Quebec judge declares parts of vaping legislation invalid after challenge

The Quebec association had also argued the province had overstepped its legislative authority by including vaping products. (Shutterstock Photo)

MONTREAL – Quebec is within its rights to legislate on vaping, but a provision banning demonstrations of vaping products inside shops or specialized clinics goes too far, a Quebec judge has ruled.

In a judgment released Friday, the court also invalidated another section of the provincial law prohibiting the advertising of vaping products to smokers seeking to kick their habit.

A legal challenge was brought by an association representing Quebec vape shops and the Canadian Vaping Association.

They argued that parts of the Tobacco Control Act adopted by the Quebec government in 2015 violated their fundamental rights, notably freedom of expression.

Justice Daniel Dumais has suspended his ruling for six months to allow lawmakers to rewrite the problematic sections of the province’s tobacco law to make them valid.

The Quebec association had also argued the province had overstepped its legislative authority by including vaping products.

However, Dumais, who heard arguments province’s Superior Court over 10 days last December, ruled Quebec had a right to legislate on the issue.

“Overall, the law is constitutional,” Dumais wrote in a lengthy decision dated Friday. “Quebec has jurisdiction to legislate as it has done. The Quebec legislature has jurisdiction and could validly pass the contested laws.”

The wide-ranging law was designed in part to put the popular e-cigarette on the same footing as other tobacco products and anti-tobacco groups argued that e-cigarettes needed to be subjected to regulations to prevent youth from using it.

But the judge agreed to strike down two sections of the law that prohibited the demonstration of vaping products inside speciality shops and smoking cessation clinics.

The Canadian association had argued those sections of the law violated the right to integrity and personal security as well as freedom of expression. The judge also struck down sections of the law that prevent vaping from being advertised to smokers who aim to stop smoking, ruling it violates freedom of expression.

The judge wrote that while the provisions take into account the well being of non-smokers, it seemed to forget the rest of the population – including those smokers who are looking to quit.

“The problem with the current restrictions is that the public – particularly smokers – do not distinguish between smoking and vaping,” the judge wrote. “They must be permitted to know the difference. Rather than silence, it is sometimes necessary to educate and let people know that vaping exists first and foremost for smokers.”