New Brunswick Vape Shops to Challenge Flavor Ban in Court

Today, on April 26, news from foreign media reports that a lawyer representing electronic cigarette stores selling flavored products in New Brunswick, Canada, stated that he will file a constitutional challenge against the provincial flavor ban enacted in 2021.

Federal and provincial laws in Canada must comply with the Canadian Constitution, including its Charter of Rights and Freedoms, or they will be challenged. Previously, there was a possibility of overturning Canada's flavor ban on human rights grounds, but it has not yet been tested in court.

The accused vape shops will challenge the law

According to an online news service from the Fredericton Independent, criminal defense attorney Adrian Forsythe filed a not guilty plea last week on behalf of New Brunswick retailer East Coast Vape and announced that he would submit a constitutional challenge to the provincial capital, Fredericton.

East Coast Vape faces charges for selling flavored products at its Oromocto store in December, which violates New Brunswick's tobacco and electronic cigarette sales laws. Forsythe also filed a not guilty plea in provincial court on behalf of Vapecity Enterprises, which is also accused of violating the 2021 law.

Forsythe told the Independent that his law firm, Gorham Vandebeek LLP, also represents other clients accused of violating the same law, and he hopes to use the same defense for them. According to today's Independent report, the cases involving defendants represented by Gorham Vandebeek have all been postponed until May 3 to determine trial dates.

Reducing the appeal of electronic cigarettes may violate the constitution

The Canadian Constitution Foundation released a report in 2020 outlining potential constitutional challenges to Canada's electronic cigarette laws. The author, Dr. Leo Sirota, a law professor at Auckland University of Technology, stated that the flavor ban and nicotine strength restrictions may violate the Charter because they reduce the effectiveness of electronic cigarettes as harm reduction tools.

Sirota wrote: These regulations aim to protect non-smokers from the potential dangers of electronic cigarettes themselves, but worse, they may become a pathway to smoking. However, they could seriously harm current smokers for whom electronic cigarettes may be an important and often the most effective harm reduction technology.

Sirota stated that reducing the appeal of electronic cigarettes to smokers may infringe on the rights not to be deprived of life, liberty, and security of the person, which are protected under Section 7 of the Charter.

According to today's Fredericton Independent report, a civil lawsuit was filed in 2021 (unrelated to the above case) challenging New Brunswick's flavor ban on these grounds. The plaintiffs in that lawsuit failed to persuade the court to issue an injunction during the case debate, and a trial date has not yet been scheduled.

Five provinces in Canada have active flavor bans

New Brunswick banned the sale of flavored electronic cigarette products (except tobacco flavors) in 2021. Three other provinces or territories—Nova Scotia, Prince Edward Island, and the Northwest Territories—also have similar bans. Nunavut has passed a ban but has not yet implemented it.

Last week, Quebec—Canada's second most populous province—released a draft rule banning non-tobacco flavored electronic cigarette products. The rule will take effect 90 days after publication unless public consultations persuade the provincial health department to reconsider.

The other three provinces—British Columbia, Ontario, and Saskatchewan—restrict the sale of flavored products to adult-only stores, such as vape shops.