Public
Issues in Canada
S-15:
The Tobacco Youth Protection Act.
May
24, 2001
A
letter to Canadian Members of Parliament:
Re:
Sober second thoughts about S-15
Dear
Member of Parliament:
I
am writing to share some thoughts about a very important and popular piece
of legislation which will be before the House in the coming days and
weeks.
I
encourage you to take a few minutes and read S-15, the Tobacco Youth
Protection Act. You will see that while the bill proposes a levy to
reduce youth smoking, it also proposes to give many significant statutory
benefits to tobacco companies
Can
a law truly achieve tobacco industry purposes and public health needs?
With both public health groups and tobacco companies supporting this bill,
you may naturally come to the conclusion that S-15 does in fact perform
this miraculous achievement. The reality is more complex.
Many
Canadians who support S-15 are not familiar with legislation, and may not
have fully understood the constitutional restrictions on Senate bills, and
the implications for public health of including tobacco industry benefits
in a bill to reduce smoking. Nor was this seen as a terrifically
important consideration while support was growing behind S-15 for a new
public commitment to reduce smoking.
S-15
has already served an enormous public service by drawing attention to the
need for improved funding for tobacco control, and by contributing to the
recent commitment on the part of the Ministers of Finance and the Minister
of Health to provide $480 million over 5 years to comprehensive tobacco
control measures. Senator Colin Kenny is to be commended for his
tireless work in this regard.
However,
now that S-15 is further progressing through Parliament, it is appropriate
to examine it on its own merits.
S-15
contains two significant structural flaws, each of which is unlikely to be
amendable under Commons procedural rules.
Flaw
#1
S-15 limits all programs to only those which directly address
youth-smoking.
The
limits of such an approach is well known, and has been extensively
documented. The U.S. Surgeon General's report for 2000, for example,
was focused on reviewing measures to reduce tobacco use. After
reflecting on the limitations of focusing on youth, the scientists
concluded: "a comprehensive approach - one that optimizes synergy
from applying a mix of educational, clinical, regulatory, economic and
social strategies - has emerged as the guiding principle for future
efforts to reduce tobacco use." (Reducing Tobacco Use, A Report of
the Surgeon General, 2000, p. 435.
Although
S-15 purports to be based on the CDC guidelines for "best
practices," most of these best practice elements would not be
eligible for funding under S-15. Programmes which would be
ineligible for funding include: broad-based community programs,
broad-based province-wide programs, chronic disease programs, cessation
programs for adults,
In
its summary of impact (p. 11), the Surgeon-General measures the size of
education programs, such as those fundable under S-15, as
"small", compared with the "large" impact of
comprehensive programs which are not eligible for S-15 funding.
This
flaw cannot be fixed in committee or at report stage for two reasons.
Firstly, the House traditionally cannot expand the scope of a bill.
Secondly, the bill is predicated on achieving stated goals of the tobacco
industry, and the industry has never supported comprehensive tobacco
control measures.
Flaw
#2
S-15 provides a number of statutory benefits to the tobacco companies
As
a result of the previous speaker's decision, Senator Kenny had to
transform his proposal to fund tobacco control initiatives in order to
make it procedurally acceptable. Where the 1997 legislation (S-13)
tried to disguise a public health measure as a levy for industry purposes,
the 2001 legislation (S-15) has actually transformed the levy into one
which benefits the tobacco companies. The benefits are listed in Part III
of the bill, and are attached.
This
flaw may not be amendable in committee or at report stage.
Removing industry benefits will transform the bill into a public bill -
one which is not procedurally acceptable without a Royal Warrant.
Because this bill is the first time such a manoeuver has been attempted,
however, there are no procedural rulings on which we can know with
certainty how such amendments would be received.
I
would be delighted to speak with you about this legislation.
With
best wishes,
Cynthia
Callard
Executive Director
Procedural
Concern with S-15 (Scope)
Can
these objects of S-15 be expanded to include the comprehensive set of
measures to reduce tobacco use (including cessation, protection from
second-hand smoke, industry regulation and accountability)?
