Has the CLA defamed the Canadian Vaping Community? Are there grounds for legal Action?

[Projectguy]

On the 19th of January the Canadian Lung Association launched an attack on e-cigs for the start of national quit smoking week in Canada through press releases and a Facebook posting. Those actions were quickly rebuffed however the press release has hit the general public without the opportunity for rebuttal of equal scope from our community.

The question now becomes has the Canadian vaping Community writ large and vapers individually been defamed by this media attack?

Defamation (sometimes referred to as defamation of character) is a statement to a third party about an identifiable individual that is false and damaging to the person’s feelings, pocket book, or reputation.

The test to determine whether a statement is damaging to one’s reputation is whether or not the statement would lower the opinion of the person in the minds of others or cause a person to be shunned or avoided or exposed to hatred, contempt or ridicule.

The test is an objective test and not a subjective one. In other words, it is not relevant if the victim thinks that the words are damaging, rather the relevant inquiry is what the average person would think.

In Ontario, in most cases, it is not necessary to prove that the defamatory statements were made maliciously.

Courts will first look at the natural and ordinary meaning of the words. The intention of the publisher is not examined when looking at the meaning of the words. In appropriate cases, secondary meanings or innuendos will be examined by the court.

In determining if a statement is defamatory, the context of the statement is important. Words that are defamatory in one situation will not necessarily be defamatory in another situation. Calling a doctor a “quack” would be defamatory while calling a professional clown a “quack” would generally not be defamation.

The plaintiff must prove that the defamatory statement is about him or her and that the statement was published.

Definition of Defamation in Ontario Law - Toronto Defamation Lawyers

Defamation of character is a very specific area of law that requires that specific elements of fact be maintained. First, to be accused of defamation, the accuser must prove that the accused has made a false statement about them. Secondly, the statement must be made publicly and not involve a private conversation. Thirdly, the statement must be negligent on the part of accused and, finally, the person who is making the accusation against the accused must prove they have sustained damages as a result of the negligent, false and public statements.



The Four Elements of Defamation of Character: Requirements to Proof Case in Court of Law - Yahoo! Voices - voices.yahoo.com

Has the Canadian vaping community been defamed? Lets consider each separately:



1. Proof of false statements: We would have to prove that the CLA has made a false statements about vapors. So what is their statement?

“January 21, 2013

Canadian Lung Association: Don’t be fooled by e-cigarettes!

During National Non-Smoking Week (January 20-26, 2013), the Canadian Lung Association encourages people to quit using proven methods

(Ottawa) For National Non-Smoking Week, the Canadian Lung Association encourages people who want to quit smoking to use scientifically proven methods and to avoid gimmicky unproven methods, like electronic cigarettes.
“Don’t be fooled by e-cigarettes. These electronic devices could be potentially harmful to lung health and are not an approved quit smoking aid by either Health Canada or the U.S. Food and Drug Administration,” says Margaret Bernhardt-Lowdon, a tobacco issues spokesperson for the Canadian Lung Association.
E-cigarettes are battery-operated devices that are designed to look like and be used in the same manner as regular cigarettes. These devices contain cartridges that may be filled with nicotine, flavouring and other chemicals. E-cigarettes electronically vaporize a solution creating a mist that is breathed into the lungs.
Although not approved by Health Canada, they are readily available to purchase in Canadian retail outlets and from the internet. In 2009, Health Canada issued an advisory warning Canadians to not use e-cigarettes.
E-cigarettes are not proven safe
“People who use e-cigarettes inhale unknown, unregulated and potentially harmful substances into their lungs,” says Dr. Theo Moraes, a medical spokesperson for the Canadian Lung Association and an assistant professor at the University of Toronto. “There are many nicotine replacement therapies approved by Health Canada to help someone quit smoking; the e-cigarette is not one of them.”
E-cigarettes may contain ingredients that are known to be toxic to humans including carcinogens and diethylene glycol, a toxic chemical used in antifreeze i. In initial lab tests, the U.S. Food and Drug Administration found detectable levels of carcinogens and toxic chemicals in two leading brands of e-cigarettes and 18 various cartridges.
E-cigarettes have candy-like flavours that appeal to kids 
The Canadian Lung Association is greatly concerned that e-cigarettes with candy-like flavours, such as chocolate and vanilla, are being marketed and sold to youth. “We are afraid that e-cigarettes, if not regulated, may lead more young people to start smoking,” says Dr. Moraes, who is also a staff respirologist at The Hospital for Sick Children in Toronto. “These products have candy-like flavours, which appeal to children and teenagers and can be bought by those under the age of 18. We are also concerned that e-cigarettes may lead kids to try other tobacco products.”
IMO while the statement is couched in terms such as “may be” and “unproven” however the overall tone of the press release is established in the opening sentence that describes e-cigs as “unproven and gimmicky” thereby characterizing e-cig users as persons easily duped and prone to unsafe and irresponsible actions and practices.

