A lawyer representing vape stores that sell flavored products in New Brunswick, Canada, reportedly said he will file a constitutional challenge to a 2021 provincial ban on flavored e-cigarettes, it emerged today.

Canadian federal and provincial laws must comply with Canada's Constitution, including its Charter of Rights and freedoms, or they can be challenged. The possibility of overturning the Canadian-style ban on human rights grounds has been raised before, but has not been tested in court.

Vape shops facing charges will challenge the law

Criminal defense attorney Adrian Forsythe entered a not guilty plea last week on behalf of New Brunswick retailer East Coast Vape and announced he would file a constitutional challenge in the case to notify the provincial capital of Fredericton, according to the Fredericton Independent online news service.

East Coast Vape faces charges of selling flavored products in its Oromocto store in December, in violation of New Brunswick's tobacco and e-cigarette sale laws. Forsythe also entered a not guilty plea in provincial court last week on behalf of Vapecity Enterprises, which was also charged with violating the 2021 law.

Forsythe told The Independent that his law firm, Gorham Vandebeek LLP, also represents other clients accused of breaking the same law and that he expects to use the same defence for them. The cases involving the defendants, represented by Gorham Vandebeek, have all been adjourned until May 3 to set a trial date, The Independent reported.

Reducing the appeal of e-cigarettes could be unconstitutional

The Canadian Constitution Foundation released a report in 2020 suggesting possible grounds for a constitutional challenge to Canada's e-cigarette laws. Author Dr Leonid Sirota, professor of law at Auckland University of Technology School of Law, said the fragrance ban and nicotine strength limits could violate the charter because they reduced the effectiveness of e-cigarettes as a harm reduction tool.

Sirota wrote: The rules are designed to protect non-smokers from the potential dangers of e-cigarettes themselves, which, worse, could be a gateway to smoking. However, it has the potential to cause serious harm to current smokers, for whom e-cigarettes can be an important and often the most effective harm reduction technology.

Sirota said reducing the appeal of e-cigarettes to smokers could infringe on the right not to be deprived of life, liberty and security of person, which are protected by Article 7 of the Charter.

A civil lawsuit (unrelated to the case above) was filed in 2021 challenging New Brunswick's flavor ban on these grounds, according to the Fredericton Independent. The plaintiffs in the lawsuit failed to persuade the court to grant an injunction while the case is being argued, and no trial date has been scheduled.

Five Canadian provinces have active bans on fragrances

New Brunswick banned the sale of flavored vape products (except tobacco flavors) in 2021. Three other provinces or territories - Nova Scotia, Prince Edward Island and the Northwest Territories - have similar bans. Nunavut has passed a ban, but not yet implemented it.

Last week, Quebec -- Canada's second most populous province -- issued draft rules banning non-tobacco flavored vaping products. The rules will take effect 90 days after publication, unless a public consultation persuades the provincial health ministry to reconsider.

Three other provinces - British Columbia, Ontario and Saskatchewan - limit the sale of flavored products to adult-only stores, such as vape shops.