Skip to content

Ontario’s e-cig law unconstitutional: prof

|Written By Yamri Taddese

Ontario’s proposed legislation to control the use of e-cigarettes is unconstitutional, according to a University of Ottawa law professor.

David Sweanor says by and large, the harm in smoking is in the smoke itself, which is absent in e-cigarettes. Photo: Shutterstock

If it passes, bill 45 will make it illegal to display or promote the use of e-cigarettes, and impose age and place restrictions around its use — much like the current rules around cigarettes. The bill cites uncertainties over the medical effects of e-cigarettes.

According to adjunct law professor David Sweanor, the bill, which is also known as the “making healthier choices act,” will limit people’s ability to make a healthier choice by replacing regular cigarettes with e-cigarettes.

Sweanor, who’s worked in health policy on tobacco and nicotine for 30 years, says allowing unrestricted use of e-cigarettes could save “an untold number of lives.” He says by and large, the harm in smoking is in the smoke itself, which is absent in e-cigarettes.

Banning the display of e-cigarettes is, in effect, a ban on the use of the product, according to Sweanor, who adds consumers would need to see and try e-cigarettes if they are to use them.

“There are things one needs to know about how to charge the batteries, how to replace the parts, how to fill it, and [people] need to sample it to see if they’re getting the one that’s right for them,” he says.

“If we preclude people from doing that, we’ve effectively prevented them from being able to have a less hazardous product,” Sweanor adds, noting that goes against a person’s Charter protected right to life.

Unlike buying cigarettes, which are more or less the same, e-cigarettes are a bit like picking out a pair of running shoes or a cellphone, according to Sweanor.

“To say we’re treating them the same as smoking in fact gives smoking an advantage because of the nature of the products but it also misinforms consumers into thinking that these things must be as hazardous as smoking rather than being told the truth — which is that they’re massively less hazardous than smoking,” Sweanor adds.

But speaking at a recent Ontario Bar Association session on health law, two Ministry of Health lawyers explained the government’s point of view in drafting the legislation. Donna Glassman said e-cigarettes are popular among youth, with 15 per cent of students in grades 7 to 12 reporting having tried them.

“There was a huge concern that it would become a gateway to cigarettes themselves,” she said, adding they’re easy to access and there is currently no age-based restriction on their use.

The government’s concern is also that e-cigarettes would result in “re-normalization” of smoking indoors, said Glassman, adding the World Health Organization has recommended the regulation of the vapour-based devices.

Glassman’s colleague, Marcus Mazzucco, said the ministry has received concerns from members of the public who are worried about the effect of people smoking e-cigarettes in the workplace.

“The fact is the scientific evidence is limited. The fact is that they’re a new product and they’re evolving,” said Mazzucco, noting the long-term impact of using e-cigarettes isn’t known.

The Supreme Court of Canada has made it clear “a reasonable apprehension of harm” is sufficient to take precautionary measures, he said.

To Sweanor, that there is some harm to using e-cigarettes should not result in a restriction on the use of it. He argues much of the pushback against e-cigarettes comes from a moralistic, abstinence-only approach.

“There’s nothing we do that’s completely risk-free,” he says. “It has to be seen in terms of relative risk. We know from the science the relative risk of these products is very low.”

Instead of taking action based on some studies that point at problems with e-cigarettes, the government should read all available studies and the critiques of those studies, suggests Sweanor.

“They will find that most of the reports talking about the hazards of e-cigarettes are from people who are fear-mongering about them or people who have a prohibitionist agenda, or they just don’t like e-cigarettes for competitive reasons,” he says.

Just like the debate on vaccines, some of the conversation around e-cigarettes is based on science and the rest is “garbage,” Sweanor adds.

Banning e-cigarettes is a bad public health move, he says.

According to the Action on Smoking & Health, there are 2.1 million current users of electronic cigarettes in the United Kingdom. Of those, approximately one-third are ex-smokers while two-thirds continue to use tobacco alongside electronic cigarettes, according to ASH.

“Compared with smoking, using an electronic cigarette is safer. However, in the absence of a thorough clinical evaluation and long term population level surveillance, absolute safety of such products cannot be guaranteed. By comparison, the harm from tobacco smoking — the leading cause of preventable death in the UK — is well established,” says ASH.

Sweanor compares e-cigarettes to safe injection sites for those with intravenous drug addiction. It’s not the drug, but the delivery of the drug, that causes the biggest public health problem, he says.

Correction: The original version of this article suggested Ottawa is proposing bill 45 when it's in fact provincial legislation.