2. Were the statements made publically?

E-Cigarettes : Canadian Lung Association
http://www.lung.ca/cts-sct/pdf/Backgrounder_E-cigarettes.pdf
Media room - News & announcements : Canadian Lung Association
https://www.facebook.com/canadianlungassociation?fref=ts

Enough said except that this was duplicated on every provincial lung association web site and pick up by Global News.

3. Were the statements negligent?

Considering that the statements were in their entirety based on previously proven falsehoods without one shred of consideration for any recent or near recent data, studies and research on the issue of e-cigs as a harm reduction tool at the very least.

4. Have we as a community sustained damages as a result of the statements by the CLA?

I believe that the statements made by the CLA have done significant damage to Vapers:

1. To individuals who have stopped smoking thus escaping a certain death sentence due to related diseases by forcing them either back to smoking because of the dismal success of “proven” NRT’s or into an equally dangerous second hand smoking environment.
2. To the Vaping community as a whole by characterizing us as “pushers” of chocolate and candy flavored nicotine on kids.

​
Questions to the Community

1. Do you believe we as a Community and as individuals were defamed? And
2. Do you believe we as a community have grounds upon which to take some form of legal action against the Canadian Lung Association?
   

 

[cactusgirl]

The statements were made about ECIGS (product) and not about the community who uses them...not sure we'd have a case.

 

[IanK1968]

When we make charges the burden of proof is again put on us to prove them wrong. That means we would have to come up with the lab results, studies ect.. They made charges on assumption which still puts the burden of proof them to prove what they are claiming. right now they are lying, making false statements and unless we are prepared to go to court with overwhelming evidence (which we dont have) to the community standard, we just have to swallow hard and write letters and make some noise.

 

[Projectguy]

Sorry you can't remove a product from the user because if you do there is no danger. A gun is only dangerous in someones hands

 

[IanK1968]

More or less they know our hands are tied and doing the na na na na na you cant touch us, and unfortunately right now they are right

 

[Projectguy]

When we make charges the burden of proof is again put on us to prove them wrong. That means we would have to come up with the lab results, studies ect.. They made charges on assumption which still puts the burden of proof them to prove what they are claiming. right now they are lying, making false statements and unless we are prepared to go to court with overwhelming evidence (which we dont have) to the community standard, we just have to swallow hard and write letters and make some noise.

This is defamation not murder. Our burden of proof is are we being defamed. As far as studies are concerned I would argue that what little proof there is it is overwhelmingly in our favour. The posts by members of our community is full of proof.

 

[IanK1968]

This is defamation not murder. Our burden of proof is are we being defamed. As far as studies are concerned I would argue that what little proof there is it is overwhelmingly in our favour. The posts by members of our community is full of proof.

