News release

December 12, 2005 

Health Groups Urge Feds to Ban Tobacco Advertising.

 (Ottawa – December 12, 2005) - On the tenth anniversary of the federal recommendation to completely ban tobacco advertising, health agencies are calling on the government to finally implement this measure.

“It’s past time that Canada’s tobacco laws were brought up to the standards of France, Poland, Iceland, South Africa, Thailand, and the many other countries which have comprehensively protected their citizens from tobacco advertising,” said Ken Kyle, director of public issues  (national) for the Canadian Cancer Society.  “Once, Canadian laws were amongst the strongest – now there are dozens of countries with stronger laws against tobacco advertising.”

“A decade ago, the government looked to a complete ban on advertising,” said Robert Walsh, executive director of the Canadian Council for Tobacco Control. “But ten years later, many forms of tobacco advertising continue to be legal in Canada – including tobacco ads by direct mail, in bars and in magazines and other publications.”

On December 11, 1995, the government issued a ‘Blueprint on Tobacco Control’ which recommended a complete ban on tobacco advertising. The ‘Blueprint’ said: “The government believes that a complete ban on advertising is the most effective measure to achieve its health policy objectives.  The government is committed to providing the necessary evidence to support the most comprehensive prohibition on advertising possible… The government is committed to introducing the most comprehensive restrictions on sponsorship possible.”

The ‘Blueprint’ was the government’s first response to the Supreme Court’s decision of September 21, 1995, that the government had failed to meet the ‘minimal impairment’ test by failing to provide evidence that a total ban on advertising was required and that less intrusive measures (such as a partial ban) would not be sufficient to meet its health goals.                                                                                                “The evidence reviewed by the Supreme Court in 1995, based on a trial that ended in 1990, is now more than 15 years old and is only a fraction of the evidence which supports a total ban on tobacco marketing,” said Sally Brown, chief executive officer of the Heart and Stroke Foundation of Canada. “In 1995, the Health Minister was correct in saying the evidence to support a total ban was available. The evidence is even stronger now.”  As a result of the legal actions of American jurisdictions, millions of tobacco industry documents have been made public, and health researchers have been able to further solidify the legal and health basis for a ban on tobacco advertising.

“We are very confident that the Supreme Court would support a total advertising ban,” said Scott McDonald, vice president of the Lung Association.  “Such bans have been found constitutional in other countries, like France and Slovenia, which have constitutional protection for freedom of speech. Moreover, the first judge to rule on the current Canadian law suggested that he would have supported a total ban.”  Judge André Denis of the Quebec Superior Court wrote in his judgment on the Tobacco Act in 2002: “A total ban on tobacco advertising would be much more easily defended now than in 1989.”

“The need for a comprehensive ban on tobacco advertising has been documented by the World Bank, the World Health Organization and has been codified in the new tobacco treaty, the Framework Convention on Tobacco Control (the FCTC),” said Garfield Mahood, executive director of the Non Smokers’ Rights Association. The FCTC, which was ratified by Canada in November 2004, requires that a comprehensive ban on tobacco advertising, promotion and sponsorship be put into effect within five years of the treaty coming into force, unless such a ban is inconsistent with the constitution of that country. Countries where a comprehensive ban is not consistent with its constitution must restrict advertising, promotion and sponsorship and must require health warnings on all permitted advertising.

“The foundation for the FCTC requirement for a comprehensive ban on tobacco advertising is the evidence which would satisfy Canada’s Supreme Court.  Once the Court is satisfied, and upholds the principle that Canada can ban advertising, then Canada has an obligation to implement such a measure,” explained Cynthia Callard, executive director of Physicians for a Smoke-Free Canada. “The only barrier to the mutually supportive work of the FCTC and our Supreme Court in protecting public health is the government’s failure to initiate the strengthening of Canada’s tobacco laws.”

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For information:

Cynthia Callard      613 233 4878
Ken Kyle               613 565-2522 x 301
Luc Lapointe (the Lung Association)   613-569-6411
Garfield Mahood     416 928 2900
Heather Rourke (Heart and Stroke)  613 569-4361 x 318
Robert Walsh           613 567-3050 x 107

Background

Countries which sign and ratify the Framework Convention on Tobacco Control (FCTC) make the following commitment:

 “in accordance with its constitution or constitutional principles, undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship. This shall include, subject to the legal environment and technical means available to that Party, a comprehensive ban on cross-border advertising, promotion and sponsorship originating from its territory.”[1]

In the process of implementing the FCTC, the Canadian government will have to review the extent to which a comprehensive tobacco advertising ban is in accordance with Canada’s constitution, and the legal environment and technical means available in Canada.

