[Intl-tobacco] Canada: Analysis of industry challenge to ad ban

[robert weissman]

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p://umanitoba.ca/manitoban/2005-2006/1102/1118.free.speech.for.the.tobacco.=
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Free speech for the tobacco industry
A Quebec court decision has brought up a complicated question: Do
tobacco companies have rights too?
Tessa Vanderhart, Staff

November 3, 2005

Not all forms of tobacco advertising are created equal. In fact,
contrary to popular belief, some forms of tobacco advertising are
entirely and explicitly legal. Nonetheless, tobacco companies do not
widely advertise in Canada; they are silently waiting for the resolution
of bylaws at the provincial and national level =97 policy decisions that
may guarantee tobacco companies=92 rights to advertise on the basis of
free speech.

Tobacco advertising has been legally regulated since 1988, when the
Tobacco Products Control Act was instituted to prevent direct,
intentionally misleading tobacco advertising. This law was easy to get
around. It failed to effectively distinguish between advertising and
sponsorship, and sponsorship ad campaigns bloomed. Tobacco companies
supported everything from Formula One races to the arts =97 as well as
universities and university student unions.

The original law was struck down in 1995, because the government could
not prove that a total ban on advertising was necessary to its public
health prerogative. In 1997, the Tobacco Act came into effect.
Currently, most tobacco marketing in Canada falls under the scope of the
Tobacco Act, which was designed to account for the sponsorship loophole
and is considered to be absolutely necessary by the federal government,
anti-tobacco groups and the industry alike. Nevertheless, it is replete
with contradictions and constantly challenged by court appeals.

As a signatory to the World Health Organization=92s public health treaty
(the Framework Convention for Tobacco Control), Canada is required to
ban all tobacco advertising =97 provided that it is constitutionally
possible. It has generally been assumed that it is within the realm of
the constitution to ban all tobacco advertising, yet one recent court
decision is reopening the debate around public health interests and the
tobacco industry=92s possible right to free speech.
Tobacco Act and you

On August 22, the tobacco companies finally won a court decision at the
Quebec Court of Appeal. The appeal was based on the claim that the
Tobacco Act is unconstitutional, in that it violates the Charter right
to free speech.

The tobacco industry supported its case by pointing to the law=92s vague
nature and contradictions. The Act defines promotion =97 which effectively
includes both advertising and sponsorship =97 as material that is =93likely
to create an erroneous impression.=94 This is important: by striking down
this vague and subjective definition of promotion, the QCA decision
provided the tobacco industry with the ability to advertise. It ended
concerns over free speech and clear language, thereby providing a
framework to advertise freely again =97 provided the Supreme Court does
not immediately reclaim this newly recovered freedom for the Act.

And what is known about the Act is as vague as the legal language it is
written in. Unknown to most, the Tobacco Act does not explicitly
prohibit tobacco companies from advertising in most print media; what it
really does is attempt, albeit in vain, to render sponsorship ads
impracticable. The guidelines for what is acceptable are fairly simple:
no appealing to minors, or the otherwise easily-duped, through the
once-rampant and forever infamous =93life style=94 ads.

The Tobacco Act only precludes so-called =93life style=94 advertisements,
namely advertising that =93associates a product with, or evokes a positive
or negative emotion about or image of, a way of life such as one that
includes glamour, recreation, excitement, vitality, risk or daring,=94 in
addition to ads that could be construed to intentionally appeal to young
people.

The most important part of the Quebec court decision was the
striking-down of sections 18.2 and 19 =97 a definition and prohibition of
promotion. With this change, the function of tobacco advertising must
and will change, although it won=92t necessarily become any more clear.
The prohibition against industry-sponsored science being used in
promotion has been removed, meaning that research funded by the tobacco
industry can be used in advertising that is specifically
=93informational.=94 As such, the court decision makes it easier for tobacc=
o
advertisers to use informational advertising to their benefit.