Or
would such amendments be ruled out of order as they go 'beyond the scope'
of the bill?
S-15
An
Act to enable and assist the Canadian tobacco industry in attaining its
objective of preventing the use of tobacco by young persons in Canada
OBJECTS
6. The
objects of the Foundation are
(a)
to protect the health of young persons throughout Canada from the numerous
debilitating and fatal diseases and other consequences injurious to health
that are associated with tobacco use;
(b)
to protect young persons throughout Canada from inducements to use tobacco
products and to counteract such inducements;
(c)
to discourage and prevent tobacco use by young persons throughout Canada,
including children, and to fight their addiction to tobacco and dependence
on its use;
(d)
to develop a multi-year strategy to combat the use of tobacco products by
young persons and to involve young persons as much as possible in the
design and execution of any programs that are part of the strategy;
(e)
to examine existing models of best practices for tobacco control in North
America and, in consultation with recognized health organizations, to
develop a model to be applied in Canada and to review it from time to time
by comparing it with other models developed in other countries;
(f)
to monitor the use of tobacco products throughout Canada by gathering,
commissioning, sharing and publicizing statistics and, in particular,
statistics on the market share of brands and on their use by different
groups of young persons;
(g)
to gather, sponsor, commission, conduct and share research on the use of
tobacco products throughout Canada and on ways to motivate young persons
not to start using tobacco products and to cease using them;
(h)
to develop and distribute educational tools, plan and execute
communications strategies, run advertising campaigns, use the media and
disseminate information through other means to discourage and prevent the
use of tobacco products by young persons;
(i)
to hold and sponsor programs, conferences and peer and other group
activities to discourage and prevent the use of tobacco products by young
persons
(j)
to engage in and fund, at the local, regional and national levels
throughout Canada, activities of health groups and other organizations and
persons that are intended to discourage and prevent the use of tobacco
products by young persons;
(k)
to organize, promote, coordinate, participate in and support, throughout
Canada and elsewhere, financially and otherwise, all forms of activity
that assists in the protection of young persons from the use of tobacco
products;
(l)
to recommend initiatives by government, the tobacco industry and others
that could help to prevent use of tobacco products by young persons;
(m)
to receive, hold and spend the funds raised by the levy imposed by this
Act in order to attain its objects;
(n)
to receive, hold and spend gifts, legacies and grants in order to attain
its objects; and
(o)
generally, to do all such things as are conducive to the attainment of its
objects.
Procedural
Concern with S-15 (Industry Benefits)
Can
the benefits to the tobacco companies listed in S-15 be deleted?
Or
would amendments to that effect be ruled out of order as they would
transform the bill into a public bill (and therefore one requiring a royal
warrant).
S-15
An
Act to enable and assist the Canadian tobacco industry in attaining its
objective of preventing the use of tobacco by young persons in Canada
PART
III
INDUSTRY BENEFITS
34.
The benefits of this Act to the Canadian tobacco industry are declared to
include:
(a)
the declaration in law that preventing the use of tobacco products by
young persons in Canada is an industry objective;
(b)
the creation of a national program sponsored by members of the industry
and standing to its credit that the industry could not have created or co-ordinated
on its own;
(c)
official community sanction of a credible industry-funded program of the
highest priority because of the vulnerability of young persons;
(d)
access to the information gathered by the Foundation regarding the use of
tobacco products by young persons in Canada;
(e)
the containment of the sale and circulation of industry products to young
persons in an illegal and unethical market;
(f)
some mitigation of the damage to the reputation of the industry that
results from the negative effects of its business on:
1)
young persons, and
2)
on the morale of its workers;
(g)
public recognition for funding the Foundation's initiatives to address a
harmful and unethical spill-over effect of the industry's business;
(h)
the improvement in the business climate for the industry that can flow
from its enactment; and
(i)
the basis that is laid for
(i)
a greater tolerance of the industry to the extent that its products are
used in a legal market, and
(ii) reasonable limits on regulation of the industry
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