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Quebec judge rules law that prevents vaping from being advertised to smokers violates “freedom of expression”

Quebec is within its rights to legislate on vaping, but a provision banning demonstrations of vaping products inside shops or specialized clinics goes too far, a Quebec judge has ruled.

In a judgment released Friday, the court also invalidated another section of the provincial law prohibiting the advertising of vaping products to smokers seeking to kick their habit.

A legal challenge was brought by an association representing Quebec vape shops and the Canadian Vaping Association.

They argued that parts of the Tobacco Control Act adopted by the Quebec government in 2015 violated their fundamental rights, notably freedom of expression.

Justice Daniel Dumais has suspended his ruling for six months to allow lawmakers to rewrite the problematic sections of the province’s tobacco law to make them valid.

The Quebec association had also argued the province had overstepped its legislative authority by including vaping products.

However, Dumais, who heard arguments in the province’s Superior Court over 10 days last December, ruled Quebec had a right to legislate on the issue.

“Overall, the law is constitutional,” Dumais wrote in a lengthy decision May 4. “Quebec has jurisdiction to legislate as it has done. The Quebec legislature has jurisdiction and could validly pass the contested laws.”

The wide-ranging law was designed in part to put the popular e-cigarette on the same footing as other tobacco products and anti-tobacco groups argued that e-cigarettes needed to be subjected to regulations to prevent youth from using it.

But the judge agreed to strike down two sections of the law that prohibited the demonstration of vaping products inside speciality shops and smoking cessation clinics.

The judge also struck down sections of the law that prevent vaping from being advertised to smokers who aim to stop smoking, ruling it violates freedom of expression.

The Canadian association had argued those sections of the law violated the right to integrity and personal security as well as freedom of expression. The judge also struck down sections of the law that prevent vaping from being advertised to smokers who aim to stop smoking, ruling it violates freedom of expression.

The judge wrote that while the provisions take into account the well being of non-smokers, it seemed to forget the rest of the population -including those smokers who are looking to quit.

“The problem with the current restrictions is that the public – particularly smokers – do not distinguish between smoking and vaping,” the judge wrote. “They must be permitted to know the difference. Rather than silence, it is sometimes necessary to educate and let people know that vaping exists first and foremost for smokers.”


Health advocates urge Quebec to appeal vaping ruling amid spike in youth vaping

Anti-smoking groups are urging the Quebec government to appeal a court ruling that invalidated certain sections of the province’s tobacco legislation dealing with vaping, as health officials across the country grapple with an apparent spike in youth adopting the habit.

The ruling handed down by Quebec Superior Court on Friday confirmed the province’s right to legislate on vaping, but struck down provisions banning demonstrations of vaping products inside shops or specialized clinics.

It also struck parts of the law prohibiting the advertising of vaping products to smokers seeking to kick their habit.

Flory Doucas of the Quebec Coalition for Tobacco Control said the judgment comes as Canada is dealing with a growing number of youth using vaping products since the federal government passed a law formally legalizing and regulating vaping, or e-cigarettes, in May 2018.

And, she notes, experience with the tobacco industry suggests advertising that targets smokers could also ensnare others.

“It is very worrisome to think that Quebec, one of the only jurisdictions in Canada that had a comprehensive, well-balanced framework for vaping products would now see its framework weakened when in fact other governments _ and the federal government _ is calling on provincial governments to help it tighten and restrict the marketing of these products to address the youth epidemic,” Doucas said in an interview Saturday.

The challenge to Quebec’s Tobacco Control Act, adopted in 2015, was brought by the Canadian Vaping Association and l’Association quebecoise des vapoteries, who argued the law infringed on its members’ freedom of expression.

Justice Daniel Dumais suspended his ruling for six months to allow lawmakers to rewrite the problematic sections of the province’s tobacco law to make them valid.

The Quebec government has not commented on the ruling.

Doucas said the province should appeal, noting the Quebec measures were anchored on prevention and precaution, and make even more sense than they did in 2015.

Although vaping products are less harmful than tobacco products, Doucas said caution is necessary, as is protecting youth against a highly addictive habit whose long-term effects are not known.

Health advocates suggest a rise in vaping among Canadian youth has coincided with heavy marketing and promotion since the federal government passed the Tobacco and Vaping Products Act in 2018.

The Public Health Agency of Canada said in April it was alarmed by the trend and that a new generation of youth addicted to nicotine could lead to a resurgence in smoking and other health problems.

Also last month, federal Health Minister Ginette Petitpas Taylor launched consultations on potential new regulatory measures aimed at reducing the uptick of youth vaping. This consultation, which runs until May 25, is considering measures that include restricting online sales and certain flavours, and restricting the concentration or delivery of nicotine in vaping products.

Doucas said what’s happening elsewhere makes maintaining the Quebec measures even more important.

“Everything is pointing to things getting far more restricted based on this huge surge in youth vaping,” she said.

The Canadian Cancer Society said it is also concerned about youth vaping and called for an appeal.

“The result of this ruling is you could have the potential of having e-cigarette advertising anywhere, at any time,” said Rob Cunningham, senior policy analyst with the society. “That simply would be wrong in terms of protecting youth.”


© Louis Jalbert 2017

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