Key Issues

Change in effect as of Oct. 1st, 2003

The federal Tobacco Act now bans all sponsorship advertising. Specifically, section 24 of the Act says:

No person may display a tobacco product-related brand element or the name of a tobacco manufacturer in a promotion that is used, directly or indirectly, in the sponsorship of a person, entity, activity or permanent facility.

Note that sponsorships themselves are not banned: tobacco companies are still free to give money to arts or sports organizations, so long as these donations are not used as springboards for tobacco advertising.

However, since the early 1990s, sponsorship advertising has been a key aspect of cigarette marketing. In the absence of this vehicle, manufacturers will seek new approaches to maintaining the glamorous image of their leading brands and making them attractive to young people. We are likely at the beginning of a phase of experimentation by the tobacco industry, in which companies test how far they can go before the public health community reacts and Health Canada chooses to prosecute.

If it’s not explicitly allowed, it’s prohibited

The drafters of the Tobacco Act didn’t try to regulate every imaginable type of tobacco marketing. Instead, they started with a simple principle: some limited types of advertising should be allowed under some circumstances, and all other forms of promotion are prohibited.

Promotion is defined very broadly, as:

a representation about a product or service by any means, whether directly or indirectly, including any communication of information about a product or service and its price or distribution, that is likely to influence and shape attitudes, beliefs and behaviours about the product or service.

For example, paying actors to smoke on-screen, setting up an Internet site to extol smoking in general or one brand in particular, or posting a sign outside a gas station that says “Cigarettes $62.25 per carton” would all constitute promotion, and are thus prohibited unless specifically allowed by some other provision of the Act.

Permitted forms of advertising

Tobacco advertising must meet conditions with respect to both venue and content in order to be legal.

Three venues are allowed:

• Direct mail, addressed to a specific adult;
• Publications with an adult readership of 85% or more (though it is not clear what proof of readership is required);
• Signs in a place where young persons are not permitted by law (i.e. bars).

With respect to content, two categories of ads are allowed: brand-preference and information advertising, i.e. factual information about a product, its characteristics, its availability and its price. However, advertisements in these two categories:

1. Must not mislead or deceive, or be “likely to create an erroneous impression about the characteristics, health effects or health hazards of the tobacco product or its emissions”;
2. Must not constitute lifestyle advertising, defined as advertising that “associates a product with, or evokes positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, vitality, risk or daring.”
3. Cannot be “construed on reasonable grounds to be appealing to young people”.

Marketing in the grey area — bar promotions

In countries such as France or South Africa that have total bans on tobacco advertising, cigarette companies have long used bar promotions to market their products. Sometimes this is simply hit-and-run marketing: blatantly illegal, but difficult to prosecute, because the illegal activity occurs late at night in dark bars and the marketing firms keep moving from bar to bar to avoid detection.

In Canada, where some advertising is allowed, the industry appears to be trying a different approach, testing Health Canada’s will to enforce.

A typical scenario is this: ads are published widely about a well-known DJ or music group performing in a particular club, with no indication the ads are being paid for by a cigarette manufacturer. The club’s interior has been re-decorated in the colour(s) of a specific cigarette brand, which is being sold to club patrons by attractive “cigarette girls”. On the tables are ashtrays with the logo of the same brand.

Clearly the intent of this marketing operation is contrary to the spirit of the Tobacco Act: the manufacturer is attempting to make a particular brand more glamorous by associating it with ‘cool’ music and sexy women. No meaningful information is being provided about the brand, merely hype.

But is this operation against the letter of the Tobacco Act? Several elements arguably are:

• The Act allows manufacturers and retailers to sell branded accessories (like ashtrays), but paying to have them placed on tables in a bar is a form of promotion, and not allowed under any provision of the Act.
• Bars are allowed venues for permissible advertisements – but only for informational signs (“affiches” in French, that is, posters). Cigarette girls are not advertisements, but their presence is a form of promotion, not allowed for by any provision of the Act.
• Moreover, cigarettes may not be sold “by means of a display that permits a person to handle the tobacco product before paying for it.” (Sect. 10.(2))
• Re-painting a bar in brand colours probably isn’t an advertisement under the meaning of the Act (but if it is, it’s not informational, and hence illegal); it certainly is promotion, and hence illegal.
• Inviting people to come to a bar with a hidden agenda of selling them cigarettes is certainly likely to “influence and shape attitudes, beliefs and behaviours” about that brand. It’s promotion, whether or not a cigarette logo is used; it is not authorized by any provision of the Act; it is thus illegal.

Marketing in the grey area — point of sale

The Tobacco Act allows tobacco products to be displayed at point of sale (“subject to regulations”, which have yet to be enacted).

The Act also specifies that a retailer “may post…signs at retail that indicate the availability of tobacco products and their price”. It is unclear whether outdoor price signs, such as those found at gas stations, are technically legal. In the French version of the Act, “at retail” is translated as “in a retail establishment,” suggesting that only indoor signs are allowed.

Of greater concern is the tobacco industry’s push to turn product displays into advertisements. When sponsorship advertisements at point-of-sale were banned in October 2000, many of these ads were replaced with artistic collages of cigarette packs, often glued to a background painted in brand colours.

If Health Canada treats this as a (legal) product display rather than as an illegal advertisement, there seems to be no reason why a manufacturer could not extend the concept, turning the entire wall of a store into one big cigarette ad. With a large enough of wall, one could even spell out an advertising slogan in cigarette packs.

Marketing in the grey area — other problems

Under the Act, foreign publications can be sold in Canada even if they contain tobacco advertising that wouldn’t otherwise be legal, such as lifestyle or youth-oriented advertising. However, Canadian manufacturers are prohibited from placing ads in foreign publications with a view to promoting their products in Canada.

The grey area concerns brands that are sold both in Canada and in other countries. For example, Imperial Tobacco recently ran a large sponsorship campaign around Kool menthol cigarettes — at the same time as its US sister company, Brown & Williamson, was heavily advertising Kool south of the border.

A different type of promotional piggybacking could also occur with advertising for non-tobacco products under tobacco brand names. This has been a big problem in some European countries, where Camel and Marlboro footwear and fashion accessories have been marketed heavily.

In Canada, such advertising would be subject to the ban on lifestyle advertising or advertising appealing to youth. But “du Maurier incontinence diapers” could clearly be promoted more or less at will. Would the authorities take action against ads for Export ‘A’ Coffee or Player’s Fishing Gear?

What do I do if I spot what looks like a violation of the Act?

If you are unsure whether something does constitute a violation of the Act, call or email Francis Thompson of the Smoking & Health Action Foundation/Non-Smokers’ Rights Association. (See NSRA Contacts page.)

If at all possible, take photographs. Send written complaints to Health Canada regional offices, or directly to Denis Choinière, Director of the Office of Regulations and Compliance, Tobacco Control Programme, Health Canada, P.L. 3507C1, 123 Slater Avenue, Ottawa, ON, K1A 0K9.

Please provide a copy of the complaint to Stacy Landau of the Ontario Tobacco-Free Network  at [email protected].