Canadian anti-smoking groups have applauded the decision by Quebec’s Court of Appeal to overturn a previous lower court judgement that struck down some provisions of the 2015 Tobacco Control Act putting vaping products under tobacco regulations.
The highest court in the province ruled that the Quebec government acted within its rights in applying strict rules, including limits on where e-cigarettes can be advertised and prohibiting promotion visible outside stores.
“In this case it was…reasonable for the legislator to intervene to limit the potential effect of electronic cigarette advertising, particularly towards youth,” wrote Justice Benoit Moore in a 76-page ruling, saying the law constituted a reasonable restriction on freedom of expression. “Nor can one exclude the analysis of the legislator of the risks associated with the fact that the vaping industry evolves and is being progressively taken over by tobacco companies.”
He said provincial officials had the right to apply tobacco laws to vaping products – such as restrictions on advertising – keeping ads away from young people and non-smokers.
The Quebec Department of Health and Social Services has not yet responded to requests from ECigIntelligence for its reaction to the success of the appeal.
Possible impact across Canada
The ruling comes in response to a 2019 judgement by Justice Daniel Dumais of the Quebec Superior Court, who concluded that some of the province’s restrictions went too far.
“In support of his appeal, the Attorney General of Québec (AGQ) pleads that the judge errs in concluding that there has been an infringement of the integrity of smokers,” reads the appeal ruling in reference to the lower court’s decision.
It continues: “The judge commits a second error when he finds a breach of integrity in the absence of any coercive prohibition by the legislator. The right to integrity does not impose a positive law on the state, nor does it require it to facilitate access to a product.”
Rob Cunningham, senior policy analyst for the Canadian Cancer Society, hailed the appeal ruling as a victory for public health and said it could have an impact across Canada. “The Quebec Court of Appeal provides support for the federal regulation specifically, as well as generally for other federal and provincial legislation on e-cigarettes,” he said.
The legal saga began in 2015 when Quebec adopted amendments to its Tobacco Control Act, subjecting e-cigarettes to the same rules as traditional cigarettes. It said customers had to be at least 18 to enter a vape store and buy e-cigarettes, that vaping products must not be visible from outside the store, and that advertising was allowed only in publications at least 85% of whose readers were adults.
A group of Quebec vaping stores and the Canadian Vaping Association (CVA) challenged the law in court, arguing that it violated guarantees to Canadian charter rights such as security and freedom of expression.
What This Means: This last appeal court ruling may not be the end of the challenge to Quebec’s restrictions. A further appeal could be taken to the Supreme Court of Canada, which could keep the challenge going for months, if not years, if the national court were to agree to hear the case.
CVA president Shaun Casey said the association was still studying the ruling and would decide in the coming days whether or not to launch a higher appeal.
– Elizabeth Thompson ECigIntelligence contributing writer
Photo: Bernard Gagnon