N.S. business owners challenge provincial vape restrictions in court

The owners of a Dartmouth, N.S., business are challenging the province in court over restrictions on the sale of some vape products.

In an application filed to Nova Scotia Supreme Court this week, The Cloud Factory Vape Shop Inc. outlines its perceived violations of the Canadian Charter of Rights and Freedoms in three provincial laws.

The province announced last year it would be changing the rules around e-cigarettes; amendments to provincial laws and regulations have been coming into effect since the spring.

There is now a ban on the sale of flavoured vape juices, a cap on nicotine concentration (20 milligrams per millilitre), and a taxation program based on a product's volume.

The province has said the restrictions are aimed at youth to curb an apparently dramatic rise in that population's vaping habits.

But those who are now contesting Nova Scotia's vaping rules, which are among the strictest in the county, say adults who are trying to quit smoking are being unfairly affected.

Applicants claim interference

The court application uses the example of Edward George William MacEachern — a co-owner of The Cloud Factory Vape Shop and an applicant in the case — who is described as a long-time tobacco smoker who quit with the help of vaping.

The application argues that by limiting his access to vape products, the province's rules impact MacEachern's charter right to life, liberty, and security of the person. 

The application says banning flavoured vape liquid — which the province did with an amendment to the Tobacco Access Act — "unreasonably deprives adults of an important part of their smoking cessation method."

Restrictions called 'arbitrary'

Also being challenged is the addition of vaping to the Smoke-free Places Act, and changes to the Revenue Act, which dictates how vape juice is taxed.

The applicants argue the recent changes to those laws are "arbitrary" and don't target youth like the province has said they're intended to do.

About the Smoke-free Places Act — which bans smoking indoors, and effectively prevents customers from sampling vape products in vape shops — the applicants say, "any positive impacts this law could have on the youth smoking or vaping rates is grossly disproportionate to the resulting harm on those who reasonably seek to use vaping to quit smoking tobacco."

As for the way vape products are taxed, the applicants argue that using volume, as opposed to nicotine concentration, inflates costs and could price out adult smokers "who use vaping products for their intended purpose."

"It would cede the market advantage back to the tobacco companies and incentivise smokers to continue or return to smoking tobacco."

Vaping as aid in smoking cessation disputed

Similar arguments against the province's vaping restrictions were made at the legislature earlier this year as the changes were still under debate, but were countered by experts.

Among them was Dr. Gary Ernest, then-president of Doctors Nova Scotia, who told a legislature committee in March that he doesn't consider vaping to be an effective method to stop smoking because there are too many long-term unknowns about the practice.

He also said that people often continue vaping over an extended period of time, setting it apart from other traditional smoking-cessation tools.

Ernest told legislators the government needs to do everything it can to reduce youth smoking and vaping rates. "It's essential for the future health of everyone in Nova Scotia."

A judge is set to give directions on the vape shop's case on Nov. 18.

The applicants have filed for an injunction to the province's new vaping restrictions until the case is closed, and a motion for that injunction is set to be heard on Nov. 30.

'Last recourse to save the industry'

A fundraising campaign with the title "Save Vaping in Nova Scotia" was created in July by Edward MacEachern, and the description is signed by "Bill" of "The Cloud Factory."  

As of Saturday morning, the GoFundMe campaign had raised $106,525 of its $130,000 goal, and an update on the campaign page says another $27,000 was raised in an earlier campaign.

The campaign description says the court challenge "is our last recourse to save the industry in Nova Scotia."

CBC called The Cloud Factory Vape Shop. A person who said they were an owner but declined to identify themselves further said they would be not commenting on the case, leaving it to their lawyers.

None of the lawyers listed in the court documents responded to requests for comment.

A spokesperson for the Department of Health and Wellness said the province had not yet received formal notice of the court challenge, and they provided no further comment.