Tobacco Advertising Ban Unconstitutional
Canada's tobacco industry could be forgiven a gloat, even two. In February, 1994, after years of raising tobacco taxes at every opportunity, the federal government reversed course and slashed them by $5 a carton, a controversial but ultimately successful measure to curb cross-border cigarette smuggling. And last week, there was more good news for an industry that had become habituated to setbacks. In a controversial ruling, the Supreme Court of Canada decreed that the 1988 Tobacco Products Control Act - widely viewed as a benchmark in the worldwide battle against smoking - was unconstitutional on the grounds that it imposed intolerable limits on free speech. Fearing a public outcry, the country's cigarette manufacturers were quick to say they would not immediately flood the country with advertising. But there was no disguising their pleasure and satisfaction. "Of course, we were really excited," said Mary Trudelle, director of public affairs for Toronto-based RJR-Macdonald Inc. "But people were quite sedate. There were no champagne corks popping. We just stuck with coffee and Coke." And those who smoke, smoked, naturally enough. "I think cigar smokers in the industry might have lit up a cigar," said Robert Parker, president of the Canadian Tobacco Manufacturers' Council.
The Supreme Court decision came by the narrowest of margins, five to four, and followed a marathon court battle that stretched out over seven years and 21 days. The case pitted two of Canada's three big cigarette companies - RJR-MacDonald and Imperial Tobacco - against the federal, Quebec and Ontario governments, as well as the Canadian Cancer Society and a long list of other health groups. It was a ruling that left anti-smoking lobbyists sputtering, Health Minister Diane Marleau surprised, and Ottawa's tobacco policy in tatters. But for those who have been watching recent court rulings closely, the victory for the cigarette companies was not completely unexpected. It follows a similar triumph by distillers on June 13 in the Federal Court, which struck down a prohibition against television advertising of hard liquor. In both cases, the courts ruled that the section of the Charter of Rights protecting free speech covers commercial messages as well as political and social discourse.
But although the Supreme Court decision means the tobacco law is now dead and buried, the tobacco companies said they would continue to act as though it was still in effect. That undertaking will last while the industry consults with Marleau and her officials, Parker told a news conference. In fact, the promise was made three days before the decision came down, in a letter to Marleau from Parker. "The industry will continue," the letter said, "to comply with the current legislation, pending study of the decision and consultation with you and your officials." Parker downplayed the fears expressed by some anti-smoking advocates that school playgrounds would now be surrounded by billboards with tobacco ads. "Is it going to change the landscape? No, I don't think so." And he acknowledged that the industry is not about to use the ruling to push the government to remove many of the restrictions that the companies face. "The right we've been fighting for is not the right to advertise with no restrictions whatever," he said.
The law, a legacy of the former Conservative government, had banned all forms of advertising and forced companies to print stark and unattributed warnings on cigarette packages. The warnings will not disappear, but they will almost certainly gain some attribution to indicate government authorship. (The industry complains that the current wording implies that the companies themselves are telling people not to smoke.) The industry may also accept some sort of prohibition on television advertising, Parker predicted, noting that the tobacco companies themselves had voluntarily pulled their TV ads in 1972. "I'd be very surprised to see it return," he said. At RJR-MacDonald, Trudelle echoed a similar view. "It's not true that we will be on TV and advertising everywhere just because the ban has been overturned," she told Maclean's. "We want to reassure the public that we are not going to take this right to advertise lightly."
On the contrary, the cigarette companies may well be in the process of losing a war that started in earnest in 31 years ago when U.S. Surgeon General Luther Terry and the American Medical Association drew a firm link between smoking and lung cancer. And while the industry has long been famous for denying any such health risks, even Parker now concedes them. "There's lots of information out there, thousands of studies, that demonstrate the risks to health that are associated with smoking," he said, adding that he himself is an "occasional" smoker who has tried several times to quit. In the United States, where the tobacco industry is well-entrenched and politically powerful, President Bill Clinton has announced a range of anti-cigarette measures, and the Food and Drug Administration is considering a declaration that nicotine in tobacco is an addictive drug.
In short, public opinion has changed and the industry acknowledges that it must now avoid wholesale promotion of a product that many people consider unacceptable. Peter Swain, president of Media Buying Services in Toronto, said he does not expect an "avalanche of advertising" from the tobacco companies. "They'd have to be brain dead to thumb their noses at public opinion and the government." Some health groups, while disappointed with the ruling, share the view that the companies are unlikely to go on an advertising binge for fear of a public backlash. "It's going to be very hard to go back," said Ken Kyle, director of public issues for the Canadian Cancer Society. "We're not used to seeing billboards in our face with cigarette packs on them."
Despite the ruling, the government will not back down from its aim to get Canadians to quit smoking or never start. More than 40,000 Canadians a year die as a direct result of tobacco use and the government is "going to do everything we can to stop it," said Marleau, who noted approvingly that the court upheld the federal government's power to control tobacco products. But Marleau admitted in a statement that the ruling was a disappointment. It may also finish off her controversial plans to make tobacco companies put cigarettes in plain packages stripped of trademarks and marketing adornments.
Inside the Commons and out, Liberal and opposition MPs told Marleau that her tobacco strategy is badly in need of repair. "What is left of the minister's anti-smoking policy?" chided Bloc Québécois MP Michel Daviault. Even Winnipeg Liberal MP Rey Pagtakhan, a medical doctor, admitted that the decision poses a dilemma for Ottawa. He proposed that the government could reintroduce the law but use the notwithstanding clause of the Charter of Rights to shelter it from court challenges. While Marleau did not directly rule out that idea, she suggested that its first-time use by the federal government to avoid the charter would be unlikely. "The charter is a statute of the federal government. I think we'll have to leave that be for now."
The Supreme Court did give the government some broad hints about what legislation might pass constitutional muster. Health warnings, with attribution, "can and should be placed" on cigarette packages, Justice Frank Iacobucci wrote. And there were strong indications that the court might uphold bans on promotions directed at adolescents and on so-called lifestyle ads, in which the focus is generally on attractive young people rather the product itself. The problem, Iacobucci and other judges wrote in the majority decision, was the "total and absolute ban on advertising without a justifiable basis for it."
In fact, in its small print, the decision suggests that it may well be possible for Ottawa to craft tough legislation against the tobacco industry that would be charter-proof. The court majority said it had no problem with the federal government's desire to treat tobacco promotion and advertising as a "valid exercise of the criminal law power." The court also described tobacco's effects as "evil" and noted that the "detrimental health effects caused by tobacco consumption" had been "clearly demonstrated" during the case. The ruling was not based on health considerations but on the court's expressed reticence to let the state override constitutional rights. The fault with the legislation was that the government never proved that less draconian measures might have served the same purpose. "Several less intrusive alternative measures would have been a reasonable impairment of the right to free expression," Justice Beverley McLachlin wrote.
Anti-smoking activists said the judgment could actually force the government to get tougher with the industry, perhaps by including tobacco products under the Hazardous Products Act. Said Eric LeGresley, counsel for the Non-Smokers' Rights Association: "This decision says that if you have a problem with the product, deal with the product, not the advertising." The tobacco wars, it seems, are far from over.
Maclean's October 2, 1995