The Canadian Vaping Association: New Brunswick vape retailers will seek leave to appeal

Beamsville, ON, April 01, 2022 (GLOBE NEWSWIRE) — New Brunswick vape retailers and former smokers sought an injunction on the province’s licensing requirement which is the mechanism that enables a ban on flavours. The plaintiffs are requesting that the licensing requirement be suspended until the current constitutional challenge against the flavour ban is concluded. They explained that to obtain this new license they must agree not to sell flavoured products and that adhering to the conditions of the license would cause irreparable harm to their businesses and public health. The injunction was not granted as the judge did not admit any of the academic, scientific, or consumer affidavits presented by the plaintiffs, and as a result did not believe that the licensing requirement would cause irreparable harm.

Affidavits from doctors and scientists were filed detailing the substantially reduced risk profile of vapour products and the critical role that flavours serve for adoption by smokers and maintaining smoking abstinence. The affidavits were critical to the inunction, but unfortunately, they were not considered in the decision.

“Those four affidavits speak to the seriousness of the issue,” said Mel Norton the plaintiffs’ lawyer.

“We are disappointed by the decision, particularly the fact that expert testimony was not considered. The affidavits detailed the demonstrated harm that a similar flavour ban has caused to Nova Scotia. The release of Nova Scotia’s Public Accounts details a historic 5.6% increase in cigarette sales while conceding a lower-than-expected tax revenue on vaping products following the ban. Additionally, evidence of the destruction of Nova Scotia’s vape industry was submitted but not considered. It is difficult to prove irreparable harm if the evidence of harm is not considered,” said Darryl Tempest, Government Relations Council to the CVA Board.

Norton says his clients’ case met the tests of irreparable harm. Co-council Joan Kasozi also argues that there are several Charter issues at play that must be considered during the upcoming trial.

“The decision not to include the affidavits has left the plaintiffs and vapers in general feeling ignored. Adults have a right to protect their health through effective harm reduction products.

The plaintiffs will be seeking leave to appeal the dismissal, and a speedy trial to resolve the Charter issues at stake which the hearing judge agreed were serious issues deserving of a trial,” concluded Tempest.