Court of Appeal Validates Quebec Law Restricting Advertising of Vaping Products

The Quebec Court of Appeal, in a decision adopted unanimously[1] validated Quebec legislation restricting advertising of vaping products. This decision overturns the judgment of May 3, 2019 of the Superior Court of Quebec which had invalidated certain provisions of the Tobacco Control Act Relating to Vaping ProductsThis decision by the Court of Appeal was welcomed by public health associations who consider that it protects young people from tobacco industry marketing.[2].

In its decision of May 2019[3]The Quebec Superior Court had ruled that while the government had the right to legislate on the issue, some of the provinces' restrictions on vaping products — including a ban on advertising e-cigarettes — went too far because they could prevent smokers from benefiting from less harmful alternatives. But the appeal court judges ruled that the Quebec government had the right to limit the potential impact of e-cigarette advertising on youth and non-smokers.

The Court thus confirmed the constitutionality of Quebec's vaping law in its entirety, rejecting objections that Quebec's legislation infringed federal criminal law power and that restrictions on advertising e-cigarettes constituted unjustified infringements of freedom of expression.

A protective ban for young people

In their decision, the judges cited research from the World Health Organization highlighting rising rates of vaping among young people. They questioned whether the ads were targeting smokers exclusively, without influencing others. Justice Benoit Moore said the fact that the vaping industry is evolving and "that it is gradually being provided by tobacco companies must be taken into account... it was therefore reasonable for the legislator to intervene to limit the potential effect of advertising on electronic cigarettes, particularly on young people."

Among the provisions upheld by the Court were legislative measures banning advertising of e-cigarettes except in publications with at least 85,000 adult readers, and prohibiting product displays in vape shops from being visible outside the store.

Rob Cunningham of the Canadian Cancer Society said the decision could have serious consequences. “Canadian-wide implications” making it harder for vaping industry groups to challenge federal legislation restricting e-cigarette advertising.

High consumption of electronic cigarettes among Quebec students

Vaping among Canadian youth has increased significantly in recent years. Data from the Canadian Student Tobacco, Alcohol and Drugs Survey in Quebec revealed that among 3rd grade students,^th and second, vaping increased from 6 % in the 2012-2013 school year to 22 % in the 2018-2019 school year, while among first and final year students, vaping increased from 9 % in the 2014-2015 school year to 29 % in the 2018-2019 school year.

Nationally, according to the same survey, in 2020, 14% of adolescents aged 15 to 19 reported having vaped in the 30 days preceding the survey.

Keywords: Quebec, Canada, vaping, advertising, Court of Appeal, justice, decision, youth

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[1] Decision of the Court of Appeal, province of Quebec, November 15, 2021

[2] Canadian Cancer Society, Canadian Cancer Society welcomes unanimous decision by Quebec Court of Appeal to uphold restrictions on e-cigarette advertising, November 17, 2021, accessed November 29, 2021

[3] Quebec judge declares parts of vaping legislation invalid after challenge, Global News, May 3, 2019, accessed November 29, 2021