Tobacco advertising has returned to some newspapers and magazines in Canada, and that has the executive director of Physicians for a Smoke-Free Canada fuming. Cynthia Callard told the Georgia Straight in a phone interview from Ottawa she thinks that the federal government could persuade the Supreme Court of Canada to ban cigarette ads including those that have appeared recently in the Straight, the Canadian edition of Time magazine, and other publications. But she said she hasn’t seen any evidence that politicians have any will to take action.
“I don’t think MPs are getting called every week,” Callard commented.
Last June, the Supreme Court of Canada upheld federal tobacco legislation that allows cigarettes to be advertised in publications with 85 percent or more of their readers over the age of 18. Callard said that since last November, JT International has been advertising new brands in some weekly papers.
She alleged that the tobacco companies are establishing a “beachhead” for advertising their products. “It positions cigarettes as an acceptable good—a socially normal, okay good, just like other things that are advertised, like DVDs or movies or something,” Callard said.
She suggested that this approach is designed to get people to forget that smoking is a “crazy drug addiction that causes so much harm”. However, she emphasized that the federal or provincial government could obtain a new ban on tobacco advertising by filing a “reference case” to the Supreme Court of Canada and seeking a legal opinion. Callard said that if a government does this, it should include evidence about the effectiveness of tobacco-advertising bans in other countries.
“In our view, if the court were asked, ”˜Is a total ban now justified?’, they could well say, ”˜Yes’,” Callard said.
Health Minister Tony Clement did not return a call from the Straight to respond to Callard’s claim that he could achieve a new ban on tobacco advertising. Similarly, the B.C. health ministry did not make Health Minister George Abbott or provincial health officer Dr. Perry Kendall available for an interview to discuss this topic.
To understand how a ban on tobacco advertising could be achieved, Callard said, it’s important to recognize how the current regulatory regime came into being. She pointed out that the Conservative government led by Brian Mulroney introduced a ban on tobacco advertising in 1988. RJR-MacDonald Inc. challenged this in court. In 1995, the Supreme Court of Canada ruled that the advertising ban infringed on the corporation’s freedom of expression under the Canadian Charter of Rights and Freedoms.
Section 2(b) of the charter guarantees this, and the courts have extended this constitutional right to the corporate sector.
The Supreme Court of Canada based its decision in part on the government’s failure to demonstrate that less intrusive measures were available to legislators to achieve a similar outcome as a ban on tobacco advertising. The government responded with new legislation that banned tobacco-company sponsorships of sports and cultural events. But the government still permitted companies to advertise in publications that had 85 percent or more adults comprising the readership. Under the Tobacco Act and Tobacco Product Information Regulations, companies may also use direct mail to market their products, and advertise in bars and other locations where youths are not permitted to enter.
Callard said that the federal government didn’t impose a total advertising ban because it was already dealing with political resistance to the banning of tobacco-company sponsorships. In the 1990s, Imperial Tobacco Canada through its du Maurier brand sponsored the Vancouver International Jazz Festival, and Benson & Hedges sponsored fireworks events in Vancouver. Organizers of those events found new corporate backers after tobacco sponsorships were banned.
“I think at this point, there would be very little political objection to banning [cigarette] advertising,” Callard said. “The charter issues can be looked at devoid of any political context, but it takes a government that is willing to ask the question.”
She said that when the Supreme Court of Canada struck down the ban on tobacco advertising in 1995, it didn’t have much evidence about the effectiveness of this measure in reducing smoking rates. Since then, however, the European Union has banned tobacco advertising, and this information has not been brought before the Supreme Court of Canada. She suggested that if the court reviewed this new evidence, it could conclude that a total ban on tobacco advertisements was acceptable.
Callard also noted that in 2003 a global tobacco treaty called the Framework Convention and Tobacco Control was adopted. She said it contained measures calling for a “comprehensive ban” on tobacco advertising. Canada signed the treaty, which came into force in 2005.
“A comprehensive ban has to be in place unless a country has a constitutional impediment,” Callard said. “The position we’ve been forwarding to the government is that Canada has yet to demonstrate whether or not it has a constitutional impediment, and it has not done so yet. One of the things we’ve been pushing for is to resolve this issue either by bringing in a new law that is in fact a comprehensive ban or by referring the issue to the Supreme Court [of Canada] in the form of a reference question.”
She said that governments facing no constitutional impediment to a comprehensive ban on tobacco advertising must put this prohibition in place by 2010. The treaty also states that if there is a constitutional impediment to an advertising ban, Callard said, governments must require health-warning labels.
“At the moment, the health-warning labels that are printed on the advertisements in the Georgia Straight and other papers are put in on a voluntary basis,” she said. “The government has not even brought in a law on doing that.”
Callard said that Clement, the health minister, told her group last summer that he would ask officials to “close any loopholes” in the country’s tobacco legislation. “The challenge of trying to get a new charter opinion was discussed,” Callard added. “It wasn’t resolved.”