Richard Paquette has a cigarette while walking past the Supreme Court of Canada in Ottawa on Thursday on Sept. 29, 2005, following the SCOC unanimous decision to clear the way for the B.C. government to sue cigarette companies for the cost of treating smoking-related illness. Cigarette companies had another day in Supreme Court on Monday, Feb. 19, arguing that the Tobacco Act violates their constitutional rights. (Tom Hanson/Canadian Press)
Right from the beginning, the federal government's efforts to slap restrictions on the promotion and sale of tobacco products have met with stiff resistance.
The House of Commons passed the Tobacco Act in April 1997. The legislation replaced the Tobacco Sales to Young Persons Act and the Tobacco Products Control Act. It provided standards for tobacco products, regulated access to tobacco, set the rules for labelling and promotion of tobacco products, and put in place rules for enforcing tobacco laws.
The Act put in place a process that by October 2003 prevented tobacco companies from sponsoring events. Tennis tournaments and car races could no longer be associated with a company that marketed cigarettes.
It did not ban all tobacco advertising. The legislation allows brand advertising in places where young people are prohibited from entering. It also allows advertising in some publications and through direct mail.
But some provinces have gone further than the federal legislation. For instance, in Quebec, tobacco companies are prohibited from advertising in bars. And in some provinces, cigarettes cannot be openly displayed in stores.
The Act also required larger graphic warning labels on packages of cigarettes. Instead of taking up a third of the size of a pack, the labels would now occupy half the area of the fronts and backs of cigarette packs.
The three major tobacco companies — Imperial Tobacco Canada Ltd., Rothmans, Benson & Hedges Inc. and JTI-Macdonald Corp. — were in court almost immediately, arguing the legislation violated their constitutional rights. Increasing the size of warning labels was an infringement of the tobacco companies' right to free speech, they argued.
The companies also argued that they should be allowed some freedom to advertise to adult smokers, since they do sell a legal product. They conceded that prohibitions against "lifestyle advertising" and against advertising aimed at youth are acceptable limits on their freedom of expression.
Big Tobacco hasn't fared that well in its legal challenges of the Tobacco Act. But on Aug. 22, 2005, the Quebec Court of Appeal ruled that it is unfair to forbid tobacco companies from exhibiting their company names when they sponsor an event. However, the companies are still not able to sponsor an event using a brand name.
On Feb. 19, 2007, the tobacco companies went to the Supreme Court of Canada in their last bid to persuade the legal system to overturn the federal legislation. The federal government, the attorneys general of New Brunswick, Manitoba, Saskatchewan, Quebec, Ontario and British Columbia and the Canadian Cancer Society argued in favour of upholding the legislation.
On the other side of the courtroom is the federal government. Acting as interveners are the attorneys general of New Brunswick, Manitoba, Saskatchewan, Quebec, Ontario and British Columbia as well as the Canadian Cancer Society.
Rob Cunningham will represent the cancer society.
"On advertising, our legislation has fallen behind worldwide trends," he told CBC News Online. "The World Health Organization's Framework Convention on Tobacco Control requires signatories to ban all tobacco advertising. Canada has signed on to that treaty."
The WHO convention is the first global health treaty negotiated under the auspices of the World Health Organization. It's an attempt to regulate tobacco internationally and was developed to counter the globalization of the tobacco industry.
Under the FCTC, countries are obliged to:
- Work towards the elimination of illicit trade in tobacco products.
- Ban tobacco sales to and by minors.
- Help tobacco farmers diversify and find other uses for their land.
As well, the treaty specifies that signatories are required to ban "all tobacco advertising, promotion and sponsorship within five years of the WHO FCTC's entry into force for that Party."
In cases where total bans are unconstitutional, signatories are required to apply as many restrictions as their constitutions allow.
Canada signed the treaty on July 15, 2003. It entered into force on Feb. 27, 2005, 90 days after the 40th country to sign on ratified it.
Cunningham notes that the tobacco companies have refrained from advertising while this case worked its way through the courts. But he is concerned that no matter what the courts rule, the tobacco companies will look for loopholes.
"Tobacco companies are creative marketers," he said.
After the ruling, Simon Potter, a lawyer for Imperial Tobacco, told CBC News that the country does not need a total ban on tobacco advertising.
"Just last week, there was a report of a huge decline in smoking in New York City. They have all kinds of [tobacco] advertising, but smoking rates still fell. I'm not so sure we need an ad ban."
On June 28, 2007, the Supreme Court ruled to uphold the federal legislation. In a unanimous decision, the court ruled the ban is constitutional, not vague and does not restrict free speech as the companies had argued.
But while the legal challenge to Canada's Tobacco Act may be over, the debate will likely go on. The law stands and that means tobacco companies are free to end their self-imposed moratorium on the advertising that the law allows:
- In places where young people are prohibited from entering.
- In certain adult publications.
- Through direct mail.
The law does not specifically address advertising on the internet, a medium where age restrictions are a little tougher to enforce.
