The Tobacco Industry’s Challenge to Canada’s Tobacco Act
Please note: This document pre-dates trial-court proceedings in the Tobacco Act case. On Dec. 13th, 2002, Québec Superior Court rejected all elements of the tobacco industry challenge. See J.T.I. MacDonald v. Attorney General of Canada.
The stakes are high
Tobacco industry products cause more deaths than accidents, suicide, alcohol and AIDS combined. Both the World Health Organization and Health Canada predict that the tobacco industry will cause more than three million deaths from among Canadians presently alive. In fact, there is a consensus in the national health community that tobacco industry marketing is the cause of a public health crisis.
The Tobacco Act is the core of the federal government’s response to a public health threat of this magnitude. Consequently, the trial that begins on January 14th may very well be one of the most important events in the history of Canadian public health. If the tobacco industry were to be successful in its attempt to overturn the Tobacco Act, public health in Canada could be set back by decades.
However, the stakes are even higher than what is stated above because the Tobacco Act is world precedent-setting legislation, as was its predecessor, the Tobacco Products Control Act (TPCA). Because other countries have modelled their tobacco control laws after Canadian legislation, the loss of the Tobacco Act in Canada could set back tobacco control internationally. The stakes are high and the number of tobacco industry-caused deaths which occur in the future may in large part be determined by the quality of legal argumentation and evidence that are brought forward in this courtroom.
Canada’s serious attempts to regulate tobacco marketing and the tobacco industry began with the passage of the TPCA in 1988. Recognizing the serious threat that this legislation posed to tobacco marketing, the industry challenged this legislation later that year. Unfortunately for public health, the Supreme Court of Canada overturned the TPCA by a narrow margin of 5 to 4 on September 21, 1995. When in force, the Act imposed almost a total ban on advertising and gave the federal government the authority to regulate tobacco packaging.
However, a loophole in the TPCA gave the tobacco industry the opportunity to sponsor arts and sports events under corporate names. The industry exploited this loophole by creating shell companies using cigarette brand names. This had the sole purpose of allowing arts and sports sponsorship advertising to replace traditional brand advertising. This had the effect of seriously undermining both the intention of Parliament and the goal of the legislation.
Since the loss of the TPCA in 1995, the tobacco industry has attempted to position the decision as a total rejection of many of the federal government’s efforts to regulate tobacco marketing. In fact, the industry only achieved limited success in 1995. The Supreme Court recognized the federal government’s authority to legislate tobacco. Of considerable importance, the Court recognized that tobacco advertising can cause tobacco consumption. It also acknowledged, following a review of the tobacco industry’s marketing documents, that tobacco advertising is aimed at keeping smokers in the market and recruiting new smokers amongst youth.
However, government lawyers were not able to convince the Supreme Court that a partial ban, such as a ban on lifestyle advertising, would not achieve the same purposes as a complete ban. Therefore, the Court invalidated the restrictions on advertising. It also agreed with the tobacco industry that the black and white health warnings appearing on tobacco packages at the time needed to be attributed to the government.
The Tobacco Act
The federal government responded to the Supreme Court by introducing Bill C-71, the Tobacco Act, in the House of Commons in December, 1996. The bill was design to reduce tobacco consumption by:
- introducing significant restrictions on tobacco advertising;
— no more lifestyle advertising
— advertising would only be permitted in adult establishments, in publications with an 85% adult readership and in mailings addressed directly to adults
- banning tobacco sponsorship;
- giving the federal government the authority to regulate tobacco packaging;
- giving the federal government the authority to regulate tobacco products;
- banning sales of tobacco to minors.
Bill C-71 obviously generated a heated public debate which focused mostly on the sponsorship issue. The Alliance for Sponsorship Freedom, a tobacco industry front, claimed that a total ban on tobacco sponsorship would lead to catastrophic consequences for many arts and sports events. However, the health community ultimately prevailed and convinced the federal government to pass the legislation in 1997.
Soon afterwards, Canada’s major tobacco companies filed constitutional challenges to the Tobacco Act. They claim that the advertising restrictions are equivalent to a total advertising ban. Therefore, the industry contends that the restrictions violate its constitutional right to freedom of expression according to section 2(b) of the Canadian Charter of Rights and Freedom. The industry also challenges other provisions of the Act which it claims are either too vague or constitute unreasonable powers of search and seizure.
The Act to amend the Tobacco Act
Regrettably, the protest over tobacco sponsorship was successful in forcing the government to introduce amendments to the Tobacco Act. Despite objections from the health community, the federal government passed the Act to amend the Tobacco Act in December 1998. This amendement delayed the implementation of the tobacco sponsorship ban.
After passage of this amendment, tobacco sponsorship was wide open until October 1st, 2000. As of this date, tobacco sponsorship promotions are only permitted on the site of an event, in adult establishments, in publications with an 85% adult readership and in mailings addressed directly to adults. A total sponsorship advertising ban comes into effect as of October 1st, 2003. In the meantime, almost all of the major arts and sports events have found new sponsors to replace the tobacco companies.
The Tobacco Products Information Regulations and the Tobacco Reporting Regulations
In 2000, in response to an intensive campaign by public health groups, the federal government passed, under the Tobacco Act, the Tobacco Products Information Regulations and the Tobacco Reporting Regulations. These regulations require the tobacco industry to implement Canada’s world precedent-setting tobacco package warning system and to submit periodical reports on:
- manufacturing procedures,
- ingredients in tobacco products,
- tobacco smoke emissions,
- research activities,
- promotional activities.
As for the warning system, since June 2001, all tobacco companies are required to print 16 new health warnings in French and English on the top 50% of their packages with bold pictures and information depicting the devastating health consequences of tobacco use. Another set of 16 messages appears inside the package to give further information to consumers. A recent Canadian Cancer Society survey has revealed that these new warnings are very effective for improving public awareness of the serious health risk associated with tobacco use. The European Union and Brazil have since followed Canada’s leadership and have adopted similar rules.
The tobacco industry claims these warnings constitute an unjustified expropriation of their trademarks. It also claims the Reporting Regulations are unreasonable.