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 standardized packaging” measures to reduce the appeal of tobacco products. Following through on its commitment, Health Canada conducted a public consultation in the summer of 2016 on potential measures for regulating the appearance, shape and size of tobacco packages and of tobacco 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 Senate’s Bill provides the Governor in Council with the power to make regulations to establish the “plain and standardized packaging” measures proposed by Health Canada in its consultation document. The Bill also addresses some of the key concerns that were raised by stakeholders during the consultation period.

Brand owners should be aware of this significant step towards implementing plain and standardized packaging for tobacco products in Canada.

Proposed Measures for Regulating the Appearance, Shape and Size of Tobacco Products

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 requiring a single colour on all packages of tobacco products, a standard font type, size and colour for product brand names displayed on packages and restricting the use of brand elements (e.g., 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 would go beyond those of Australia, including placing limits on the number of words in the brand name displayed on packages, prohibiting the use of distinctive colours or designs (e.g. grooves, holes or recesses) on cigarette filters and requiring a single length and minimum diameter for cigarettes.

Bill S-5

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.

In particular, Bill S-5 would allow for regulations to be made:

  • to establish standards respecting the characteristics of tobacco products and their emissions, including the sensory attributes — such as appearance and shape — of the products and their emissions, the dimensions, weight, components and performance of the products, and the amounts and concentrations of substances that may be contained in the products or their emissions; and
  • in respect of markings that may be displayed on tobacco products.

Other related key changes of particular interest to brand owners whose trademarks are currently in use in the marketplace include:

  • repeal of provisions that allowed the use of a colouring agent to depict a trademark on a tobacco product;
  • repeal of a provision that allowed the use of the depiction of a person, character or animal, real or fictional, that were trademarks used prior to December 2, 1996; and
  • addition of a section which prohibits the promotion of a tobacco product, including by means of packaging, inter alia, 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, i.e. through abandonment of a trademark, lack of distinctiveness or non-use for three consecutive years or more.

Status of Bill S-5

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.

We will continue to monitor the status of Bill S-5 and report on this topic as it develops.