Executive Summary: Key Legal and Evidentiary Issues

• Characterization of the DropShot flavor enhancer as a “tobacco product” or assimilated product under the Quebec Tobacco Control Act and its Regulation.
• Determination that a non-nicotine flavoring, when sold and demonstrated for mixing with nicotine liquid for use in a vape device, is “intended to be smoked.”
• Reliance on undercover inspection evidence, including the clerk’s sales pitch, mixing demonstration, smell tests, and the physical compatibility of bottle tips, to show intended vaping use.
• Judicial rejection of the retailer’s argument that DropShot is merely a generic food additive and not a component or accessory of an electronic cigarette.
• Application of strict liability and the finding that the retailer failed to prove any reasonable diligence through staff training, supervision, or compliance systems.
• Consideration of the timing of regulatory changes extending the flavor ban to vaping products, coinciding with the retailer’s change of status and expanded product line.

Facts of the case
On 17 September 2024, inspector Marie-Lou Tremblay conducted an undercover inspection at a Popavape retail outlet in Drummondville. She purchased two products: a 25 ml bottle of flavorless nicotine liquid and a 10 ml DropShot flavor enhancer with kiwi, strawberry, and banana taste, containing no nicotine. The DropShot bottles were kept behind the counter and were not directly accessible to customers. The store clerk offered the inspector the DropShot product and demonstrated how to combine it with the nicotine liquid by fitting the two bottle tips together to transfer the flavored liquid into the nicotine bottle. From this interaction, the inspector understood that the two products, once combined, would produce a flavored liquid to be inhaled using an electronic cigarette. A few days later, the inspector performed sensory tests. She noted that the DropShot enhancer had a sweet aroma resembling artificial berries and did not smell like tobacco at all, especially when compared with a separate control bottle specifically kept for comparison that had a tobacco scent. By contrast, the nicotine liquid itself had no particular aroma. She also confirmed that the tips of the two bottles fit together perfectly, facilitating the transfer of the flavoring into the nicotine solution. In addition, a review of Popavape’s file showed that, until 31 October 2023, the company declared that it sold only products related to electronic cigarettes and similar devices. On that date, it changed its status to a “tabagie,” expanding its activities to include tobacco sales and other convenience items. This shift coincided with new regulatory provisions that extended the prohibition on flavored tobacco products to electronic cigarettes and related devices, and the store added, among other items, flavor enhancers such as DropShot.

The alleged offence and governing legal framework
The prosecution alleged that Popavape sold a tobacco product with a flavor or aroma other than tobacco, contrary to section 29.2 of the Quebec Tobacco Control Act (Loi concernant la lutte contre le tabagisme). That provision prohibits selling, offering for sale, or distributing a tobacco product that contains a flavor or aroma other than that of tobacco, including menthol, fruit, chocolate, vanilla, honey, candy, or cocoa, or whose packaging suggests such a product. Until 31 October 2023, this ban did not apply to electronic cigarettes or similar devices, but a regulatory amendment (notably section 6.7 of the Regulation under the Act) extended the flavored-product restrictions to vaping products. Section 1 of the Act sets out a broad scope: the Act applies to harvested tobacco in any form and presentation, and assimilates to tobacco any product containing tobacco, as well as electronic cigarettes and similar devices used to inhale substances with or without nicotine, including their components and accessories, plus any other product or category that a regulation assimilates to tobacco. The Regulation adds, in section 1, that any product that does not contain tobacco but is intended to be smoked is also assimilated to tobacco. Within this legal structure, the core issue for the court was whether, in the specific circumstances of this sale, the DropShot flavor enhancer constituted an assimilated “tobacco product” and was therefore subject to the statutory ban on non-tobacco flavors.

Arguments about the nature and intended use of the DropShot product
Popavape argued that the legislative and regulatory texts are clear and that DropShot is neither a component nor an accessory of an electronic cigarette. According to the defense, it is simply a stand-alone food additive that can be mixed into drinks, desserts, or other liquids to enhance flavor, and thus lies outside the regulated vaping context. The defendant further maintained that DropShot is not “intended to be smoked” under the Regulation, relying on an earlier decision (Reid) that construed the phrase “intended specifically to” in a narrow manner. On this view, DropShot is a lawful flavoring product whose possible use in vaping is incidental and does not transform it into a tobacco product or equivalent under the Tobacco Control Act.

Assessment of the evidence and commercial context
The court rejected this narrow reading and emphasized the importance of the real-world commercial context. It found significant that the DropShot bottles were kept behind the counter, that the clerk proactively offered the enhancer to a customer purchasing nicotine liquid, and that she gave a hands-on demonstration showing how to connect the bottle tips and pour the flavoring into the nicotine solution. For the court, this behavior made sense only if the purpose was to add flavor to nicotine liquid to be inhaled via a vape device, effectively recreating a flavored vaping product that the law aims to prohibit. The inspector’s observations that DropShot had a sweet, fruity aroma with no resemblance to tobacco supported the conclusion that the product was chosen and marketed for its attractive non-tobacco flavor profile. The physical compatibility of the bottle tips further indicated that the products were designed to be used together, going well beyond a typical kitchen essence or vanilla extract, which is dispensed in drops and not engineered to lock onto another bottle. Taken together, these elements of proof showed that, at the point of sale, the enhancer was being promoted and used as part of a flavored vaping system.

Legal interpretation and characterization as a tobacco-equivalent product
In its legal analysis, the court adopted a purposive interpretation of the Act and Regulation, highlighting their overarching goal of combating tobacco use and preventing young people from being attracted to vaping by appealing flavors and aromas. The statutory scheme expressly assimilates to tobacco electronic cigarettes and their components and accessories, while the Regulation covers products without tobacco that are intended to be smoked. Focusing on this notion of intended use, the court held that when DropShot is sold together with nicotine liquid and accompanied by a demonstration showing how to mix the two for inhalation in a vape device, it becomes, in practice, a component of an electronic cigarette product intended to be smoked. In this configuration, DropShot falls within the category of a tobacco-equivalent product under section 1 of the Regulation. The court found that Popavape’s approach—separating nicotine and flavoring at the point of sale and then encouraging their recombination by the purchaser—was a strategy to circumvent the flavor ban. The court stressed that the Tobacco Control Act and its Regulation aim to prevent such indirect methods of offering flavored vaping products that would undermine the legislative purpose.

Strict liability and failure of the due diligence defence
The offence in question is a strict liability offence. Once the Crown proves the prohibited act—here, the sale of a flavored product assimilated to a tobacco product—intention or knowledge need not be shown, and the burden shifts to the defendant to demonstrate due diligence. The court found that Popavape failed to establish such a defence. There was no evidence of any concrete compliance measures, such as employee training programs, supervision practices, internal policies, or controls designed to prevent contraventions of the expanded flavor prohibitions that took effect on 31 October 2023. In the absence of proof that reasonable steps were taken to avoid committing the offence, the defendant could not escape liability under the strict liability regime.

Outcome and monetary consequences
In the result, the Court of Québec (Criminal and Penal Division) found Les Exploitations Popavape inc. guilty of selling a product assimilated to a tobacco product that contained a non-tobacco flavor, contrary to the Tobacco Control Act and its Regulation, on the basis that DropShot was intended to be combined with nicotine liquid for inhalation in an electronic cigarette. The Directeur des poursuites criminelles et pénales emerged as the successful party in the proceedings, and the court ordered Popavape to pay the statutory minimum fine of CAD 2,500, with no additional specific award for costs or damages indicated, so that this minimum fine represents the total monetary amount imposed in favor of the prosecuting authority.