CANADIAN VAPING LAW: OVERVIEW AND CONSTITUTIONAL ISSUES
By Dr. Leonid Sirota, Senior Lecturer, Auckland University of Technology, Law School
In this soon-to-be-released report, Dr. Sirota, a leading constitutional scholar, summarizes the laws and regulations that govern vaping in Canada; assesses the effect of vaping legislation on harm reduction; and outlines possible avenues of constitutional challenges to the vaping legislation.
Canadian vaping legislation is to a large extent modeled on and often a replica of anti-smoking legislation. Two general points about the federal legislation are worth noting. First, it provides for the possibility of imprisonment for the violation of many of its provisions, especially by manufacturers. Second, unlike some provincial statutes, it regulates vaping separately from the smoking of tobacco. While in substance the regulations of vaping and tobacco are often similar, there are also non-negligible differences. Parliament has not chosen to treat vaping quite in the same way as smoking.
Many public health authorities, researchers, and advocacy groups have recognized that vaping can have important health benefits for 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. Vaping also seems more effective than other available methods at helping people quit smoking because it both imitates the gestures involved in smoking and delivers nicotine in quantities that can adequately replace the needs of smokers who have become addicted to it.
While tobacco legislation (especially at the federal level) sometimes distinguishes between vaping and smoking, it often fails to do so. This risks conveying to smokers the impression that vaping is not meaningfully different and better than smoking, discouraging them from trying what is actually the best harm-reduction method available. Beyond the perceptions that it may help generate, the vaping legislation already in force and being planned serves to reduce vaping’s appeal relative to that of smoking. Bans on flavoured vaping products serve this end. These bans disincentivize smokers and non-smokers alike from taking up vaping, but from the smokers’ perspective, they remove what could otherwise be an attractive “carrot” that would encourage them to take up vaping, in combination with the “stick” of smoking’s ill effects on their health.
Worse still, low limits on the nicotine content of vaping products can make vaping not only unattractive, but also ineffective for smokers who may require higher dosage to effectively transition from smoking to vaping, at least in the beginning
In addition to making vaping less attractive and less effective, legislation is also making it less accessible in various ways. Vaping products are required to be hidden and cannot be freely advertised, making it more difficult for smokers to become acquainted with them.
Rules that have the effect of confining the sale of vaping products to shops that sell nothing else also means smokers are less likely to come across them in places where they normally shop, especially for cigarettes for which vaping products ought to be a preferred substitute. Restrictions, such as the ones proposed in Ontario, on the ability of any vape shops to operate would make things worse still, potentially denying smokers access to this form of harm-reduction altogether.
Constitutional and Charter Issues
One obvious issue with the way in which vaping is regulated in Canada is the prevalence of limitations on the freedom of expression, protected by section 2(b) of the Charter, especially that of retailers. One additional avenue that challenges to the restrictions or bans on the advertising of vaping products may pursue is the argument that advertising and display restrictions affect vaping products more severely than cigarettes.
Vaping legislation—both restrictions on advertising and other rules, notably those regulating the content of vaping products to make them less attractive or effective—is considered from the standpoint of potential interference with the right not to be deprived of life, liberty, and the security of the person except in accordance with the principles of fundamental justice. This right is protected by section 7 of the Charter. The right to life is arguably engaged when the vaping legislation makes it more difficult for smokers to take measures that will make it less likely that they will die as a consequence of their habit. Security of the person is engaged insofar as the legislation makes it more difficult for smokers to avoid future illness and suffering.
Restrictions on the ability of manufacturers and retailers to communicate with existing or potential consumers of vaping products could also be challenged on this basis, regardless of whether they can be successfully attacked as violations of the freedom of expression. Liberty is engaged because it protects a person’s ability to choose medical treatment for him- or herself.
Both federal and provincial laws in relation to vaping might be shown to be invalid, because they conflict with the division of powers under the Constitution Act, 1867. The vaping legislation may also be vulnerable to challenge based on the Canadian Charter of Rights and Freedoms. In particular, it limits the right to freedom of expression and, arguably, the rights to life, liberty, and security of the person, and equality rights. The strictest provincial laws, such as total bans on advertising and bans on flavouring or limits on nicotine content are especially dubious.
A challenge to Québec’s legislation has partially succeeded at first instance. While the court rejected division of powers arguments to the effect that provincial law was invalid or inoperative because of its alleged intrusions into the powers of the federal Parliament, it accepted some arguments based on Québec’s statutory bill of rights. While arguments based on the Canadian Charter, which the court did not consider, would face higher hurdles, the decision is instructive. That said, its proposed remedy, which would amount to carving out exceptions to the regulation of vaping for the benefit of current smokers may not be workable, and may not survive appeals.
The vaping 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.
This is a preview of the executive summary of an upcoming report by the Canadian Constitution Foundation. The complete report will be available next week.
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