  • VOR E
    Vegetable glycerin mixes happily with a whole pile of things for cheap, and the majority of us are used to a lot of DIY with e-cigs anyway. If you insist on using PG, grab a stockpile early, keep an eye out for legitimate research on what flavour compounds are genuinely bad, and "water down" your own creations if the bill isn't shelved.
    For what it's worth, some regulation is needed, so this might turn out to be a net positive. However I do expect our resident tools-in-office to eventually give a go at banning the actual devices.
    Folks, save your energy for that argument when it hits, and scream from the rooftops when it comes around. Ontario is particularly good at creating a "concensus" behind closed doors and passing uninformed law by way of creeping incrementalism -- in broad daylight. Pick your battles... Unless you all want to be paying way too much for cessation devices that don't work to pad the pockets of a select few in 5-10 years' time, of course.
  • vape love
    Everyone is missing the point. Which is mainly that they are trying to ban the display and tasting. Which in turn will make it extremely hard to switch to as you do need someone to show you how yo use them and get educated on the typed of liquids there are etc. Which would in turn help you pick the healthier ie organic etc options. Regulating the types of liquids sold would be a better option this would eliminate the crappy once.
  • Fire brand
    Uh, no, the legislation also bans FLAVORS.
  • Paul Lorette
    I switched from cigarettes to vaping nearly 2 years ago, haven't touched a cigarette since the day I bought my first vape, I was a pack and a half to two pack a day smoker and had been smoking for over a decade. In this time I've seen a restoration of my respiratory system; my stamina is restored, skin color returned, taste rejuvenated and my lungs are healthier then ever. I no longer wake up in the morning coughing disgusting crap up from my lungs and I feel better then I ever have in my adult life.
    While you can argue that there might be harmful effects there remains little doubt that the effects between tobacco and evapes are a world apart. Adults have the right to choose, and introducing legislation that inhibits that choice is wrong, period. Nobody in the industry has a big issue with health regulation of the product and introducing age requirements. The problem is with the ban on displaying and testing the products in store, which limits the customer's to make a choice.
  • Michael Hopkins
    Prop. Glycol may not be harmful but hits nail on head: "INGREDIENTS"

    Which end product "CHEMICALS (structures)" consumed?
    - solution components heated to gaseous reaction temperature.
    - chemical reaction results after volatile vapour mixes in air (carbon, nitrogen, oxygen, etc.)?
    - chemical structure changes?

    Like ALL things a human COMSUMES (altering bodily function) "vapour" solution INGREDIENTS need to be regulated to ensure safety: INGREDIENTS(1) themselves and the INGREDIENTS INTENDED USE(1.1)

    industry Control of ADDICTIVE POTENTIAL: regs. needed to control nicotine mg/mL ratios ensuring addictive potential controlled.

    TOXICITY: controlling nicotine concentration needed - weakening heart (all organs) possible. GMP's ensuring safety. SAFETY CAPS to prevent child use/abuse/ingestion fatality.
  • charlie p
    Why not ban the sale of rolled cigarettes, make everyone roll their own and encourage e-cigs. May be most smokers would support that. I liked the idea when I was smoking.
  • Ray PG Yeates
    About 37,000 people die each year in Canada as a result of smoking. Since 2003 0 ( that's zero) die from vaping. So we have two ships crossing the waters and one has smokers (37,000) the other vapers ( now over 400,000) They both hit a rock ( Health Canada) and we scream throw them a life saver. The vapers jump in to help them but the rock shifts knocking them into oblivioun as it grinds out.... " We don't know what those vapers are up to". Well get this straight Health Canada. We are not the tobacco companies. We are trying to get smokers away from that 37,000 count. We are also studying and configuring this ingenious device to be safer than it ever has been apart from the tobacco industry. Go after them. Stop the BS and start honest research. Band-aids don't fix holes in a quit or die mentality. Save a life. Save Ecigs. Do your job youo are well paid to do..... or become accountable for your ignorance against smokers.
  • charlie p
    Apparently we now have 50 million man years of experience with e-cigs among millions of users. If there are doctors treating people with e-cig related illnesses we aren't hearing about it. Instead we hear may be this and may be that. Governments are addicted to smoking, that's the problem.
  • C. Holloway
    Telling me something is safer does tell me that it is safe. Driving two times the speed limit is safer than driving three times the limit. Would anybody in their right mind argue that it is safe? If the argument is that e-cigarettes are safe, then let's hear that. If not, then restrictions are entirely appropriate. And for the record, restrictions are not bans and expressions in that vein are visceral.
  • Stangela P.
    Poor analogy. Try, "driving 5kph over the speed limit is safer than driving 150kph over the speed limit" You would still correctly determine that it is not absolutely safe, but vastly safer. And the difference in safety between driving the speed limit and driving 5kph over is very close to zero.
  • C. Holloway
    I do have a quibble about your scale and how it applies but that being said, you addressed my analogy and not my point. Are e-cigarettes safe , not absolutely safe but reasonably safe? The arguments so far have been: compared to cigarettes-yes. Using a reference point is wrong. For discussions on restrictions, a more on point debate is are they safe, period.
  • C. Eckland
    Do you understand that living is not safe? From the moment you step out of your bed until you get back in at the end of your day, you are at risk. Come to that, you could die in the night for various reasons. Do you propose, then, that life itself should be restricted? There is no escaping risk. It comes with the territory of living. Your argument leans in the direction of approaching everything with fear - as though restricting something will keep you safe. It will not. There is risk in eating fish - you could choke on a bone and die. Do you advocate restricting fish from everyone's diet? That is one example. Name ANYTHING - there is a risk. For God's sake, relax and get on with the business of living your life because I promise you, no matter how careful you are, it will not end well.
  • C Holloway
    No one disagrees with your argument that life is unsafe. However, using it in context of debate has been and is used to try and stop just about every safety consideration ever proposed. Most safety measures that we consider no-brainers today has come up against it. The question isn’t whether life is unsafe; but can we reasonably make it safer. That is one of the reasons we come together in society.
  • C. Eckland
    Do you keep your attention on every new product introduced to the market and look for ways in which they MIGHT cause harm? If you are genuinely concerned about safety, you might want to spend your time writing to places like Monsanto - who are poisoning your food, taking money out of the pockets of hard working farmers, and laughing all the way to the bank. That's one example.
    Many people remember when we didn't live in such a nanny state and would give a lot to get back to that, more balanced, way of life. But I am describing what is clearly the very opposite to your mindset.
    Feel free to respond. I will not as I've made my point as clearly as I am willing to spend my time doing here; you strike me as someone who would rather be right than be happy. I wish you well.
  • John G
    Intersting that an adjuct professor (meaning a practitioner who teaches a course, probably at below-minimum-wage compensation) can invoke the name of the University to give credibility to his prnouncement on the constitutionality of legislation.

