Couche Tard, On the Run parent firms challenge Health Canada nicotine pouch rules

Health Minister Mark Holland rises during Question Period, in Ottawa, Sept. 16, 2024. THE CANADIAN PRESS/Adrian Wyld

Convenience store firms that operate thousands of outlets across Canada are taking the federal government to court to overturn regulations that restrict the sale of nicotine pouches to pharmacies.

Mac’s Convenience Stores Inc. and Couche-Tard Inc., both subsidiaries of Quebec-based Alimentation Couche-Tard Inc., claim in an application in Federal Court that Health Canada's rules restricting the sale of nicotine pouches to pharmacies are unfair and unconstitutional.

Parkland Corp., which operates gas station convenience stores under the On the Run brand, claims in its own court application that the limit to pharmacy-only sales will increase demand for illegal products "that youth already have access to, and will continue to have access to through the contraband market."

Parkland claims illegal nicotine replacement therapy products "are more dangerous than regulated" products, and the rules will "have the effect of increasing — not decreasing — the risk of injury to health."

Mac's and Couche Tard's application makes a similar argument, that since the minister didn't ban sales of the products to minors, mandating that they be sold at pharmacies will "at best, perpetuate identified risks of injury to health" for those who buy other forms of nicotine replacement therapy, or it could aggravate the risks for those who turn to the black market for their product.

Only one nicotine pouch product has been approved for sale by Health Canada, Imperial Tobacco's Zonnic pouches.

The pouch is a small bag that contains nicotine used in the mouth and Health Canada says Zonnic is a form of nicotine replacement therapy, which can help a person quit smoking by temporarily relieving cravings and withdrawal symptoms.

Mac's Convenience Stores and Couche Tard's Montreal-based legal team said their client would not comment on the court case.

Simon Scott, Parkland's vice-president of corporate affairs, said in a statement that the company's stores have "a proven track record of responsibly and safely selling age-restricted products, including alcohol, tobacco, and lottery tickets. (Nicotine replacement therapies) are no different."

Scott said that removing them from convenience stores won't stop youth from accessing them, and instead "hinder access by adult customers who are trying to reduce their use of tobacco."

Health Canada declined to make anyone available for an interview due to "the complexity of the file."

Federal Health Minister Mark Holland announced in August that the sale of Zonnic pouches would be restricted to pharmacies due to concerns over "recreational use by people who do not smoke, and, in particular, youth under 18 years of age."

Holland's ministerial order also banned advertising "that could be appealing to youth," and limited nicotine pouch flavours to mint and menthol.

"Nicotine pouch flavours like berry frost or tropical breeze are not going to be allowed to be sold anywhere," Holland said in an interview with The Canadian Press in August. "What I'm hoping to see is for these products to be used for what they're intended to do — to help people stop smoking — and to stop dead in its tracks the explosion of these products that we're seeing in youth."

Quebec and British Columbia both restricted the sales of Zonnic pouches before Holland's order, allowing sales only at pharmacies behind the counter.

In a statement issued after the new restrictions were announced, Imperial Tobacco called Holland's order "unprecedented."

Eric Gagnon, the company's vice-president of corporate and regulatory affairs, said it was an "extreme abuse of power" to impose the rules on the company's Zonnic pouches.

"These rules do not apply to any other smoking cessation product and singling out Zonnic is a personal attack on our company by Minister Holland and will only make it more difficult for adult smokers to quit," Gagnon said.

Gagnon said the new rules would lead to people buying illicit products widely available online.

This report by The Canadian Press was first published Oct. 5, 2024.