Top court upholds tobacco ad laws

by CBC — June 28, 2007

The Supreme Court of Canada has upheld the act restricting tobacco companies from advertising their products, ruling the measures were a "reasonable restriction" justified by the charter.

The Supreme Court of Canada upheld on Thursday the laws restricting tobacco companies from advertising their products, dismissing the companies' argument that the laws violate their right to freedom of expression.

Cigarette companies argue that the restriction prohibiting ads which can be 'construed' as appealing to youths is an impossible standard to follow.
(CBC)

In a 9-0 judgment, the court ruled the 1997 law, and the detailed regulations that go along with it, were a "reasonable restriction" that can be justified under the Charter of Rights and Freedoms. 

The decision follows hearings in Ottawa in February, when Imperial Tobacco Canada, JTI-Macdonald, and Rothmans, Benson & Hedges argued that they have the constitutional right to advertise, but the laws are so restrictive that they essentially amount to a complete ban.

The Tobacco Act, which came into effect in 1997, bans tobacco sponsorship, restricts the way cigarettes are advertised and requires large warnings on packages.

Rob Cunningham, a lawyer for the Canadian Cancer Society, one of the interveners in the Supreme Court case, said Canada's legislation is weak compared to countries such as Australia that ban  tobacco advertising outright.

"We’re dealing with a tobacco epidemic," Cunningham told CBC News on Thursday.

"The tobacco companies aren't going to spend millions of dollars on legal fees if there isn't a business reason to do so … They hope to invalidate this law and we trying very hard to stop it."

The manufacturers say they accept some prohibitions on promoting their product, including advertising aimed at youth. But they also say they should be allowed some freedom to advertise to adult smokers, since cigarettes are legal to sell.

"We should not be banning advertising for a product which you and I can buy," Simon Potter, a lawyer for Imperial Tobacco, told CBC News on Thursday.

"There should be some window of some kind for communication between manufacturers and legitimate consumers."

Law allows ads in some publications, direct mail

The case made it to the top court after a Quebec Superior Court judge upheld the act entirely in 2002, and the Quebec Court of Appeal ruled three years later that it's unfair to bar tobacco companies from exhibiting names in sponsored events.

However, the three Appeal Court judges said specific brand names cannot be used in such events.

The federal government has maintained the existing law is clear and justifiable due to the dangers of smoking. Other interveners in the top court case are the attorneys general of New Brunswick, Manitoba, Saskatchewan, Quebec, Ontario and British Columbia.

The Tobacco Act now stipulates that tennis tournaments and car races can no longer be associated with a company marketing cigarettes.

Larger graphic warning labels on cigarettes packages are also required. Labels now have to occupy half the area of the fronts and backs of packages.

And while cigarette companies are allowed to advertise in adult-only locations, they cannot create ads that can be "construed" as appealing to youths — a standard manufacturers say is impossible to follow.

The law does allow brand advertising in places prohibited to young people. It also allows advertising in some publications and through direct mail.

The Supreme Court of Canada has upheld the act restricting tobacco companies from advertising their products, ruling the measures were a "reasonable restriction" justified by the charter.

Source:CBC top stories