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Court victory for Big Tobacco

Not too long ago, Canadians could smoke virtually anywhere they pleased: at work, in theatres, restaurants and even hospitals. Smoking rates peaked in the early 1960s, when nearly half of all adults puffed away. But as evidence of the health hazards of cigarettes piled up, high taxes, graphic warnings and restrictions on smoking have helped make smoking unacceptable. CBC Archives traces the decline of smoking in Canada.

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Even tobacco companies have the right to freedom of expression. In a stunning victory for cigarette manufacturers, the Supreme Court of Canada has struck down a six-year-old ban on cigarette advertising. The ruling opens the door for tobacco companies to advertise again, although the companies are respecting the current rules until new ones can be drafted. It's not over, Health Minister Diane Marleau tells CBC News. "We're going to continue to fight this," she says.

Anti-smoking groups believe the government can keep a tighter grip on the tobacco companies by declaring tobacco a hazardous product. Many Canadians, however, agree with the court's decision. Though they support restrictions on the availability and advertising of cigarettes, they believe freedom of expression includes the right to advertise a legal product. 
. The Supreme Court decision arose out of the tobacco companies' challenge of the Tobacco Products Control Act shortly after it passed in 1988. They charged that it was a violation of their freedom of expression as guaranteed in the Charter of Rights and Freedoms.
. One of the companies also argued that the health warnings it was forced to place on its packages were unconstitutional.

. The tobacco companies' cases were heard together, and in July 1991 a Quebec judge agreed with their arguments.
. The government immediately appealed, winning in a 2-1 decision in the Quebec Court of Appeal in January 1993. The appeals court said that because the government had proven that an ad ban would reduce smoking, the ban was a reasonable limit on freedom of expression.
. When the tobacco companies appealed that decision, the case went to the Supreme Court.

. Nine judges heard the case. They voted 5-4 in favour of the tobacco companies.
. In explaining her majority decision, one judge wrote: "While one may conclude as a matter of reason and logic that lifestyle advertising is designed to increase consumption, there is no indication that purely informational advertising would have this effect. The government had before it a variety of less intrusive measures when it enacted the total ban on advertising."

. A dissenting judge wrote: "The harm engendered by tobacco, and the profit motive underlying its promotion, put this form of expression as far from the core of freedom of expression values as prostitution, hate-mongering or pornography and thus entitle it to a very low degree of protection under [the Charter]."
. The decision technically allowed tobacco companies to resume advertising on radio and television - something they had voluntarily given up in 1972.

. The government proceeded with legislation to replace the struck-down law. In April 1997 it passed the Tobacco Act, which, in addition to banning advertising, gave Ottawa the power to regulate the contents of cigarettes.
. The Tobacco Act had provided an exemption for tobacco sponsorships (for example, those tied to arts and sporting events). That exemption was phased out in October 2003.

. However, tobacco companies were still permitted to use their brand names on accessories such as lighters and in retail displays. Tobacco promotion was still permitted in the following places:
– Publications mailed to adults identified by name.
– Publications with an adult readership of 85 per cent or more.
– Signs in locations not accessible to minors.


. In 2004, the Canadian Tobacco Manufacturer's Council launched a website and online community for adult Canada smokers. According to the Canadian Medical Association Journal, the site - called mychoice.ca - signed up 5,000 members in its first three weeks. The website cost $2.5 million to launch.

. A Quebec court struck down parts of the Tobacco Act in August 2005. The court said it was unconstitutional for the government to prohibit an association between a public event and the name of a tobacco company. However, it upheld the ban on specific brand names being tied to public events.

. In 1998, a U.S. court levied a fine of $15 million on Northern Brands, a subsidiary of tobacco company R.J. Reynolds based in North Carolina. Northern Brands had pleaded guilty and been convicted of conspiring to illegally import cigarettes from Canada into the United States. At the time, it had claimed the cigarettes were for export to Eastern Europe. Instead, they had been smuggled through the Akwesasne reserve back into Canada.
Medium: Television
Program: The National
Broadcast Date: Sept. 21, 1995
Guest(s): Paul Rutherford
Host: Peter Mansbridge
Reporter: Susan Harada, Jeffrey Kofman
Duration: 4:44

Last updated: April 10, 2012

Page consulted on September 10, 2014

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