Imperial Tobacco Canada and two businesses are suing the New Brunswick government over the province's ban on menthol-flavoured tobacco products, which they allege is unconstitutional.

The legislation, passed in 2015, came into effect Jan. 1 and it prohibits the sale of flavoured tobacco products, including menthol cigarettes.

Steven Vasseur, the owner of Keating's Speciality and Convenience Inc. in Moncton, and Wajid Mohamad, the operator of Aulac Tobacco Shop in Aulac, are listed as plaintiffs alongside tobacco giant Imperial Tobacco Canada in a statement of claim filed against the province on March 15 at the Court of Queen's Bench in Fredericton.

In their statement of claim, the plaintiffs argue the province is overstepping its bounds by prohibiting the sale and use of flavoured tobacco products including menthol products, because menthol is specifically exempted from the list of prohibited flavour additives in the federal Tobacco Act.

Health Minister Victor Boudreau l

Health Minister Victor Boudreau calls the lawsuit from Imperial Tobacco and the businesses is a "typical reaction" that the tobacco industry. (CBC)

"Imperial Tobacco Canada filed its challenge because it believes the provincial government has overstepped its legislative authority by banning menthol and we do not see how this can be resolved outside a courtroom unless the government reverses its decision," said Jeffrey Guiler, Corporate Affairs Manager at Imperial Tobacco Canada in an email to CBC News.

Robert Cunningham, a lawyer representing the Canadian Cancer Society, said the organization supports the province's ban on menthol products wholeheartedly, because flavoured tobacco is especially attractive to teens.

'This is an industry that cannot be trusted.' - Robert Cunningham, Canadian Cancer Society

"In New Brunswick, among high school students, the data shows that among those who use tobacco 52 per cent use flavoured tobacco," said Cunningham.  

"Among those who smoke 38 per cent use menthol."  

The data is from the Youth Smoking Survey from the Propel Centre for Population Impact at the University of Waterloo. The findings are from the 2012-2013 school year.

Cunningham calls the tobacco company's efforts "a public relations effort."

"This is an industry that cannot be trusted. This legislation is extremely important. We need to protect kids and there's no way that the tobacco industry should have it's way."

Provincial ban is 'overbroad'

In their statement of claim, the companies state "the menthol ban is overbroad insofar as at least some of its effects bear no relationship to its purpose of protecting the health of young persons.


The Canadian Cancer Society says teenagers are especially attracted to flavoured tobacco. (Graham Hughes/Canadian Press)

"The menthol ban overreaches in its effects on both adult smokers and individuals engaged in the sale of menthol tobacco products, as prohibiting these individuals from buying and selling menthol products significantly impacts their rights and legitimate interests without advancing the purpose of the law."

They say the ban will increase the use of contraband cigarettes and illegal drugs, but not reduce the the use of tobacco in the province.

Health Minister Victor Boudreau calls the lawsuit a "typical reaction" that the tobacco industry is having in every province that has forbidden the sale of flavoured tobacco.

"We feel confident in the approach that we're taking," said Boudreau. 

"We want to reduce the number of, particularly children, but New Brunswickers in general that are smoking.  And we're being consistent with what's happening in other jurisdictions across the country."

Imperial tobacco has issued similar lawsuits in Nova Scotia, Quebec and Alberta, which, along with New Brunswick and Ontario, have banned flavoured tobacco.