Top court upholds tough tobacco ad laws
Last Updated: Thursday, June 28, 2007 | 10:44 AM ET
CBC News
The Supreme Court of Canada upheld on Thursday the laws restricting tobacco companies from advertising their products, dismissing the companies' argument that the laws violate their right to freedom of expression.
Cigarette companies argue that the restriction prohibiting ads that can be 'construed' as appealing to youths is an impossible standard to follow.
(CBC)
In a 9-0 judgment, the court ruled the 1997 law, and the detailed regulations that go along with it, were a "reasonable limit" that can be justified under the Charter of Rights and Freedoms.
Chief Justice Beverley McLachlin, writing for the court in Ottawa, rejected the companies' contention, and concluded the advertising law's key provisions "are constitutional in their entirety," and "nothing less than a matter of life or death for millions of people who could be affected."
She also took the companies to task for having a long history of misleading the public in their advertising, and remarked their ability to send a positive message about a noxious product was impressive.
"The expression at stake — the right to invite consumers to draw an erroneous inference as to the healthfulness of a product that, on the evidence, will almost certainly harm them — is of low value," McLachlin wrote.
The law requiring graphic warning labels on cigarettes packages to occupy half the area of the fronts and backs of packages was also upheld.
The decision follows hearings in Ottawa in February, when Imperial Tobacco Canada, JTI-Macdonald, and Rothmans, Benson & Hedges argued that they have the constitutional right to advertise, but the laws are so restrictive that they essentially amount to a complete ban.
The court "confirmed that there is a window of legitimate advertising," and will allow tobacco companies to resume advertising in a "narrow" form, after not doing so for a decade, said Simon Potter, a lawyer for Imperial Tobacco.
"From zero, it will change to something," Potter told CBC News on Thursday after the court announced its decision. "You will never see a billboard or a television ad."
The Tobacco Act, which came into effect in 1997, bans tobacco sponsorship, restricts the way cigarettes are advertised and requires large warnings on packages.
Since 1997, large warnings have been required by law on cigarette packages.
(Tom Hanson/Associated Press)
But Rob Cunningham, a lawyer for the Canadian Cancer Society, one of the interveners in the Supreme Court case, said Canada's legislation is weak compared to countries such as Australia that ban tobacco advertising outright.
"We’re dealing with a tobacco epidemic," Cunningham told CBC News on Thursday.
"The tobacco companies aren't going to spend millions of dollars on legal fees if there isn't a business reason to do so … They hope to invalidate this law and we are trying very hard to stop it."
The manufacturers have said they accept some prohibitions on promoting their product, including advertising aimed at youth. But they also argued they should be allowed some freedom to advertise to adult smokers, since cigarettes are legal to sell.
Law allows ads in some publications, direct mail
The case made it to the top court after a Quebec Superior Court judge upheld the act entirely in 2002, and the Quebec Court of Appeal ruled three years later that it's unfair to bar tobacco companies from exhibiting names in sponsored events.
However, the three Appeal Court judges said specific brand names cannot be used in such events.
The federal government has maintained the existing law is clear and justifiable due to the dangers of smoking. Other interveners in the top court case are the attorneys general of New Brunswick, Manitoba, Saskatchewan, Quebec, Ontario and British Columbia.
The Tobacco Act now stipulates that tennis tournaments and car races can no longer be associated with a company marketing cigarettes.
And while cigarette companies are allowed to advertise in adult-only locations, they cannot create ads that can be "construed" as appealing to youths — a standard manufacturers say is impossible to follow.
The law does allow brand advertising in places prohibited to young people. It also allows advertising in some publications and through direct mail.
