The co-owner of a vape shop in Dartmouth is seeking an injunction against Nova Scotia’s newest restrictions on vaping, arguing they unfairly burden adults who are trying to kick a bad habit.
William MacEachern of the Cloud Factory Vape Shop has launched a constitutional challenge against increased taxes on vaping products, a ban on flavoured e-cigarettes and vaping juices, and a prohibition on sampling such items in vaping shops.
His lawyers say the case is about Nova Scotians’ access to a valuable harm reduction tool in the war against a “number one killer”: cigarettes.
“In basically doubling the cost of our applicant’s vaping products, it greatly reduces their access,” said MacEachern’s lawyer, Sarah Emery, outside Nova Scotia Supreme Court in Halifax on Monday.
“We’re not arguing that he has an economic interest to cheap vape products as a recreational use, we’re arguing this is a matter of access and that goes to Section 7 rights to security of the person.”
Emery and her partners at Patterson law are seeking an immediate suspension of vaping rules that came into effect in 2020 — rules that earned the province a good deal of praise from Canadian health advocates when first announced in 2019.
In April 2020, Nova Scotia became the first Canadian province to ban the sale of flavoured vape juices and e-cigarettes in an effort to reduce their appeal to youth. Higher taxes went into effect in September that year, bringing the rate to 50 cents per mililitre of liquid, and 20 per cent of the retail price of all devices.
“We know this is a market where we are seeing an increase in at-risk behaviours, particularly in youth,” said Dr. Robyn MacQuarrie, president of Doctors Nova Scotia.
“So much of the literature around vaping is looking at harm reduction, so that is somehow translated to — in particular our youth — they have this sense that vaping can’t be bad for them.”
Nova Scotia’s crackdown was announced as a new study revealed e-cigarette use skyrocketed by 74 per cent between 2017 and 2018 among Canadian youth.
A survey by Smoke-Free Nova Scotia further found that 48.3 per cent of youth and young adults who vape believe they would quit if flavoured products were no longer available. It also revealed nearly 50 per cent of Nova Scotia students in grades 10 to 12 reported having used an e-cigarette at least once, and 20 per cent of Nova Scotians aged 16 to 24 who reported ever using tobacco, did so after vaping.
MacEachern’s lawyers said the litigation does not aim to make it easier for youth to vape, but to reduce the obstacles to access by adult smokers who vape as a stepping stone for quitting combustible cigarettes.
They allege the Nova Scotia government did not consult the vaping industry prior to implementing its restrictions, and add that local stakeholders would be happy to weigh in on new legislation that targets youth vaping without unduly burdening adults.
Both Jack Townsend, the Crown attorney in the case, and Leo Glavine, Nova Scotia health minister, declined to comment on the matter while it’s still before the courts.
Monday’s proceedings consisted of testimony from Dr. Mark Tyndall, who has penned a number of articles on vaping and its role in tobacco harm reduction. Tyndall is a former director of the BC Centre for Disease Control, an adjunct professor in Simon Fraser University’s public health department, and a researcher on British Columbia’s overdose crisis.
Townsend challenged Tyndall’s impartiality, however, as he has previously taken contract work as a consultant for VITA, Canada’s largest vaping industry trade association.
The judge determined Tyndall’s previous contract and consistent opinion on the matter should not impede him from testifying, but said the Crown could make a case later for how much weight the testimony should be given in her decision on whether to grant the injunction.
MacEachern’s case against the Province of Nova Scotia has garnered national attention.
It has support from the Canadian Vaping Association, which sees vaping as a fundamental harm reduction tool. Flavoured products, said executive director Darryl Tempest, play an important role in encouraging adult smokers to give it a try.
“We of course agree that this product should not be used by youth or those who don’t smoke,” he told Global News. “(Nova Scotia’s) policy is broken and poorly thought-out. We’re pushing this underground.”
Youth who want flavoured vaping products can order it online from other jurisdictions where it’s legal, or grey market dealers who won’t check for identification, he argued.
The Canadian Cancer Society recognizes vaping poses “nuanced” regulatory challenges, but ultimately, believes legislation that bans flavoured products is the right way to go.
Kelly Cull, director of advocacy for the organization, said it’s important to remember that vaping has its own negative health impacts, and e-cigarettes are “not regulated” nicotine replacement therapy products. Nova Scotia’s legislation, she added, does not ban vaping whatsoever.
“Those products will still be on the market, it’s with this balance of how do we deal with this growing epidemic of young people who are using these products,” she explained.
“That really is what has to be front and centre of legislators’ and governments’ minds. Imagine if we could turn back the clock 50, 60 years ago and rethink how we’re going to regulate combustible tobacco products. We’d be living in a very different world today.”
Submissions on MacEachern’s injunction application will be heard on Thursday. MacEachern has removed Cloud Factory Vape Shop as an applicant in the litigation.