Canadian Constitution Foundation analyzes the constitutionality of B.C.’s new vaping regulations

The new regulations, announced on July 21st by B.C. Health Minister Adrian Dix, include:

• A nicotine ceiling of 20 mg/mL imposed for products sold in all retail locations,
• Plain packaging for vaping substances, meaning no images or text permitted except for brand name and regulatory text.
• A requirement that all vaping substances be sold in packages bearing a skull and crossbones health hazard symbol, a health warning, concentrations and e-liquid volume sold.

Vaping is a recognized and essential form of harm reduction for current smokers who are looking to quit. These vaping regulations, particularly nicotine ceilings or flavour restrictions, have the potential to make them less attractive or effective as quit-aids—thus interfere with the right not to be deprived of life, liberty, and the security of the person protected by section 7 of the Charter. Rules that confine the sale of vaping products to shops that sell them exclusively will result in fewer smokers being exposed to them in convenience stores, where they likely already shop for their cigarettes.

In particular, the British Columbia legislation’s requirement of plain packaging is a distinct infringement on the right to free expression, protected by s. 2(b) of the Charter. The legislation undoubtedly affect smokers who could stand to benefit from switching to vaping products will have less opportunity to become exposed to them.

The extensive restrictions on packaging and display of vaping products fail to meet the requirement that restrictions on free speech be no greater than is reasonably necessary. A court in Québec tasked with reviewing similar legislation concluded that bans on branding and storefront advertising of vaping products constituted unreasonable infringements on the right to free expression.

In February 2020, the CCF released a report by Dr. Leonid Sirota, professor of law at the Auckland University of Technology Law School, that outlines possible avenues for a constitutional challenge to current and proposed vaping legislation in Canada. The report highlights the rights of a specific but important—and vulnerable— group: current smokers who are looking to quit.

“Vaping is, according to the best available scientific data, much less dangerous than smoking, because it does not involve combustion or the generation of smoke,” says Dr. Sirota in his report. The conflation of vaping and smoking within the law runs contrary to the best available evidence and risks conveying to smokers the impression that vaping is not meaningfully different and better than smoking, discouraging them from trying what may be the best harm-reduction method available.

In concluding, Dr. Leonid Sirota observed, “These regulations are meant to protect non-smokers from vaping as potentially dangerous in itself and, worse, a possible gateway to smoking. However, it risks inflicting serious harm on current smokers, for whom vaping can be an important, and often the most effective, harm-reduction technique.”

Original article from Canadian Constitution Foundation can be found HERE