Vaping and the Law: Comparing Legislation Across Canada

Summary of Study

Bottom Line: To avoid constitutional scrutiny and future litigation, e-cigarette legislation should not erect irrational or arbitrary legal barriers that unnecessarily impede or inhibit smokers from switching from combustible cigarettes to demonstrably healthier e-cigarettes. 

Delivering the nicotine that smokers need or want without the inhalation of the products of combustion would largely solve an epidemic that kills around 40,000 Canadians annually. Vaping is probably the most significant alternative to lethal cigarettes that we have seen. It is consumer-led, the technology is improving at the extraordinary rate we have come to associate with electronics, the cigarette business faces an existential crisis, and it is all being done without cost to taxpayers. 

But, as usual in public health advances, the push-back is severe. Those with an abstinence-only agenda are following the playbook of those before them on issues of drugs and alcohol, with an avalanche of ideologically driven “studies” on potential harms, actively misleading consumers on issues of relative risk and pushing for policies that are focused on limiting rather than facilitating the transition away from combustion-based products.

Much of the e-cigarette legislation introduced to date across Canada is arbitrary and likely to be not merely ineffective, but harmful. It fails to consider the scientifically proven harm reduction of e-cigarettes and to take advantage of the substantial benefits they offer to public health. 

Canadians must guard against any moves by government to limit our right to be informed and to access harm-reduction tools to improve our health. Outright bans and overregulation of e-cigarettes may be motivated by good intentions, but ignoring the strong evidence of the benefits of e-cigarettes and continuing to promote a purely abstinence-based smoking cessation policy will discourage uptake of safer technologies by cigarette smokers and ultimately will do more harm than good.

To protect the Charter rights of Canadians, governments must not unduly limit information about or access to harm-reduction alternatives or regulate them out of the marketplace. The Canadian Constitution Foundation recommends that a rights- and evidence-based approach to regulation would incorporate the following principles:

  • E-cigarettes should not be regulated like either medicine or tobacco. Instead, an evidence-based regulatory model specific to e-cigarettes should be created that addresses legitimate safety concerns but maximizes smokers’ knowledge of and access to alternative harm-reduction products.
  • Governments should not restrict e-juice flavors on the market.
  • Governments should allow youth to purchase e-cigarettes with the explicit permission of a parent, guardian or doctor.
  • Vape shop owners should be able to work with consumers at the point-of-sale to explain, test and sell e-cigarettes.
  • Vaping should not be prohibited by law, as cigarettes are, in public places and workplaces. Private property owners, such as businesses, should be free to set their own rules.

Governments should not restrict communication about the harm-reduction advantages of e-cigarettes for current smokers.

Read the full report here.