Soon as you go to court for defamation the judge will ask you for proof of what they say is wrong. Murder or defamation the burden of proof still exists no matter what the charge. They say e-cigs are as bad as cigarettes, the judge will ask, ok Project guy, prove them wrong, where are you clinical studies, where is your lab results? prove to me they lied so I can make a judgement of defamation in your favour. I talked to my lawyer in great depths about this a few months ago.

Without getting into some sort of pissing match or getting heated debate, what evidence do we have to prove that their charges are in default? word of mouth? witnesses? yes they are great, but judges want hard core tangible evidence by expert witnesses. in order to lay a defamation suit you have to show the evidence in the contrary. I totally agree that people are being lied to, I think its a low down dirty rotten tactic by CLA, HC, FDA, and the WHO. but if you plan on taking on an agency backed up by big tobacco, big pharma and health Canada, we better have evidence.

 

[Projectguy]

Ian this is healthy and we've got to have this discussion if we are going to defend ourselves. If I can't respond to your counter to my perspective then we may as well give up!

Okay let's not get into a pissing match but I would like to take my fly down:


Bullen C, C, McRobbie H, Thornley S, Glover M, Lin R, Laugesen M. Effect of an electronic nicotine delivery device (e cigarette) on desire to smoke and withdrawal, user preferences and nicotine delivery: randomised cross-over trial. Tob Control. 2010 Apr;19(2):98-103. http://www.healthnz.co.nz/2010 Bullen ECig.pdf

Caponnetto P, Cibella F, Mancuso S, Campagna D, Arcidiacono G, Polosa R. Effect of a nicotine free inhalator as part of a smoking cessation program. Eur Respir J. 2011 May 12. Effect of a nicotine-free inhalator as part of ... [Eur Respir J. 2011] - PubMed - NCBI

Caponnetto P, Polosa R, Auditore R, Russo C, Campagna D. Smoking Cessation with E-Cigarettes in Smokers with a Documented History of Depression and Recurring Relapses. International Journal of Clinical Medicine, 2011, 2, 281-284. http://www.jmedicalcasereports.com/content/pdf/1752-1947-5-585.pdf

Etter JF, Bullen C. Electronic cigarette : users profile, utilization, satisfaction and perceived efficacy. Addiction 2011 DOI: 10.1111/j.1360-0443.2011.03505.x. Electronic cigarette: users profile, utilization, satisfaction and perceived efficacy - Etter - 2011 - Addiction - Wiley Online Library

McQueen A, Tower S, Sumner W. Interviews With "Vapers": Implications for Future Research With Electronic Cigarettes. Nicotine & Tobacco Research 2011. doi: 10.1093/ntr/ntr088. Interviews With

Siegel MB, Tanwar KL, Wood KS. Electronic cigarettes as smoking cessation tool: Results from an Online Survey. American Journal of Preventive Medicine 2011 Apr; 40(4):472-5. http://www.ajpm-online.net/webfiles/images/journals/amepre/AMEPRE3013.pdf

Zachary Khan and Michael Siegel. Electronic cigarettes as a harm reduction strategy for tobacco control: A step forward or a repeat of past mistakes? Journal of Public Health Policy advance online publication 9 December 2010; doi: 10.1057/jphp.2010.41 http://www.hsph.harvard.edu/centers-institutes/population-development/files/article.jphp.pdf

This doesn't include the many lab reports that have been completed. A list of those can be found here: Lab Reports: ecigarettes

 

[IanK1968]

lol take your fly down but dont pull it out ok

Allright Canadian Law requires the result be performed by a Canadian Lab ( I might be wrong so dont quote me on this ) but from other cases ive read (not just e-cig) thats how the Canadian Judges seem to sway.

Read up on this case Zen vs. Health Canada

CanLII - 2012 FC 1465 (CanLII)

this might shed some light on this topic, for me too, Iam going to read threw it again.

 

[Projectguy]

Glad you're on our side

lol take your fly down but dont pull it out ok

Allright Canadian Law requires the result be performed by a Canadian Lab ( I might be wrong so dont quote me on this ) but from other cases ive read (not just e-cig) thats how the Canadian Judges seem to sway.

