the existing rules to those new technologies.

Government should not stand in the way of consumers seeking less harmful alternatives to cigarettes. And it cannot curb the manufacturers’ free speech rights without clear and well-established evidence of their products’ serious health risks. If the government is to avoid lengthy and costly constitutional litigation that it will likely lose, it needs to step back and rethink these elements of Bill S-5. To put it in terms this government campaigned on, it should base its policies on evidence, not just charge ahead with its political agenda.

Photo: Shutterstock, by Dragana Gordic

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Howard Anglin
Howard Anglin served as chief of staff to Jason Kenney, Minister of Citizenship and Immigration. He subsequently served as senior adviser, legal affairs and policy, and then deputy chief of staff to Prime Minister Stephen Harper.

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