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Tobacco-Ad Controls OK

Cigarette Firms Lose Court Challenge. Appeal Expected, But Ruling Opens Door To Even Tougher Restrictions On Products

Nov 14, 2002 | The Gazette

The rotting teeth and other graphic warnings on cigarette packages are here to stay and a court's ruling that the government may restrict tobacco promotion could lead to even tougher regulations.

In what the Canadian Cancer Society called "a massive victory for public health," Quebec Superior Court Justice André Denis yesterday dismissed a lawsuit by Canada's big three tobacco companies - JTI-Macdonald Corp., Rothmans, Benson & Hedges Inc. and Imperial Tobacco Canada Ltd.that said the warnings violated their right to free speech and sought to have the government's Tobacco Act struck down as unconstitutional.

Denis ruled that "tobacco companies have a right to produce and sell cigarettes," but concluded: "Their rights, however, cannot be given the same legitimacy as the government's duty to protect public health."

His ruling says cigarettes kill 45,000 Canadians each year, more than the population of Drummondville or Prince Albert, Sask., and that "there is incontrovertible evidence that advertising and sponsorship encourages people, especially adolescents, to consume tobacco products."

Rob Cunningham, lawyer for the Canadian Cancer Society, which acted as an intervenor in the case, said the judgment "opens the door for the government to advance to the next steps: to adopt promotion regulations under the Tobacco Act to eliminate nationwide the prominent retail displays."

"Further, the government can move ahead with regulations to eliminate deceptive packaging, such as the use of the terms 'light' and 'mild,' " said Cunningham, who acted as spokesman for the winning side. "I expect them (the manufacturers) to appeal, I expect them to fail on appeal."

Don McCarty, vice-president (legal) of Imperial Tobacco and spokesman for the manufacturers, said the tobacco companies have two options, to appeal or "to sit down and negotiate a reasonable framework for regulation. Tobacco manufacturers in Canada believe that tobacco needs to be regulated. We need regulations that are reasonable and, principally, what is important, is that we don't spend the next 16 years, as we've spent the last 16 years, in court in litigation on these issues."

As for restricting the use of the terms "light" and "mild," something the government has been talking about for years,

McCarty said: "Clearly, I don't believe that further regulations on these issues are necessary."

McCarty said his legal team argued the law is so restrictive that it effectively imposes a total ban on advertising. The judge rejected that argument, which could be one basis for an eventual appeal, he said.

In his conclusions, Denis writes the testimony of Dr. Nancy-Michelle Robitaille was especially troubling. She described how smokers die, on average, 15 years earlier than non-smokers and have a dramatically lower quality of life. In particular he cited her story of one patient who begged her to disconnect his heart monitor so he could go for a smoke, as a clear sign "that the fight to curb smoking is not a witch hunt; rather it is a struggle against a very real social problem."

The suit was filed in Quebec Superior Court because Imperial Tobacco, which has 70 per cent of the market share among the companies, is based here.

13 Years' War

1988 - Parliament passes Tobacco Products Control Act that bans smoking advertising in print, on radio and TV, and says billboards and store signs must be phased out.

1991 - Tobacco companies successfully challenge the law in Quebec Superior Court.

1993 - Quebec Court of Appeal overturns Superior Court ruling in a split decision.

1995 - Supreme Court of Canada, in a split decision, overturns the appeal, declaring the law unconstitutional.

1997 - Parliament passes Tobacco Act that bans ads on radio, television, bus panels, street kiosks, store displays, bans vending machines in certain areas, and orders phasing out of tobacco sponsorship of public events.

1997 - Tobacco companies JTI-Macdonald Corp., Rothmans, Benson & Hedges Inc. and Imperial Tobacco Canada Ltd. ask Superior Court to declare the act unconstitutional.

2000 (December) - Cigarette packages printed in Canada are required to have warnings taking up a greater portion of the package.

2002 (January) - Superior Court begins hearing the tobacco companies' challenge.

2002 (December) - Justice André Denis dismisses the tobacco companies' suit.

2003 (October) - The ban on tobacco sponsorship of public events is to come into force.

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