Read up on this case Zen vs. Health Canada

CanLII - 2012 FC 1465 (CanLII)

this might shed some light on this topic, for me too, Iam going to read threw it again.

 

[IanK1968]

of course im your side lol, If I could nail HC, CLA, BT, and BP I would, I wish I was born a billionaire so i had the funds to take them all the way to the supreme court, but I was born a poor boy.

 

[Projectguy]

of course im your side lol, If I could nail HC, CLA, BT, and BP I would, I wish I was born a billionaire so i had the funds to take them all the way to the supreme court, but I was born a poor boy.

You and me both. I read (read scanned) the judgement. Two idiots fighting it out in the barnyard. Zen was over its head and HC and their Doctor looked as though they were happy to fudge the numbers.

 

[IanK1968]

You and me both. I read (read scanned) the judgement. Two idiots fighting it out in the barnyard. Zen was over its head and HC and their Doctor looked as though they were happy to fudge the numbers.

Thats pretty much how it went down. Zen's lawyers didnt even try to provide any proof on behalf of their client. I would have freaked on my lawyer and fired him. But you can see what we are up against, HC will fudge anything to get their way, plus there is now case law against any judicial review of e-cigs which sucks HUGE. Its more of an uphill battle now then it was before Zen.

In a defamation case you better believe those conniving &^%&** will bring that up too to try to block us.

 

[Trick]

Sorry you can't remove a product from the user because if you do there is no danger. A gun is only dangerous in someones hands

Guns cause every single death in the world, smell bad, and give you cancer. They frequently go off all by themselves and are a common cause of erectile dysfunction.

OK, now sue me for defamation for saying that. It won't go far.

You cannot defame objects. You can only defame people, none of whom were called out in anything you said. It just does not fit the definition of defamation.

Now, libel? Maybe you could make a case. But not defamation.

 

[Projectguy]

Guns cause every single death in the world, smell bad, and give you cancer. They frequently go off all by themselves and are a common cause of erectile dysfunction.

OK, now sue me for defamation for saying that. It won't go far.

You cannot defame objects. You can only defame people, none of whom were called out in anything you said. It just does not fit the definition of defamation.

Thanks Trick. I'm not a lawyer and stay away from litigation. I deal only with corporate lawyers. This an exercise in asking the question getting feedback and teaching ourselves to defend ourselves.

 

[Projectguy]

Trick just saw your edit re Libel have to look at that. Your thoughts would be welcomed

 

[X P3 Flight Engineer]

Thanks Trick. I'm not a lawyer and stay away from litigation. I deal only with corporate lawyers. This an exercise in asking the question getting feedback and teaching ourselves to defend ourselves.

You should present what you have to CASAA. Elaine has already commented on this article and CASAA is ready to analyze and recommend actions that can be taken.

 

[NickFit]

"For National Non-Smoking Week, the Canadian Lung Association encourages people who want to quit smoking to use scientifically proven methods and to avoid gimmicky unproven methods, like electronic cigarettes."

That is the only definitive statement that they made, they stated that ecigs are gimmicky unproven methods of quitting smoking. All the other statements they made used "may" or "could" instead of stating things as a fact. They were careful in their wording... it was a scare ad just like many of the political ads these days. It was a low blow no doubt, and they should have just focused on people quitting smoking.... the money people donated (and likely some of it is our tax dollars) could have been put to better use.

That makes me wonder, how much money is given to them by Big Tobacco and how much is given to them from our tax money? Maybe they have another reason to argue against ecigs other than health reasons.

 

[Projectguy]

You should present what you have to CASAA. Elaine has already commented on this article and CASAA is ready to analyze and recommend actions that can be taken.

Excellent Suggestion XP. Can't remember If there is a meeting tomorrow or not

 

[froghammer]

That makes me wonder, how much money is given to them by Big Tobacco and how much is given to them from our tax money?

I would hope none.