August 31, 2020
Open systems, in their current form, will no longer be legal in Canada as of January 2021. In a repeat of experiments past, the government has once again inserted itself in an area it clearly has no expertise in and is making decisions that will affect a large consumer base in ways that it has failed to account for. And, as is so often the case with new legislation governing the masses, it isn’t based on anything we can actually measure: pre or post implementation. It’s unclear what problem this legislation would solve. Open systems have not presented a problem in Canada. Changing them to suit the government, on the other hand, will have serious implications.
A very brief explainer on the difference between an open and a closed system for anyone unfamiliar with the terms: a closed system is one that cannot be refilled. Examples include the STLTH, Juul, Vuse, etc. (There will be those in the peanut gallery shouting that those can be refilled and yes, they can, but it involves tampering with the device in a way that is not intended by the manufacturer.) Open systems, conversely, are intended to be refilled and offer the user a wider range of customizability together with its component parts (coils, mods, etc.). Both open and closed systems are used by people who vape around the world and are popular for their own reasons. There have, thus far, been no childproofing requirements of open systems (and no incidents involving them that would warrant a second look) and as such the systems have generally been designed with the adult end user’s experience in mind. Of the thousands of offerings in the open system category, very few would meet the child resistant requirements let alone have the documentation to back that claim.
When I wrote to Rob Graham at Health Canada in June of 2019 for clarification on the open systems section, he insisted that open systems would not, in fact, be banned but that they would be required to meet child resistant requirements and documentation. In other words, open systems will not be banned, just open systems as they exist today. This is a distinction without a difference. As has since become clear through meetings between government and industry representatives: most of the products in that category will not be compliant come January 1, 2021, which is as good as ban if not entirely as far-reaching. It’s a ban on 95% or so of the existing products, if I’m guesstimating. If you use open systems, it’s a ban of the first atomizer that springs to mind- it’s that broad.
To be clear: the government is not simply making an unnecessary rule (again). It’s doing that, sure, but it is also shaping the landscape in more significant ways. I can only assume that this open systems “solution” without a problem is intended to placate the lobbyists and media who have repeatedly suggested a link between vaping and child-harm. On paper it sounds okay. Child proof it all. But from an engineering perspective, the very controls that the government is seeking would interfere with the operability of the technology and make it more cumbersome and less enjoyable for adult users, many of whom quit smoking and took up vaping later in life and require consideration as well. While this measure will accomplish nothing of practical value it will further damage the vaping category in Canada, stifle innovation, depress investment, force (more) businesses to close (during/on the heels of a pandemic), advantage non-Canadian companies, and, no doubt, fuel a grey/black market. Of course some more cynical minded people might ask whether this is a bug or by design. I tend to credit the government with just being obtuse on this one though.
It is September now, the January deadline is fast approaching. While companies with contacts and industry associations have tried to make ingrounds with manufacturers and testing facilities, Canada is a fairly small market. Vape products in their current form are selling pretty well throughout the world. Given that these products can still legally be imported into Canada come the new year, the intense pressure that Canadian vendors feel isn’t shared by manufacturers. Add to which we’re in the middle of a goddamn pandemic; companies have other priorities than catering to an evolving Canadian market. There are a few products that do qualify under the new rules but the selection is very limited. Companies that traditionally carry open systems (and the accompanying products) as a main component of their shops will be reevaluating, delaying orders, and allowing some stock to run out in an effort to stay open and not be left holding too much stock/debt at the end of the year.
Canadian vendors are already somewhat gunshy in today’s uncertain regulatory environment. Politicians traditionally speak about a “lack of confidence” by a particular sector as being unfairly punitive and destructive. The economy “demands stability.” The tendency is to point out a lack of confidence when it threatens one of our larger or wealthier sectors but the principle applies to any sector and undeniably the vape industry has been subject to more than its fair share of uncertainty. That privileges companies and shops of a certain size, with the accounts to back risk taking and/or pay fines, and disadvantages smaller operations. The longer uncertainty is sustained, the more likely it is that only the biggest players will remain.
Technically Canadian vendors can still sell open systems (in their current form) past the January deadline: as long as they are exported outside of the Canadian market (so, sold into the United States for example). And, obviously, Canadians will still be able to order the products that they want from vendors outside of Canada. Of course prior to January 1st, there’s nothing stopping people from stocking up on everything that they want and have the means to buy. This puts people who are newer to vaping, and older vapers, and people for whom online shopping or stocking up is not an option at a disadvantage to people with an inside track and/or money. And it will leave smokers with fewer options. So, as always, those on the margins of an already marginal group will suffer the most.
While the government is managing to disadvantage both Canadian vendors and consumers, they aren’t actually accomplishing anything else with this new rule. But then, they don’t have to. The open systems “problem” was never defined. (“They’re not currently child resistant” can’t be taken as reason alone. Lots of stuff isn’t child resistant. There should be reason to subject a market to onerous demands.) The problem isn’t attached to child poisonings (there have been none in Canada), or to youth uptake, or to anything. If the measure accomplishes anything or nothing, it will have neither failed nor succeeded. We’ll have done all this and for what? If I keep returning to this point, it is because it is so infuriating, and something that we should insist change going forward.
Taking another perspective, to the anti-vaping crowd, any additional measures that increase the injury to industry and make it slightly less viable is a success. Anything that decreases the appeal of vaping products is also a success. These small chunks bitten off a piece at a time are all that is needed until eventually there is nothing left to pick over or until interest and investment in the category is so low as to be irrelevant. At which point our righteous crusaders can return their attention to the matter of smoking, if indeed they still care about that, or perhaps to the illegal vape market that they helped to create.If we look at how vaping came to be though: it was created by smokers for smokers, to displace smoking, using widely available parts and products. It has since evolved, largely guided by a user base who transformed the technology to better meet the varied needs of a diverse consumer group and to improve safety features. It’s a grassroots technology, basically, meant to address one of the biggest health crises of our time. It is user driven and, perhaps unsurprisingly, has been embraced by the community it is intended for at rates unseen in traditional nicotine replacement therapies. There is no ‘getting rid of it,’ thankfully, but there is making it less accessible, driving it underground, making it less safe. I fear that if government does not let up the pressure that is exactly where we are headed.
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