Status of Bill S-5
In 2012 Australia became the first country to introduce plain packaging for cigarettes. Several countries have since followed suit and many more, including Canada, have made commitments to introduce plain and standardised packaging measures to reduce the appeal of tobacco products. Following its commitment, Health Canada conducted a public consultation in Summer 2016 on potential measures for regulating the appearance, shape and size of tobacco packages and products.
In November 2016 the Senate introduced Bill S-5, entitled "An Act to amend the Tobacco Act and the Non-smokers' Health Act and to make consequential amendments to other Acts". Bill S-5 purports to "create a new approach to regulating vaping products and lay the groundwork for future regulation on plain packaging". Overall, the bill provides the governor in council with the power to make regulations to establish the plain and standardised packaging measures proposed by Health Canada in its consultation document. The bill also addresses key concerns raised by stakeholders during the consultation period.
Brand owners should be aware of this significant step towards implementing plain and standardised packaging for tobacco products in Canada.
Health Canada's consultation document included proposed measures for the regulation of tobacco product packaging and tobacco products that built on those introduced in Australia, including requirements such as:
- a single colour on all packages;
- a standard font type, size and colour for product brand names displayed on packages; and
- restricted use of brand elements (eg, distinguishing guise, logo, graphic arrangement, design or slogan) on packages.
In addition, Health Canada proposed certain innovative measures for the regulation of tobacco product packaging and tobacco products that go beyond Australia's regulations, including:
- limiting the number of words in the brand names displayed on packages;
- prohibiting the use of distinctive colours or designs (eg, grooves, holes or recesses) on cigarette filters; and
- requiring a single length and minimum diameter for cigarettes.
In addition to amending the Tobacco Act to regulate vaping products as a separate class of products, Bill S-5 would amend the Tobacco Act to allow for the regulation of the appearance, shape and size of tobacco products and their packaging.
Bill S-5 would allow for regulations:
- to establish standards respecting the characteristics of tobacco products and their emissions, including:
- their sensory attributes, such as appearance and shape;
- the dimensions, weight, components and performance of products; and
- the amounts and concentrations of substances which they may contain; and
- in respect of markings that may be displayed on tobacco products.
Other key changes of particular interest to brand owners whose trademarks are in use in the marketplace include:
- the repeal of provisions which allowed the use of a colouring agent to depict a trademark on a tobacco product;
- the repeal of a provision which allowed the depiction of a person, character or animal (real or fictional) that were trademarks used before December 2 1996; and
- the addition of a section which prohibits the promotion of a tobacco product, including by means of packaging, among other things, by using terms, expressions, logos, symbols or illustrations that are prohibited by the regulations.
Bill S-5 also proposes to address the potential loss of registered trademark rights as a result of compliance with the proposed act or its coming regulations (ie, through abandonment of a trademark, lack of distinctiveness or non-use for three consecutive years or more).
Bill S-5 has passed the first reading of a three-reading process in the Senate. Once approved by the Senate and then by Parliament, Health Canada can begin developing draft regulations.
For further information on this topic please contact Jennifer Ponton at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514) or email ([email protected]). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.