    He may be right or wrong about the desirability of the ban or restriction on e-cigarettes, or on the constitutionality of proposed legislation on the topic, but it seems to me wrong to describe him as a University of Ottawa professor.
  • Dr Gopal Bhatnagar
    The ministry lawyers are just parroting unsupported fearing mongering statements that have been spewed out over the last 4 yrs. in every jurisdiction ecigs have become established smoking rates have declined across all age groups. In Canada smoking rates are at historic lows. They had been stable but in the last two years have shown a decline of 3 % that coincides with the rise of ecig use. There has been a robust body if work demonstrating the composition of vapour and even by the strictest occupational health and safety standards it is safe. "Renormalization of smoking"is entirely a beurocratic conncotion by agencies who have no science to support there any vaping stance
  • castello west
    99% safer than smoking!
  • Ashutsh Jha
    well said Prof. Sweanor.

    Glassman and Mazzucco need to understand they should be judgin this apparent harms against known fact that tobacco has been proven to kill a canadian every 12 minutes. Gums and patches that are already available also have some harms associate with it.

    e-cigarettes have not shown any quantifiable harm despite over a decade of usage. On the contrary, resuls from England and France are encouraging.
  • dwdawg vaper
    For the Truth google Dr. Farsalinos. The worlds leading expert on e-cigarette research.
  • Noah Wei
    lets not forget that water is also used to make antifreeze, and its used in asthma puffers
  • Ray Henry
    PG is not "antifreeze", and it's used every day in the pharmaceutical and food fields. We consume it every day. Asthma inhalers are not for druggie, they are for ashma sufferers. E-cigs are saving hundreds of thousand of tax dollars.Charlie P clearly knows nothing about this subject.
  • charlie p
    Ashma inhalers use propylne glcyol. That's used as anti freeze. People shouldn't be allowed to use them in public places. There's no proof they are safe. They could be used for other drugs like marijuana. Advertising should not be allowed. Children should be arrested if they use them because they could be a gateway to other drugs. There should be a very large tax on them to discourage use and so my taxes can be lower. I care the same about those low life drug addicts who use ashama inhalers as they care about me.
  • Rusty A
    Water is also used to make anti freeze. Therefore water must also be regulated with your moronic ramblings.
  • Jason Haney
    Propylene glycol is used IN antifreeze, it is not antifreeze. In fact, it is used to replace the much more toxic Ethylene Glycol in antifreeze to protect the water table and general environment, the GREEN alternative ;)
  • Knowlton hunter
    [quote name="charlie p"]Ashma inhalers use propylne glcyol. That's used as anti freeze. People shouldn't be allowed to use them in public places. There's no proof they are safe. They could be used for other drugs like marijuana. Advertising should not be allowed. Children should be arrested if they use them because they could be a gateway to other drugs. There should be a very large tax on them to discourage use and so my taxes can be lower. I care the same about those low life drug addicts who use ashama inhalers as they care about me.[/quote yes, and they should ban potatoes, since they can be used to fashion a pipe! What nonsense! I'm sure all asthma sufferers will appreciate your concern! I would reverse your argument and say there is no proof they cause harm. On the other hand, cigarette smoke does. Most vendors of these products already self regulate and do quality control and do not sell to minors without any govt directives.
  • Jim E
    I'm assuming this is sarcasm. Unfortunately some people are reading this as a serious comment.
  • William Lambert
    Nanny state over-bearing governmental policy nonsense deserves the most intense sarcasm possible.

    Also, there is an error in the article. It is an Ontario Government bill, not an "Ottawa", i.e. federal government bill. This kind of nonsense only comes from our insufferable Ontario government.

Law Times Poll

A group of benchers opposed to the Statement of Principles will need to win the support of their colleagues to repeal the requirement. Do you think they will be successful in repealing the statement of principles in the coming year?