Local vaping groups welcomed the Superior Court of Quebec’s recent decision that rejected key sections of the Tobacco Control Act adopted by the Quebec government in 2015, which sought to treat vaping products essentially the same as cigarettes. The decision recognizes vaping as a form of harm reduction as it allows people who would otherwise smoke lethal cigarettes to get the nicotine they need or want without the inhalation of smoke. As the harm from cigarette use is overwhelmingly due to the inhalation of smoke rather than the nicotine, the decision underscores important lessons for harm reduction.
The Quebec Superior Court is the highest trial Court in the province of Quebec in Canada. It is composed of 157 justices, including a Chief Justice, a Senior Associate Chief Justice, and an Associate Chief Justice.
“Like Quebec’s anti-vaping law, the recent Department of Health administrative order considers e-cigarettes as essentially the same as cigarettes. We urge the DOH to consider the emerging evidence supporting tobacco harm reduction and to be mindful of consumer rights,” said Joey Dulay, president of the Philippine E-Cigarette Industry Association (PECIA).
Dulay is referring to DOH A.O. No. 2019-0007 released on June 14, 2019 which, among others, bans any form of advertising, promotion and sponsorship of vaping products; bans vaping in places where smoking is prohibited; sets guidelines and requirements for designated vaping areas that are identical with those for designated smoking areas; and prohibits the purchase, sale and offering for sale of e-cigarettes in places where sale and use of cigarettes are prohibited.
“The Quebec court decision underscores the inviolable right of consumers to be provided with accurate and complete information on and access to all available products so that they are able to make informed choices. It is a strong affirmation of the validity of tobacco harm reduction and sets an important legal precedent that will have persuasive value in other countries, including the Philippines,”explained Peter Paul Dator, president of The Vapers Philippines.
Vaping ban is a human rights violation
Among other things, Quebec’s Tobacco Control Act prohibited the promotion of vaping products and banned trials of such products at retailers. The Quebec Superior Court declared that these prohibitions prevented cigarette smokers in Quebec from hearing about the health benefits of switching to vaping products, from learning about how to use vaping products and from finding a product that is maximally able to replace their cigarettes.
In his decision handed down on May 3, 2019 Justice Daniel Dumais accepted that cigarette smoking is a significant cause of preventable illness and death and declared that the evidence presented convinced the court that electronic cigarettes have been shown to be effective, for some people, in their efforts to quit smoking. The court was also convinced, in accordance with evidence presented, that using electronic cigarettes is less harmful to health than ordinary cigarettes; that it is better to vape than to smoke tobacco; and that vaping is a valid method to quit smoking.
The court further stated that denying smokers the option of trying vaping products in shops or in clinics is a violation of their rights, depriving them of access to a mechanism designed to reduce their risks and better protect their health. The court found that the legislated restrictions ignored the fact that the public, particularly smokers, do not distinguish between smoking and vaping. In effect, the court acknowledged that it is sometimes necessary to educate and make people aware that vaping exists above all for smokers. Thus, those measures that prevented the display and trialing of products in vape shops and the communication of information to cigarette smokers on the relative risks of such products were violations of fundamental rights.
Respect human rights, empower consumers
According to Dator, the Quebec court’s decision is part of a global trend of courts striking down measures that seek to limit access to risk reduction strategies. He cited a recent Swiss Federal Supreme Court decision that used reasoning similar to the Quebec court decision in striking down a ban on snus, a low risk non-combustible Swedish tobacco product. Dator also pointed out that vaping products remain available in the US market as a result of a 2010 ruling by Judge Richard Leon of the United States District Court for the District of Columbia in the Sottera Inc. v. U.S. Food and Drug Administration case.
Dator cited the position of Prof. David Sweanor of the University of Ottawa Centre for Health Law, Policy and Ethics. “Moralistic abstinence-only policies, including those for nicotine, have a long history of being ineffective, undermining human rights and being ultimately overturned by courts. Far better to focus on effective rather than dramatic interventions, to seek to empower rather than to punish those at risk and to promote policies that respect human dignity and promote individual human rights.”