Information advertising, in this case, includes display signs intended
to lure customers into a store by notifying them that they can purchase
cigarettes. Legally, it includes ads that detail =93factual=94 information
on the product, its characteristics, availability or price.

Brand preference advertising is even more contentious. When the Tobacco
Act first came into force, there was debate over how this type of
advertising could be accomplished in conjunction with the spread of
sponsorship.

Chris Dinn, from the Campus Plus ad agency, noted that all possibilities
of exploiting this were considered in 2003, including the legality of
publishing just a red box to signify DuMaurier. He added that lawyers
dismissed all these proposals.

In essence, brand preference advertising =97 using identifiable brand
elements of a company but not cigarettes themselves =97 is legal, but only
under certain provisions. Distinctive shapes or colours can only be
present in the bottom 10 per cent of an advertisement. The Quebec Court
of Appeal decision, in removing the sponsorship prohibitions, may have
changed this policy.

When the Quebec Court of Appeal decision is appealed at the Supreme
Court =97 and most experts agree that it will be =97 the court will have to
reconsider both the implications of advertising on public health and
whether traditional advertising is a constitutional right. This is not a
simple task, particularly in light of contradictory policies at the
provincial level.
The BC example

Across the country, an average of 20 per cent of people smoke =97 except
in British Columbia, where only 15 per cent smoke despite the lack of a
provincial ban on smoking in public places. Dr. Neil Collishaw, the
research director for Physicians for a Smoke-Free Canada attributes this
phenomenon to policy foresight. Before the federal restrictions on
advertising and promotion came into place, Vancouver and Victoria set up
bans, and provincial tobacco advertising guidelines were established.
And, according to Collishaw, =97 and the Supreme Court of Canada, in a
decision on Sept. 29, 2005 =97 these early initiatives have paid off.

Because BC=92s Tobacco Damages and Health Care Recovery Costs Act was
sustained by the Supreme Court, tobacco companies are now liable to be
sued for healthcare costs. The court=92s decision is based on deliberation
that misleading or deceptive advertising, prohibited by the BC
legislation, can have adverse effects =97namely, smoking and cancer.

According to Health Canada, the BC and Quebec cases cannot be officially
compared =97 the BC lawsuit regarded costs, while the Quebec appeal
pursues sponsorship, but both take into consideration the relationship
between advertising and tobacco consumption. The BC decision showed that
the Supreme Court is prepared to take a strong position on misleading
advertising whereas the Quebec decision put free speech over public health.

The current incarnation of the Tobacco Act upholds the BC Tobacco
Damages Act, yet its provisions are in direct opposition to the changes
made to the Act in the Quebec Court of Appeals decision. The resolution
of these contradictory policies at the Supreme Court will set legal
precedent at the national level.
Advertising lite

Despite the industry=92s claims of free speech infringements, some claim
that companies continue to advertise in subtle ways, with varying
degrees of success.

The Canadian Tobacco Use Monitoring Study (CTUMS), an annual study of
Canadians aged 15-24 that examines smoking trends, reports that 59 per
cent of smokers choose the blithely-packaged =93mild=94 cigarettes, but is
packaging a form of advertising? The Tobacco Act, as it stands,
prohibits =93. . . packaging that is false, misleading or deceptive=94 =97 =
and
it was successfully argued in the BC case that =93mild=94 or =93light=94
cigarettes fulfil this criteria.

In the Quebec case, however, it was unanimously decided that it is too
vague to prevent tobacco companies from =93creating an erroneous
impression=94 in their packaging about the health effects of smoking.
After all, it is fairly evident that smoking is harmful to health and
cigarettes are only purchased by consenting adults =97 so goes the logic.

