Tobacco companies' right to advertise back to Supreme Court?

A strongly worded ruling by a Quebec court that upheld the constitutionality of Canada's Tobacco Act is under attack. The legislation, which severely restricts the tobacco industry's ability to advertise and market its products, was initially opposed by 3 tobacco companies. In January all 3 filed identical notices claiming that Quebec Superior Court Judge André Denis made serious errors in his Dec. 13 decision. The case is likely headed to the Supreme Court of Canada.

“The debate pits 2 fundamental values against each other: freedom of expression versus the protection of public health,” Denis wrote. The plaintiffs argued that the Tobacco Act violates their freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. Ottawa countered that the act is part of a larger strategy to fight tobacco use. The Canadian Cancer Society, which intervened in the case, argued there is a substantial link between advertising and tobacco consumption.

Cynthia Callard, executive director of Physicians for a Smoke-Free Canada, said the decision was not only a victory over the tobacco industry but also for the way scientific evidence is considered by the court. “[Denis] upheld science.”

“Nicotine is powerfully addictive,” wrote Denis. And “there is incontrovertible evidence that advertising and sponsorship encourage people, especially adolescents, to consume tobacco products.”

Some of his findings were stinging. “The [tobacco] industry was a willing accomplice of black-market cigarette smugglers,” he wrote, adding that “it is important to look closely at how the tobacco companies have used their freedom of expression up to now and at the effects their messages have had on the health and lives of consumers.”

The Tobacco Act of 1997 has fared far better in the courts than its predecessor, the 1988 Tobacco Products Control Act. It ordered a complete ban on tobacco advertising, but was overturned by the Supreme Court in 1995. The court said the legislation went too far with its total ban. To aid future legislators, it laid out guidelines for dealing with the issue.

Myles Kirvan, senior general counsel at Health Canada, says Denis' judgement “acknowledges that Parliament has carefully followed the Supreme Court of Canada's guidance in balancing the government's priority to protect the health of Canadians and the tobacco industry's rights.”

“The government went further than allowed by the 1995 Supreme Court judgement,” retorts lawyer Gregory Bordan of Montreal-based Ogilvy, Renault, which represented Imperial Tobacco in the case. “When you look at the wording, it's [still] a total prohibition of any type of tobacco advertising. [The judge] erred. He didn't interpret [the Tobacco Act] to determine, provision by provision, whether it allowed for advertising — that's the crux of the matter.”

But is it? “It should come as no surprise that the government, as fiduciary of public health, would so doggedly pursue a comprehensive policy aimed at curbing smoking and informing Canadians about tobacco's effects,” Denis wrote. “In Canada, the health costs attributed to smoking are in the neighbourhood of $15 billion, more than the entire national budget of several countries. … [The rights of the tobacco industry] cannot be given the same legitimacy as the government's right to protect public health.” — Susan Lightstone, Ottawa