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Province says Imperial Tobacco lawsuit will fail

WATCH: The Canadian Cancer Society and the Nova Scotia government celebrated the upcoming ban on flavoured tobacco, including menthol, at an event Friday. But looming in the background was news of a lawsuit from Imperial Tobacco over the ban. Julia Wong reports.

HALIFAX – Nova Scotia’s health minister said that, despite a lawsuit from Imperial Tobacco over the province’s upcoming ban on menthol cigarettes, the ban will take effect this weekend.

RELATED: Nova Scotia to ban sale of flavoured tobacco, leaves e-cigs to the feds

Leo Glavine spoke in front of the Canadian Cancer Society at an event meant to celebrate the ban. It is believed Nova Scotia is the first jurisdiction in the world to do so. The Canadian Cancer Society has been a vocal supporter of the ban.

READ MORE: Imperial Tobacco alleges in court docs menthol ban is outside province’s jurisdiction

But Thursday, Imperial Tobacco announced it had filed a lawsuit against the province saying it had overstepped its jurisdiction since menthol cigarettes are exempted from a list of prohibited flavoured additives and can be legally sold. Court documents also state that Bill 90, which the ban falls under, infringes on the right to liberty of both vendors and smokers.

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Glavine said the lawsuit is simply a tactic by the tobacco industry.

READ MORE: Controversy surrounds possible menthol cigarette ban in Nova Scotia

“They’ve lost a battle with science and medicine and so this is another avenue for them to attack what is simply right,” he said.

Statistics from the Canadian Cancer Society show that 31 per cent of smokers in grades six to nine had used menthol cigarettes and 32 per cent of all Canadian youth smokers used menthol cigarettes.

Glavine said the ban is within the province’s jurisdiction

“When you consider that health matters are indeed a provincial jurisdiction, we have not overstepped our legal ability or legal authority to protect the health of Nova Scotians and that’s what this measure is indeed all about,” he said.

The health minister said similar legislation introduced in New Brunswick and Ontario only shows that support is growing for a ban on menthol and is constitutional.

“We know that other provinces are bringing in the same legislation so I’m convinced we’re on a 100 per cent sound and determined position here,” Glavine said.

Health officials not backing down

The province’s chief public health officer Dr. Robert Strang said the lawsuit is a sign the province is on the right track.

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READ MORE: Province not deterred by legal challenge to menthol ban

“The fact they are responding so strongly actually tell us that what we’re doing is the right thing and will have an impact,” he said.

Strang said the province did a legal analysis of the legislation and is confident the law will stand. Typically an analysis of any new piece of legislation is done by the provincial Department of Justice.

“We’ve clearly reassured ourselves we have the scientific rationale for doing the legislation and the legal ability to do the legislation,” he said.

“There’s many examples of the federal government going to a certain level and the province clearly having the ability of going further and stronger.”

Imperial Tobacco keeping focus on Nova Scotia

Nadine Bernard, the manager of corporate affairs for Imperial Tobacco Canada, would not speculate on whether similar lawsuits will be filed in other provinces moving to ban menthol cigarettes. She shot down the idea the company is waiting to see whether its legal challenge will hold up in Nova Scotia before filing similar lawsuits in other provinces.

“Nova Scotia is really where we are and what we would like to say about banning menthol is that banning menthol is the reason why we want to do that file in Nova Scotia,” she said. “We’ll just keep the energy in Nova Scotia. We’re looking forward to going in front of the court and continuing the process.”

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Bernard said the province should be looking at how youth get cigarettes rather than banning menthol products out right.

“Selling cigarettes in the legal market is a legal business. Adult consumers are making an educated choice. They have the right to choose the product.”

“It’s a problem of access. It’s not a problem of menthol. It’s not by banning menthol that you will protect youth from smoking. Any type of tobacco should never be in the hands of youth,” she said, though she denied a ban is the solution.

Bernard would not answer when asked whether the company has spoken to federal authorities on the matter.

She also refused to answer specific questions about how much money the company makes off menthol cigarettes and how much the company stands to lose as a result of the ban in Nova Scotia.

“It’s not about the amount of money. It’s about the fact that we are filing and we challenge the menthol ban because we believe there’s not enough evidence,” she said.

Law professors dissect lawsuit

Howard Kislowicz is a constitutional law professor at UNB. He said the lawsuit argues that federal law trumps provincial law.

He said there is an argument that federal law is paramount and that provincial legislation on the same issue that differs slightly should thereby be held inoperative. But he said there is the possibility legislation could stand up both federally and provincially.

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Kislowicz said the menthol ban can still take effect in Nova Scotia while the issue is before the courts and will only be struck down the courts side with the tobacco industry.

“The tobacco companies are arguing that for the province to ban menthol flavoured cigarettes when the federal government has specifically allowed menthol cigarettes to be sold that that is frustrating the purpose of the federal legislation. it will be up to the parties to argue and then the courts to determine whether the provincial legislation frustrates the purpose of federal legislation,” he said.

He said it is interesting the lawsuit is making a Charter argument that the ban infringes on a person’s right to liberty. However, he said in order to show that, it must demonstrate the right to buy flavoured tobacco, including menthol, violates an individual’s fundamental life choice, not a lifestyle choice.

“They are saying the liberty rights of the tobacco company, the independent sellers of tobacco and the purchasers of tobacco, are having their liberty interfered with in a way that goes against the principles of fundamental justice. In particular they’re arguing that the ban on menthol flavoured cigarettes is arbitrary and overbroad,” he said.