New Brunswick judge denies motion to lift ban on sale of flavoured e-cigarettes

A man using an electronic cigarette exhales in Mayfield Heights, Ohio, Friday, Oct. 4, 2019. (THE CANADIAN PRESS/AP-Tony Dejak)

FREDERICTON — A New Brunswick judge on Thursday denied a motion to suspend the province's ban on the sale of flavoured e-cigarettes, ruling that the plaintiffs failed to prove irreparable harm.

The province banned e-cigarette flavours, except for tobacco flavour, last September, but the plaintiffs -- a vape store and five individuals -- wanted sales to resume pending a full court challenge to the legislation. They were also seeking the suspension of a requirement for specialty vape stores to obtain a licence. That requirement is due to come into force April 1.

Mel Norton, the plaintiffs' lawyer, argued that vape stores in New Brunswick are suffering financially because of the law and that without flavoured e-cigarette options, people trying to quit smoking would go back to smoking tobacco, which poses a greater health risk.

Judge Terrance Morrison of the Court of Queen's Bench said the government's intent with the legislation was to protect the health of residents, particularly young people.

"When one places economic interests of the applicants on the scale against the public interest, the scale tips dramatically in the favour of the public interest," Morrison told the court. "In my view, the balance of convenience weighs strongly in favour of not granting the injunction."

The judge denied the motion and ordered the plaintiffs to pay the province $2,500 in court costs.

Outside the court, Norton said his clients are disappointed with the ruling.

"This was brought because they have identified a serious issue that impedes their ability to not only quit smoking but to stay away from cigarettes," Norton said. "Also, there are the economic impacts to not only the businesses but also the people who work in their businesses."

Meanwhile, Rob Cunningham, a lawyer for the Canadian Cancer Society who was observing the hearing, applauded the ruling.

"It's an extremely important judgment for public health to be able to protect youth and to control youth becoming addicted because of favoured vaping products," he said.

Similar bans on flavoured e-cigarettes are in place in Nova Scotia, Prince Edward Island and the Northwest Territories. Last year, a motion to suspend Nova Scotia's legislation was dismissed by the Nova Scotia Supreme Court.

Norton said lawyers on both sides of the issue will now prepare for a full constitutional challenge of the province's ban on flavoured e-cigarettes.

While no dates have been set, Norton said the case needs to be heard sooner rather than later because the legislation has dramatically reduced sales and led to the closure of one vape store in the province and to the owner of another store declaring bankruptcy.

This report by The Canadian Press was first published March 31, 2022.