Fighting Evil or Protecting Health?

Another anti-vaping law goes up in smoke

David Sweanor

22 juillet 2019

On May 3rd, the Quebec Superior Court struck down key sections of Quebec’s anti-vaping law that 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.

Among other things, the law prohibited the promotion of vaping products and banned trials of such products at retailers.  In doing so, these prohibitions prevented cigarette smokers 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.

The trial judge, Justice Daniel Dumais, accepted that cigarette smoking is a significant cause of preventable illness and death and the evidence 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 the former is a valid method to quit the second.

Further, by denying smokers the option of trying vaping products in shops or in clinics, their rights are violated because they are being denied access to a mechanism to reduce their risks in order to better protect their health. The court found that the legislated restrictions ignored the fact that the public, particularly smokers, do not distinguish 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. 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 found to be violations of fundamental rights.

This decision is good news for people in Quebec who smoke cigarettes – it could greatly reduce the risk of illness and death as it will result in better access to products that deliver nicotine without the inhalation of smoke. It is also an important precedent for Canadian courts and will undoubtedly be of persuasive value elsewhere. Empowering people to make better personal health decisions has long been a pillar of effective public health strategies.

The court’s decision is also illustrative of a global trend of courts striking down measures that seek to limit access to risk reduction strategies for drug use in general. On May 27th the Swiss Federal Supreme Court used similar reasoning in striking down a ban on snus, a low risk non-combustible Swedish tobacco product. And vaping products were only kept available in the US market as a result of a ruling by Judge Leon of the United States District Court for the District of Columbia in the Sottera case on January 14, 2010, ending a long legal struggle.

The current tentative moves to a harm reduction approach to illicit drugs in Canada can be traced back to such milestones as the legal battle over Vancouver’s Insite safe injection site, and our courts ultimately protecting the rights of those with drug dependencies. The Supreme Court of Canada unanimously protected the right to risk reduction strategies by requiring the federal government to grant Insite’s application to remain open.

Despite these important legal victories, governments and many of their agencies continue to be reluctant to embrace harm reduction strategies.  Efforts to use harm reduction strategies to deal with the opioid crisis face ongoing obstruction and low risk alternatives to lethal cigarettes have been routinely disadvantaged in the marketplace. For example, the recently enacted federal Tobacco and Vaping Products Act, in section 20.1, severely limits truthful communication of relative risk information to tobacco users. Indeed, the law dictates that entirely truthful communication about the huge difference in the risks of different tobacco products could lead to not just fines but jail time. Preventing truthful speech that saves lives is hardly consistent with the Charter.

Why do legislatures and government agencies continue to pass laws and implement policies that seem out of keeping with ethical principles, good public health practices, and will almost certainly not withstand a Charter challenge?

With any class of consumer products, and certainly ones with psychoactive properties, regulatory oversight is appropriate. But when dealing with ‘drugs’, the politics of the regulatory process tends to become a bad trip. As long seen on issues such as sexual behaviours, rather than pragmatically seeking the best route to achieve societal goals within the constraints of a free and democratic society there is often a moralistic approach to policymaking. This was characterised by Allan Brandt in No Magic Bullet, his history of venereal disease, as a “persistent tension between a rational, scientific program and a behavioral, moralistic approach”. The agenda morphs from one of pragmatic regulation to one of battling evil. Those who wish to prove their commitment to battling a perceived evil by pushing for the most draconian policies politically achievable will ordinarily overstep the legal constraints of liberal democracies. Politicians who cave to a perception of public support for such measures are too often merely laying the groundwork for societal harm, legal challenges and policy failure.

Moralistic abstinence-only policies, whether on nicotine, narcotics, alcohol or sexual activity 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.

David Sweanor is Adjunct Professor of Law and Chair of the Advisory Committee of the University of Ottawa Centre for Health Law, Policy and Ethics.