New Brunswick

Judge denies injunction to suspend ban on flavoured vapes

A Court of Queen’s bench judge has denied an injunction that would have seen the ban on flavoured e-cigarettes suspended, saying it would not be in the public interest.

Granting injunction would not be in the public interest, Judge Terrence Morrison says

Lawyer Mel Norton (Lauren Bird CBC News)

A Court of Queen's Bench judge has denied an injunction that would have seen the ban on flavoured e-cigarettes suspended.

The provincial legislature passed a bill last June banning flavoured vaping products.

The restrictions came into effect in September under the Tobacco and Electronic Cigarette Sales Act. 

Six plaintiffs, including former smokers and vape store owners, filed a lawsuit challenging the new law. They had asked to have the ban suspended until the suit is heard.

Judge Terrence Morrison said that granting the injunction would not be in the public interest.

"TECSA is legislation that has been enacted for the public good," said Morrison, delivering his decision Thursday afternoon.

The former smokers argued that flavoured vaping products helped them quit smoking and that without them, they feared they would slip back into the habit. 

But Morrison noted there was no evidence to suggest that would happen and that, several months into the ban, they had not returned to smoking. He also noted that plain and tobacco e-cigarettes are still available. 

Morrison acknowledged that the vape store owners had suffered economic loss in being unable to sell the flavoured products, and that one had even filed for bankruptcy, but said that didn't outweigh the public interest. 

The legislation was enacted in an effort to reduce the number of young people who were vaping. 

Outside the courthouse, the plaintiffs' lawyer Mel Norton said it was "ironic" that Cannabis NB and NB Liquor both sell flavoured products, while vape store owners cannot.

"But in this case, where people have identified a real smoking cessation tool, they're not going to have access to that," he said.

Rob Cunningham, lawyer with the Canadian Cancer Society. (Lauren Bird CBC News)

Norton said one store declared bankruptcy, another closed and sales for another store are down 60 per cent since the ban came into effect. 

"This [injunction] was brought because [the plaintiffs] have identified a serious issue that impedes their ability to not only quit smoking, but to stay away from cigarettes," Norton said. 

"And that is the basis that this was brought on. And then also there are the economic impacts to not only the businesses, but the people that work in those businesses and serve folks that want to stay away from cigarettes. That's the real evil."

Norton said the trial will still go ahead. 

Rob Cunningham, lawyer for the Canadian Cancer Society, said he was happy with the outcome.

"The evidence is very clear about the importance of protecting youth and protecting public health and also the international trend," he said.

"I mean, we see ministry of health after ministry of health in governments around the world making decisions that we need to restrict flavours."

Nova Scotia and P.E.I have both banned the flavoured products. 

There is no date set for the trial.