Derek James From: City should butt out of controlling e-cigarettes

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By Derek James From

Calgary city council’s proposed ban on vaping in public is giving me deja vu.

You may remember that in 2013, councillors discussed banning shark fins, even though they knew the bylaw was outside their jurisdiction. Despite this, some councillors — motivated by feelings about the cruel treatment of sharks — vigorously supported the ban.

Fortunately, no municipal government in Alberta can ban something merely because it disapproves, or thinks it sets a bad example. So the ban’s advocates fabricated a narrative to support their cause. Sharks are apex predators, they reasoned. Apex predators bio-accumulate mercury. Eating shark fins could lead to mercury poisoning. Ipso facto, a health crisis!

Of course, this was a sham to distract Calgarians from the fact that council had no authority to enact the ban. No councillors were truly motivated by concern over mercury poisoning. To his credit, Coun. Andre Chabot did not support the ban, because he saw it as an attempt by a handful of his colleagues to codify their feelings into law.

Well, it’s happening again. This time, council is about to enact a ban on vaping. And just like the previous ban, some councillors (spurred on by Alberta Health Services executives) have prioritized their disapproval of vaping over restraining themselves within their proper authority. The adopted narrative this time is that vaping is unsafe and a nuisance; it should therefore be banned in all public spaces — including all private property to which the public has access. It’s prohibition all over again.

The narrative concocted to support this ban is a sham, too. Vaping is not a public health crisis. Aside from a handful of deeply flawed studies that have been discredited, the accumulated evidence is becoming clearer and clearer — vaping is orders of magnitude less harmful than smoking is. And it’s hardly more of a nuisance than wearing an excessive amount of perfume.

Enter Chabot. He recently told the Calgary Herald that the proposed vaping ban is “ridiculous,” since “e-cigarettes have helped a lot of people that I know get off of the use of tobacco.” He’s right. It would be ridiculous (irrational, in fact) to ban one of the most successful means of smoking cessation and treat it like a combustible tobacco product.

The e-cigarettes used when vaping contain no tobacco and are not burned like traditional cigarettes. Instead, the vapour they emit contains a small amount of nicotine and some innocuous ingredients that are electronically vaporized and inhaled. Whether inhaled directly or second hand, vaping is not associated with any of the negative health effects of inhaling combusted tobacco products. Importantly, statistics indicate that vaping helps smokers stop smoking.

Lacking their health-crisis narrative, what other support can these prohibitionists muster? Vaping sets a bad example and will corrupt the youth. In other words, won’t someone think of the children? Kids could observe someone vaping, take up the habit, and ultimately become smokers. It’s a so-called gateway hypothesis. Aside from the statistics undermining this gateway hypothesis, you’d search long and hard through Alberta’s Municipal Government Act to find where it says that council can ban a practice merely because it doesn’t like the way it looks.

The real effect of this ban will be to curtail consumer choice and restrict economic freedom. Currently, customers can sample vaping products in retail stores, so that they purchase a product that will work for them. If vaping is banned in all public spaces, customers will no longer be able to make use of this important service.

Even if it were within council’s jurisdiction, a vaping ban covering all public spaces — including private businesses — would have the negative consequence of making it more difficult for smokers to stop smoking. This is irrational.

City council should be considering reasonable accommodations to help smokers stop smoking. And even though the city should be free to enact policies restricting or banning vaping on its own property, it should butt out and let people decide what to permit on their own.

Derek James From is a staff lawyer with the Canadian Constitution Foundation in Calgary. www.theccf.ca