Tobacco advertising restrictions aimed at preventing Canadians from becoming addicted to smoking are amply justified under the Charter of Rights, the Supreme Court of Canada said Thursday.
The justices were unanimous in upholding a series of controversial federal laws that were challenged by tobacco companies, which contended that their right to free expression was impinged upon.
In one of the most important freedom-of-expression cases to reach the court in many years, the justices ruled that a series of contentious bans and restrictions violate freedom of expression but are justified, given the goals of the government and the way it went about achieving them.
The law restricts the use of lifestyle advertising and corporate sponsorships, and puts a special accent on preventing tobacco advertisers from reach young people. It also required larger warnings on cigarette packages and otherwise restricted tobacco advertising.
Three companies - Imperial Tobacco Canada Ltd.; Rothmans, Benson & Hedges Inc. and JTI-Macdonald Corp - mounted a Charter of Rights challenge soon after Bill-71 took effect in 1997.
Taking the restrictions one by one on Thursday, the court found that they generally do impede the tobacco companies' freedom of expression, but that they do so in as minimal a fashion as possible under the circumstances.
It said that lifestyle advertising, for example, "crosses the line when it associates a product with a way of life or uses a lifestyle to evoke an emotion or image that may, by design or effect, lead more people to become addicted or lead people who are already addicted to increase their tobacco use," Chief Justice Beverley McLachlin wrote for the court.
Given the dangers of tobacco and the modest impairment the ban on lifestyle advertising causes, the court said, the regulations are amply justified: "The suppressed expression is of low value compared with the significant benefits in lower rates of consumption and addiction that the ban may yield."
As to regulations involving package warnings about the dangers of smoking, for example, the court said: "Regarding minimal impairment, the requirement for warning labels, including their size, falls within a range of reasonable alternatives.
"The reasonableness of the government's requirement is supported, notably, by the fact that many countries require warnings at least as large as Canada's. Finally, the benefits flowing from larger warnings are clear, while the detriments to the manufacturers' expressive interest in creative packaging are small."
On the issue of sponsorship promotion, the court said that the practice "is essentially lifestyle advertising in disguise.
"The evidence establishes that as restrictions on tobacco advertising tightened, manufacturers increasingly turned to sports and cultural sponsorship as a substitute form of lifestyle promotion," it said."
Placing a tobacco manufacturer's name on a facility is one form such sponsorship takes, and the aim of curbing such promotion justifies imposing limits on free expression.
The law permitted information and brand-preference advertising by tobacco companies, provided it does not show smoking as a favourable lifestyle choice, and provided it does not cater to attempt to appeal to youths.
"This is a very important victory for public health," said Rob Cunningham, a spokesman for the Canadian Cancer Society. "We fought for 10 years to ensure the legislation would be upheld. We are very pleased."
Mr. Cunningham said that Canadians should brace themselves for an onslaught of tobacco advertising in venues that tobacco companies have been strategically avoiding since Bill 71 came into force. He said these will include Internet websites, bars and print publications aimed predominantly at adults.
The stage is now set for the federal government to slap a total ban on all tobacco advertising, Mr. Cunningham said.
"We will be asking Health Minister Tony Clement to introduce legislation this fall to implement a total ban on tobacco advertising in Canada. We believe that the evidence which current exists and the international contest justifies a total ban under the Charter.
Almost 150 countries worldwide have signed a treaty that favours a comprehensive ban on tobacco advertising, he said, and Canada risks being left far behind if it doesn't act swiftly: "The ball is now back in Parliament's court."
The companies argued that while the ban tried to be selection, it was so broad as to constitute a total ban on tobacco advertising.
"The requirement in the Tobacco Products Information Regulations that the government's health warnings occupy at least 50 per cent of the principal display surfaces of packages infringes s.2(b) of the Charter, but the infringement is justified under s.1," the court said.
"Parliament's goal, notably to inform and remind potential purchasers of the product of the health hazards it entails, is pressing and substantial," it said.
"The evidence as to the importance and effectiveness of such warnings establishes a rational connection between Parliament's requirement for warnings and its objects of reducing the incidence of smoking and of the disease and death it causes."
The federal government, six provinces and the Canadian Cancer Society argued in support of federal legislation.
Mr. Cunningham said he now expects the tobacco industry to be advertising soon in newspapers, campus publications and other publications that have at least 85-per-cent adult readership.
He said they companies could have been doing that all along but chose - as a litigation strategy - to curtail all advertising to try to prove their point that the government's restrictions actually amount to a total ban.
Selective bans such as those contained in Bill-71 are no longer palatable in a great many developed countries, Mr. Cunningham said.
"Obviously, they are a concern," he said. "A lot has changed since 1995."
Indeed, lobbying for tougher laws is already under way. A doctor-led group, Physicians For a Smoke-Free Canada, issued a call earlier this week for a total ban on advertising.
"A decade ago, the tobacco company lawyers adopted a legal strategy of arguing that the federal law was so difficult to interpret that the effect was the same as a total ban on advertising," Dr. Atul Kapur, president of the group, said in a release.
"Had they known that it would take so long for a final court ruling, they might have taken an approach that did not prevent them from exploiting the weaknesses in the law without exposing the disingenuousness of their lawyers' claims."
Among the changes to Bill 71 since it passed were amendments that:
• Outlaw any tobacco sponsorship, including the use of a corporate name to promote an event.
• Require picture warnings to cover 50 per cent of the front and back of cigarette packages.
The history of the litigation began in 2002, when the Quebec Superior Court upheld the legislation in its entirety. Three years later, the Quebec Court of Appeal upheld most of the new law, but struck down a portion that banned tobacco sponsorships using a corporate name with no brand name. It also said the law does not apply to scientific works paid for by the tobacco industry.
According to Cancer Society statistics, 30 per cent of cancers deaths and 85 per cent of lung cancer deaths are caused by tobacco.