JTI-Macdonald: Up in Smoke

On Thursday, June 28, 2007 a significant judgment for the tobacco industry was released by the Supreme Court of Canada. Canada (Attorney General) v JTI-Macdonald Corporation, [2007] 2 SCR 610 [JTI-Macdonald], an appeal from the Court of Appeal for Quebec, considers whether the limits imposed by the Tobacco Act, SC 1997, c 13 and Tobacco Products Information Regulations, SOR/2000-272 regarding tobacco advertising unjustifiably violate tobacco manufacturers’ s. 2(b) freedom of expression rights guaranteed by the Charter.

In 1995, provisions of the Tobacco Products Control Act that effectively prohibited all advertising and promotion of tobacco products were struck down by the SCC in RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199. In response to this, the government enacted the Tobacco Act and the Tobacco Products Information Regulations, which allowed for brand-preference and information advertising, but prohibited advertising and promotion that was false, misleading or appealing to young persons. It also required tobacco manufacturers to increase the size of mandatory health warnings on packaging to 50 percent from 33 percent. Tobacco manufacturers, JTI-Macdonald Corporation, Rothmans, Benson & Hedges Inc., and Imperial Tobacco Canada Ltd. challenged this new legislation, claiming that various provisions unjustifiably limited their right to freedom of expression under s. 2(b) of the Charter.

At trial, the judge dismissed the actions of the manufacturers and found that all the challenged provisions were constitutional. The Quebec Court of Appeal upheld most of the legislation, but found some provisions unconstitutional. The Attorney General of Canada appealed this with respect to those provisions which have been found to be unconstitutional and the tobacco manufacturers cross-appealed regarding some of the provisions that were upheld as constitutional.

At the SCC, the Attorney General of Canada’s appeal was allowed and the cross-appeals of the tobacco manufacturers were dismissed. In coming to this conclusion, the SCC found that the provisions in question amounted to violations of the guarantee to free expression of the tobacco manufacturers; however, these limits are justified under the s.1 reasonable limits clause of the Charter. Specifically, ss. 18 and 19 of the Tobacco Act allow tobacco manufacturers to publish their legitimate, funded, scientific works; however, they are forbidden from paying for the inclusion of a specific brand in a commercial scientific work targeted at consumers. The ban on “false, misleading or deceptive” promotion, as well as promotion “likely to create an erroneous impression about the characteristics, health effects or health hazard of the tobacco product or its emissions” according to s. 20 of the Tobacco Act is also constitutional. Further, according to s. 22(2-4), both advertising appealing to young persons and “lifestyle advertising”, whereby a link between a tobacco product and a way of life (ie. glamour, recreation, excitement, vitality, risk, or daring) is constructed in a promotional material, are prohibited. Similar to lifestyle advertising, sponsorship advertising, where corporate names are used in sponsorship promotion and on cultural and sports facilities, is also banned according to s. 24 of the Tobacco Act. Finally, the SCC found that the stipulations in the Tobacco Products Information Regulations regulating the health warning size on tobacco packaging was also a justified infringement of s. 2(b) under s. 1.

In the case of each of these provisions, the SCC considered the goals of Parliament: to inform the public of the health risks associated with tobacco addiction and to prevent people from developing tobacco addiction. These risks and the suffering associated with tobacco addiction were found to be pressing and substantial. Further, a rational connection between the regulations and Parliament’s objectives was established, the rights were determined to have been minimally impaired, and each provision was found to meet the requirement of proportionality of effects, as the prohibition of speech was of relatively low value compared to the beneficial effects and importance of the provisions to the public. As Justice McLachlin explained:

On the one hand, the objective is of great importance, nothing less than a matter of life or death for millions of people who could be affected…. On the other hand, the expression at stake is of low value — the right to invite consumers to draw an erroneous inference as to the healthfulness of a product that, on the evidence, will almost certainly harm them. On balance, the effect of the ban is proportional (para 68).

While some may hail this judgment as a victory for anti-tobacco proponents, we may actually see an increase in the amount of tobacco advertising. With the SCC’s confirmation of the existence of a narrow window of opportunity for the promotion of tobacco, tobacco manufacturers will now seize the opportunity to advertise their products in a limited fashion, which they have refrained from doing in the past few years due to ambiguity with respect to the advertising regulations and fear of prosecution. While this decision certainly outlines the stringent limits on advertising placed on tobacco manufacturers, anti-tobacco advocates hope that this ruling sets the stage for a future comprehensive ban on tobacco advertising, considering the devastating effects of tobacco on one’s health, and the considerable costs to the health care system. While at this stage, it is impossible to predict the future of tobacco advertising, JTI-Macdonald appears to be a significant stride in the battle against the promotion of smoking.

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