Vape shops to challenge flavour ban
East Coast Vape Inc. and Vapecity Enterprises Inc. are accused of selling prohibited product at capital-region locations last year
A Fredericton-based vape retailer accused of violating a provincial ban on the sale of flavoured vaping liquids plans to challenge the constitutionality of that ban, its lawyer told a court recently.
East Coast Vape Inc., based in Fredericton, is charged with selling a vaping liquid with a noticeable flavour at its Oromocto location Dec. 12, in contravention of the Tobacco and Electronic Cigarette Sales Act.
Defence lawyer Adrian Forsythe appeared on the business’s behalf last week, and he entered a not-guilty plea to the charge.
“We’re filing a notice of constitutional challenge,” he said.
Forsythe noted his firm, Gorham Vandebeek LLP, has other clients facing similar charges, and the same defence is expected.
Forsythe also appeared in Fredericton provincial court last week Vapecity Enterprises Inc., based in Passekeag, N.B., between Saint John and Sussex, which is charged with selling flavoured vaping liquid at its Fredericton location Feb. 22, 2022.
Forsythe pleaded not guilty on behalf of Vapecity as well.
Furthermore, his firm is representing two individuals - Ethan Alexander Murdock and Christopher Pond - accused of the same offence.
Pond, 38, of Brownstone Lane in Fredericton, is accused of selling flavoured vaping liquid in Fredericton on Sept. 21, 2021, and Feb. 7, 2022. Pond’s Facebook profile indicates he’s a co-owner of East Coast Vape.
Murdock, 22, of Ridgeline Crescent in Fredericton, is accused of doing the same in Fredericton on Oct. 21, 2021.
Murdock and Pond previously pleaded not guilty to the charges against them.
All cases have been adjourned to May 3 to set trial dates.
On the same date that East Coast Vape entered its not-guilty plea, another vaping business, Vape Beyond was facing a charge alleging a violation of the flavoured-liquid ban.
The province alleges that business sold or offered for sale flavoured vaping liquor at its location on Restigouche Road in Oromocto on Dec. 12.
Owner Steven Webb asked for the case to be set over so he could obtain and review disclosure of the Crown’s file, and Judge Natalie LeBlanc adjourned the plea to May 9.
Vape Beyond isn’t represented by Forsythe or his firm, and isn’t among the defendants challenging the constitutionality of the flavour ban at this point.
Civil case already before the courts
The province enacted a ban on flavoured vaping liquids, save for tobacco flavour, in September 2021, as part of an effort to curb youth vaping.
The constitutional challenge of the quasi-criminal charges isn’t the only court fight over the vaping liquid ban.
Four plaintiffs - Kayleigh Miller, Anthony Miller, Donald Vosburgh and Roderick Pollard - filed a civil lawsuit in the Court of King’s Bench in 2021 taking issue with the flavour ban.
They contend the ban violates their Section 7 rights under the Charter of Rights and Freedoms to "life, liberty and security of the person."
Among their arguments is that while vaping poses health risks, they’re significantly lower than those posed by smoking. Their lawyers have argued flavoured vaping liquids have helped many quit smoking, and without access to those flavoured products on an ongoing basis, there’s a real risk that vape users will fall back into smoking.
The plaintiffs in the lawsuit originally filed a notice of application in the case seeking an injunction to put the flavour ban on hold until the lawsuit was complete, but King’s Bench Justice Terrence Morrison denied that motion.
The lawsuit also originally included a business, Infinity Vapes, among its plaintiffs, but King’s Bench Chief Justice Tracey DeWare granted a motion from the provincial government to remove the business from the case. DeWare ruled that as a corporate entity, Infinity Vapes didn't meet the criteria to advance a challenge under the Charter.
No date has been set as yet for the trial in the civil case.
You can contact Don MacPherson at ftonindependent@gmail.com.
I don't smoke now or for years but when I did it was menthol cigarettes . My parents smoked menthol cigarettes as well , cameo cigarettes but that was back in the 70's and 80's . If the kids only new what vapes can do . Maybe they should start teaching it in science class . Education would be the tool to use. If you don't like the law on something then you need to lobby to change it. Let's see what happens next :)