B.C.’s new vaping regulations may breach Charter rights: Canadian Constitution Foundation

The Canadian Constitution Foundation has called attention to the potential constitutional issues arising from the recently announced amendments to B.C.’s vaping regulations.

The new vaping legislation, which amends B.C.’s Public Health Act and the Tobacco and Vapour Products Control Regulation, will impose a limit on nicotine concentrations to 20mg/ml for products sold in retail locations, will call for plain packaging for vaping substances, will ban the sale of flavoured vapour products except in age-restricted specialty stores, will restrict advertising in spaces where youth may be present and will require vaping substances for sale to be packaged with a skull-and-crossbones health hazard symbol and a health warning.

The CCF said that the new vaping regulations may violate s. 7 of the Canadian Charter of Rights and Freedoms, which safeguards the right to life, liberty and the security of the person, because the nicotine ceiling and flavour restriction may potentially make vaping products a less attractive or effective quit-aid for smokers.

The CCF also said that the new legislation may breach s. 2(b) of the Charter, which protects the right to freedom of expression, in light of the imposition of plain packaging, with no images or text allowed beyond the brand name and regulatory text. The CCF argued that the new regulations extensively limit the packaging and display of vaping products, in violation of the requirement for restrictions on free speech to be no greater than is reasonably necessary.

Moreover, the requirement of plain packaging may prevent smokers who may benefit from a switch to vaping products from being exposed to such products or lessen the opportunity for exposure, said the CCF.

“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,” the CCF further said.

The CCF cited a February 2020 report written by Leonid Sirota, senior lecturer at the Auckland University of Technology’s Law School, wherein Sirota emphasized the rights of current smokers who are seeking to quit.

“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,” said Sirota.