As expected, a constitutional challenge has just been filed today. The lawyers of the Canadian Vaping Association (CVA) characterize the new provisions under the Provincial Bill 44 as a “legislative overkill” and will ask the Provincial Government to justify its position against vaping.
Update: April 12, 2016
A communiqué by the CVA has been released shortly after the publication of this article.
Constitutional challenge to Bill 44
The legal challenge cites the Canadian and Quebec Charters of Rights and Freedoms, the new vaping restrictions infringe on the:
- Rights to security of the person,
- Freedom of expression.
The suit challenge various aspects of the law, including:
- The ban on demonstrating, sampling and using vaping devices within specialized shops, arguing the ban impeds access to a product that helps smokers reduce health risks,
- The restrictions on advertising preventing the vaping industry from promoting products, even to smokers,
- The restrictions preventing vape shops from displaying vapor-related products in-store.
For Regulatorwatch.com, Brent Stafford inteviews Maître Audrey Boctor (Irving-Mitchell-Kalichman, Montreal), constitutional lawyer for the CVA. She explains that the firm filed today a constitutional challenge against certain provisions of the Tobacco Control Act.
Freedom of expression
The Charter of the Rights and Freedoms guarantees to all Canadians the right to express themselves. The government has the right to limit that expression but only under limits that are acceptable in a democratic society.
CVA’s view is that some of the provisions of the Tobacco Control Act are going too far: the vape professionals should be able to offer a product with all information and in the safest way for the customer. Demonstrating the products should be allowed into specialized shops and the client should be allowed to try the product in the store.
Rights to security of the person
By imposing those restrictions, people are prevented from having access to a product that offers them a possibility to reduce the harm of smoking.
Vaping products are legislated as tobacco products despite scientific research is supporting that it is a safer alternative that can help smokers to reduce their tobacco consumption. Instead of treating vaping at the same level of nicotine paches or gums, it is being treated exactly the same as smoking. It is the the legislative overkill comes from.
It is up to the Government to justify that choice
The Government has to provide justification to back up the regulations but the lawyer is confident. They still have to make evidence and demonstrate that these are necessary restrictions.
CVA believes that they developed robust arguments and jusrisprudence is clear: commercial speech is protected speech and there’s definitely an infringement at this level.
Some years ago, the tobacco companies launched constitutional challenges on advertising restriction and some provisions had been revised, somme others applied. But it was up to the Government to make the proof of the danger targeted by the law and that the law was proportionate and balanced.
The Government will now have the heavy task to make the same demonstration and, according to the jurist, the task will be even more difficult for vaping since the harm for smoking is not the same as for vaping.
The Government is facing an increasing number of challenges with regard to this legislation
Imperial Tobacco is preparing a challenge to the law and the Association Québecoise des vapoteries (AQV) has also launched a lawsuit.
The CVA is open to discussions with the Government at the Provincial and the Federal levels and will surely welcome the opportunity to discuss this matter with the officials, said Me Boctor. The CVA has a pan-Canadian experience and has been involved with this issue in many parts of the country.
RegulatorWatch.com and B. Stafford are acknowledged for the support material they provided.