Ontario’s e-cig law unconstitutional: prof

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

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.

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