Background
In August 2001, an Expert Panel was convened by Health Canada's
Ministerial Advisory Committee to review deceptive packaging and
labelling of cigarettes. It
recommended a ban on terms, colours or other packaging
signifiers of 'light'.
“We conclude that a complete prohibition of the use of deceptive
descriptors such as ‘light’ and ‘mild’ on cigarette packaging
and marketing is necessary to ensure that past deception is
redressed and ongoing deception is prevented. In addition, in
order to prevent future deception, the regulations should also
restrict the use of other words, colours or devices that result
in an erroneous perception of a difference in health risks
and/or tar/nicotine deliveries. To be effective, these
regulations should be accompanied by a substantial education
component to correct this dangerous and persistent misperception
and by a mechanism to implement further measures if warranted.”
In December 2001, Health Canada provided
notice to the TBT Committee that
it was
"considering the development of regulations pursuant to the
Tobacco Act to prohibit the display of "light" and "mild"
descriptors on tobacco product packaging and is seeking input
from interested parties on the development of these Regulations"
On February 1, 2001, Philip Morris International provided the
Canadian government with a
response to the notice, claiming that the ban would violate
several trade agreements.
Philip Morris
believes that banning descriptive terms on tobacco packaging
would violate Canada's obligations under the North American Free
Trade Agreement ("NAFTA"), the World Trade Organization's
Agreement on Technical Barriers to Trade ("TBT") and the
Agreement on Trade Related Aspects of Intellectual Property
("TRIPS"). The descriptive terms Canada seeks to ban are
contained in lawfully-registered Canadian trademarks. Consumers
understand these trademarks to designate distinct brands of low
yield cigarettes with characteristic tastes and corresponding
tar and nicotine yields. Prohibiting the use of these
descriptive terms would effectively ban the display of
trademarks containing them. If enacted, the proposed ban would
therefore expropriate and destroy the affected trademarks and
brands in Canada as well as the substantial goodwill that
accompanies them in violation of both NAFTA and TRIPS.
No further regulatory action was taken by Canada until 2006 when
an agreement was reached by the federal government Competition
Bureau with the three multinational companies, wherein the
companies agreed to stop using the terms 'light' and 'mild.'
The following year (on August 4, 2007), the federal government again gave
notice of its intention to prohibit the use of these terms.
A third notice was given on
19 February 2011.
A more comprehensive timeline is provided below.
Chronology
|
January 1999
– Health Canada issues an official
advisory, warning consumers that “light” and “mild”
tobacco products “have the same potential to be
debilitating and lethal as other types of tobacco.”
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|
May 31, 2001 - World No
Tobacco Day. Hon. Allan Rock asks tobacco companies to
voluntarily remove "light" and "mild" terms from
cigarette packages within 100 days, and asks the
Ministerial Advisory Council on Tobacco Control to
recommend actions in the event the companies do not
comply. |
| |
|
8 September 2001 - 100 days
pass without the cigarette companies removing misleading
descriptors from their packages. |
| |
1 November 2001
– The Health Minister Allan Rock
releases the findings of the Expert Panel, which advises
that regulations under the Tobacco Act be passed
to ban the use of the descriptors.
Expert
Panel Report
|
|
1
December 2001 – Notice of
Intent published in Canada Gazette proposing ban on the
terms “light” and “mild”.
(Gazette) Deadline for public responses to notice of
intent is January 15, 2002.
21
December 2001 – Canada
notifies the TBT
Committee at WTO of its proposal to ban deceptive
descriptors.
1
February 2002 –
Philip Morris
informs government of Canada that a ban on
descriptors would be an infringement of trade
agreements, including NAFTA.
|
|
January 2002: Brazil bans use of "any
type of descriptor, on the packaging or in advertising
material, such as: classes (s), ultra low tar, low tar,
smooth, light, soft, leve, moderate tar, high or any
others that could induce consumers to an erroneous
interpretation as to the tar contained in cigarettes.”
(Brazilian regulation)
|
| |
| November
2002:
The World Health Organization Scientific Advisory
Committee on Tobacco Product Regulation recommended
a ban on all misleading health and exposure claims and
related packaging.
(SACTOB recommendations) |
| |
| December
2002: Health Canada research shows that 2 of every
3 smokers of 'light' cigarettes switched to light based
on the belief that there would be fewer health risks.
(Health Canada overview of 2001 CTUMS findings) |
| |
| December
10, 2002: The European Court of Justice rejected a
tobacco industry challenge to the EU directive banning
the terms 'light' and 'mild', 'low-tar', etc.
(Court ruling) |
| |
| December
13, 2002: The Quebec Superior Court upheld the
federal Tobacco Act against an industry claim of
unconstitutionality. The law allows the federal
government to regulate how cigarettes are labelled.
(Justice Denis' ruling) |
| |
| May 20,
2003: World Health Organization adopts text for a
global tobacco treaty, the Framework Convention on
Tobacco Control. The treaty calls for an end to all
misleading descriptors, including the use of such terms
as "low-tar" and "light."
(WHO press release) |
| |
| June 16,
2003 - Complaint filed by the Non
Smokers Rights Association with federal Competition
Bureau regarding the deceptive trade practice of
labelling cigarettes as "light" or "mild.
(NSRA Press Release)"
|
| |
|
September 30, 2003: "Low-tar"
and similar misleading terms are banned on all
cigarettes sold in the European Union.
(EU directive) |
| |
|
April 30, 2004:
Imperial Tobacco files its response to the Knight case
filed in British Columbia, arguing that it never
represented that “light” or “mild” products reduced the
risk of disease and that it was the federal government
that directed Imperial Tobacco toward “developing and
marketing lower delivery products.”
Imperial Tobacco files a “Third Party Notice,”
deflecting responsibility for liability in the Knight
case to the federal Government. If consumers were
misrepresented about “light” and “mild,” cigarettes, ITL
states “then the Federal Government breached the
standard of care in the operation of its health
programmes,” and should pay any damages awarded in this
case.
|
| |
| January
2005. NSRA leads a motion before the Federal Court
of Canada to obtain a court order to compel the
Competition bureau to rule on their complaint from June
2003. |
| |
| June 28,
2007. Supreme Court of Canada upholds Tobacco Act,
including its prohibition of promotion or packaging
"likely to create an erroneous impression." |
| |
|
November 9, 2006: The
Competition Bureau accepts a voluntary agreement with 3
major tobacco companies to phase out the terms 'light'
and 'mild.'
(Competition Bureau announcement)
|
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|
August 4, 2007.
Health Canada proposes regulations to end the use of the
terms 'light' and 'mild'. (Draft
Regulations)
February 19, 2011. Health Canada repeats its
proposal of 2007. (Draft
Regulation)
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