Canada: Request to suspend ban on sale of flavoured e-cigarettes rejected

A New Brunswick, Canada judge on Thursday rejected a motion to suspend the province's ban on the sale of flavoured e-cigarettes, ruling that the plaintiffs had failed to prove irreparable harm and that the measure was justified on public policy grounds.[1].

In September 2021, the province banned e-cigarette flavours, with the exception of tobacco, under the Tobacco and E-Cigarette Sales Act. An appeal was filed by a vape shop and five individuals, funded by the Canadian Vaping Association, to continue selling the products pending the outcome of an appeal of the legislation as a whole. They also sought a suspension of the requirement for vape shops to be licensed, effective April 1.

A protective measure for the youngest

Queen's Bench Justice Terrance Morrison said the government's intent with the legislation was to protect the health of residents, particularly young people. "When you weigh the economic interests of the applicants against the public interest, the balance tips dramatically in favour of the public interest," Morrison told the court. "In my view, the balance of inconvenience in suspending this provision weighs heavily in favour of denying the application."

For Rob Cunningham, lawyer for the Canadian Cancer Society who attended the hearing, "this is an extremely important judgment for public health in order to protect young people and to prevent their addiction to nicotine."

28% of New Brunswick middle and high school students reported using an e-cigarette in 2021. This result is significantly higher than the national average of 20 %. When we look at the results for the high school category, the use of these products increases and concerns 39 % of them in the province while the national average is 29 %[2].

A ban already in place in other Canadian territories

Similar bans on flavoured e-cigarettes are already in effect in Nova Scotia, where a similar appeal to suspend the provision was also rejected by that province's Supreme Court, in Prince Edward Island, and more recently in the Northwest Territories.

On Friday, March 25, the sale of flavoured vaping products was banned in Canada’s Northwest Territories. The decision was made following public consultations, which showed that 60,% of residents supported banning flavoured vaping products.

Last June[3], the Canadian federal government had published a bill aimed at banning all flavours in e-cigarette liquids, with the exception of tobacco, mint and menthol flavours, in order to reduce the attractiveness of these products to young people.

Keywords: Canada, New Brunswick, flavors, vaping, ban,

AE

[1] Kevin Bissett, New Brunswick judge denies motion to lift ban on sale of flavored e cigarette, Global News, March 31, 2022, accessed April 1, 2022

[2] Press release, Canadian Cancer Society calls for immediate action from New Brunswick government on youth vaping as new polling results released, May 10, 2021, accessed April 1, 2022

[3] Tobacco-free generation, In Canada, electronic cigarettes about to be regulated, June 21, 2021, accessed April 1, 2022