Quebec's top court upholds law restricting advertising of vaping products

Vape shops and e-cigarette companies in Quebec must continue to follow strict rules on how and where they can advertise their products, after Quebec's highest court upheld the province's right to apply the same laws governing tobacco to vaping products.

"This is a victory for public health to protect youth from rising rates of youth vaping," said Rob Cunningham, a lawyer working with the Canadian Cancer Society. 

"And to protect youth in particular from tobacco companies who have a terrifically terrible history for marketing in a way that appeals to youth."

In a unanimous decision published Monday, a panel of three Court of Appeal judges reversed parts of a 2019 lower court decision that struck down certain provisions of the Tobacco Control Act pertaining to vaping products.

The Quebec Superior Court had ruled that some of the province's restrictions on vaping products, including a ban on advertising e-cigarettes to people looking to quit smoking, went too far because they could prevent smokers from transitioning to a less harmful product.

But the appeals court judges disagreed, ruling that the Quebec government has the right to limit the potential impact of electronic cigarette advertising on young people and on non-smokers.

The Court of Appeal said it recognized that most experts agree vaping products are less harmful than traditional cigarettes.

But it said the province rightly argued there are increasing concerns about the health impacts of vaping products and many experts question their effectiveness as a tool to help cigarette smokers kick their habit.

Cunningham hopes the appeals court ruling sets a legal precedent across the country.

"This judgment will have implications beyond Quebec," he said, "because the federal government and provinces are increasingly adopting their own e-cigarette advertising restrictions and on other types of restrictions for e-cigarettes."

He said he'd like to see the province do even more to prevent young people from getting hooked on vaping — like banning the use of flavoured e-cigarettes and imposing further taxes on vape products.

In 2015, Quebec passed its Tobacco Control Act (Bill 44), which subjects electronic cigarettes — with or without nicotine — to the same regulations as tobacco products.

You must be 18 years or older to visit a vape shop and purchase any sort of e-cigarette. Vape products can't be visible from outside a retail outlet or be sold online and advertising is limited to newspapers or magazines with an 85 per cent adult readership or higher.

The Canadian Vaping Association and Quebec's association of vape stores argued Bill 44 didn't respect retailers' freedom of expression and issued a number of constitutional challenges the year after it was passed.

The 2019 Superior Court decision relaxed some of the rules and gave the province six months to revise the laws.

Vape product sellers disappointed

Monday's ruling means vape shops and companies who promote vape products are back to square one. 

Valerie Gallant, head of the Association des Vapoteries du Québec, called the decision to put vape products in the same category as tobacco "nonsense."

"Now the question is, is the Supreme Court the next step?" she said.

Daniel Marien, the co-owner of La Vape Shop, says he's frustrated to not be able to sell vaping as an alternative to smoking at his chain of vape stores.

"I think that not being able to promote the product to smokers is a shame," he said. 

"We're not targeting youth, we're targeting people that have nicotine addiction."