Is a comprehensive ban on tobacco advertising, promotion and sponsorship in accordance with Canada’s constitution or constitutional principles?

We say Yes.

The Canadian Charter has been in effect since 1982. Over the past 23 years, the interpretation and application of freedom of expression to commercial expression has changed and evolved, as has the federal government’s reflections on the impact of the Charter on restrictions on tobacco advertising.

• Between 1987 and 1995 (the date of the Supreme Court decision), the government maintained that the Charter allowed a total ban on tobacco advertising

• On September 21, 1995 the Supreme Court ruled that the government had failed to prove the evidence which supported a total ban.  The court did not rule that there could not be a total ban on tobacco advertising, only that it had to be justified with evidence.  The court was deeply split:  four of the nine judges felt that the total ban on advertising was reasonable and justified even on the evidence available at that time. 

• In December 1995, the Minister of Health issued a “Blueprint on Tobacco Control” which stated that the government was of the view that “a complete ban on advertising is the most effective measure to achieve its health policy objectives. The government is committed to providing the necessary evidence to support the most comprehensive prohibition on advertising possible…  The government is committed to introducing the most comprehensive restrictions on sponsorship possible.”[2]

 Links:
Health Canada: Highlights of the “Blueprint on Tobacco Control” 
http://www.hc-sc.gc.ca/ahc-asc/media/nr-cp/1995/1995_85bk1_e.html

Health Canada: Minister of Health (Diane Marleau) comments, December 11, 1995
http://www.hc-sc.gc.ca/ahc-asc/media/nr-cp/1995/1995_85mse_e.html

• In December 1996, a new Minister of Health presented a replacement act for the Tobacco Products Control Act which fell far short of the comprehensive ban recommended in the Blueprint.  The new Tobacco Act did not comprehensively ban tobacco advertising and, following amendments, allowed lifestyle promotions to continue through sponsorship until 2003.  

• In April 1997, the Tobacco Act came into effect and the tobacco companies launched a court challenge, arguing that the law was, de facto, a total ban and that it infringed the Charter.

• In January 2002, the trial of the Tobacco Act began in Montreal.  The tobacco companies argued that the government had imposed a de facto total ban on advertising.

• In December 2002, the Quebec Superior Court ruled on the tobacco industry challenge and upheld the law.  Judge André Denis’ judgment was the strongest decision yet in Canada in favour of restricting tobacco promotions.  The tobacco industry lawyers complained later that the judge had not addressed whether the Act allowed for advertising.[3]  Instead the judge issued a ringing endorsement of the restrictions in the Tobacco Act.  The judge ruled:

“there is incontrovertible evidence that advertising and sponsorship encourage people, especially adolescents, to consume tobacco products." … "it is important to look closely at how the tobacco companies have used their freedom of expression up to now and at the effects their messages have had on the health and lives of consumers."

• In our view, Judge Denis gave the green light for the government to reconsider the justifiability of a comprehensive ban on tobacco advertising when he wrote:

“[The rights of the tobacco industry] cannot be given the same legitimacy as the government's right to protect public health." …  “A close reading of all the opinions handed down by the Supreme Court in the first case, together with the evidence introduced at this trial, indicates that a total ban on tobacco advertising would be much more easily defended now than in 1989.”

Who can decide whether a comprehensive ban on tobacco advertising is now justified by scientific evidence?

The Supreme Court of Canada.

Will the Supreme Court of Canada be able to support a comprehensive ban on advertising when (or if) it hears an appeal of lower court rulings on the Tobacco Act?

Possibly not. 

The Court has now had referred to it the question of whether Tobacco Act goes too far. It has not been asked to rule whether a stronger law is justified.

How else can the Supreme Court rule that a comprehensive ban is justified?

By way of a reference.

The federal government (or a provincial government) could ask the Supreme Court (or the highest provincial court) a “reference” question, seeking clarification on the constitutionality of a proposed measure.  This is the procedure used by the federal government before bringing in legislation with respect to gay marriage, the ‘Clarity Bill’, and anti-inflation measures.  References have also been used by provincial governments.

By way of legislation.

By legislating a comprehensive ban on tobacco advertising, such as that required in the Framework Convention on Tobacco Control, Parliament would set a higher benchmark for the Supreme Court to assess the tobacco company challenge.

There is little doubt that any marketing restrictions would be challenged by the tobacco companies operating in Canada.  A stronger law (and the evidence to support it) could be the basis of a different reflection by the Supreme Court.