Tim Dewhirst, a marketing professor at the University of Saskatchewan,
suggests that allowing these terms to stay in the lexicon of sales
rather than in advertising reduces the effectiveness of the Act. He
wants to see the legality of these terms revisited, given that they are
not only promotional but also downright misleading. The shifting tactics
of the tobacco industry =97 from lifestyle ads, to sponsorship and the
current focus on retail promotions =97 has resulted in the unspoken
acceptance of the current covert advertising. For example, =93Definiti=94
ads promote nightlife sponsored by Imperial Tobacco, Inc., but do so
indirectly =97 there is no mention of cigarettes anywhere in the ads,
despite their source and intent. But this campaign has been far from
effective, as Imperial has been hemorrhaging money and recently
announced the closure of several factories in Ontario.

This could dramatically change with the Quebec Court of Appeal decision
=97 cultural events can, once again, directly include the names of
corporate sponsors, though not brand names.

The law has not traditionally been interpreted in a way that would allow
for sponsorship advertising, according to Dr. Anne Lavack, a researcher
into tobacco advertising, director of the Kenneth Levene Graduate School
of Business and associate dean of the faculty of business administration
at the University of Regina. She insists that it =93very clearly=94 permits
some forms of tobacco advertising.

=93The Tobacco Act is very liberal in what it allows tobacco companies to
do,=94 she said. =93In fact, they could be advertising in [most] newspapers
right now.=94

So why does Big Tobacco not capitalize on this?

While the case makes its way to the Supreme Court of Canada, tobacco
companies are relatively silent. The sheer abundance of loopholes in the
Tobacco Act could easily provide any creative marketer with many years
of successful advertising campaigns. But if tobacco companies were to
take advantage of the Act=92s provisions for advertising, it could
potentially discredit the constitutional challenge to the Act =97 the main
dispute that it limits the free speech of the tobacco companies; as long
as they remain silent, it effectively does.

The industry obviously has an enormous stake in guaranteeing their
access to consumers through advertising. Lavack sees the changing
legislation as an indirect method of keeping unofficial tobacco
advertising campaigns fresh and new; the shift from one medium of
advertising to another means that whatever company can most effectively
adapt to the new laws will gain in market share. Inarticulate laws are
easy to appeal, making them easy targets for lawyers who can reset the
precedent again and again =97 thereby preventing an outright ban on
tobacco advertising.

=93Conventional advertising and sponsorship serve the same purpose for
tobacco companies,=94 according to the 2002 Quebec Superior Court
decision. That purpose? To entice new smokers and encourage occasional ones=
.

=93Tobacco companies recognize that advertising is essential to
maintaining the size of the market, because it reinforces the social
acceptability of tobacco use by identifying it with glamour, affluence,
youthfulness and vitality,=94 the Court said in its ruling.
Students keep on puffing

Dr. D. Hammond, a researcher at the University of Waterloo, said that
the importance of tobacco advertising can=92t be discounted =97 particularl=
y
the advertising you may not be so aware of. Implicitly, he said, this
may be a big factor in the smoking culture of universities.

Now, two years after the ban on advertising took effect on October 1,
2003, about five million Canadians are still puffing away, with students
accounting for more smokers than any other group in Canada.

Hammond emphasized advertising as a key reason for occasional smokers to
develop long-term smoking habits while at university. And although
tobacco use continues to decline overall, the number of post-secondary
student smokers has leveled off, especially in comparison to other age
groups.

All of this data may explain Hammond=92s concern with the more subtle
cigarette ads geared to =91savvy=92 university students, and the underlying
hypocrisy of student unions accepting money from tobacco sales.

He noted that many universities have accepted donations from tobacco
companies in the past, and some continue to do so. Moreover, many
student unions have deals with tobacco companies to sell cigarettes to
students, posing deep questions about where exactly people stand on
issues of free speech for the tobacco industry. If these sponsorships
are co-operative partnerships, why they kept so secret?

=93It=92s one thing to stay neutral, it=92s another thing to actually take
money to market it to students,=94 said Hammond.

=93We definitely know that things like having those retail displays
increases smoking, and tobacco sales, in the same way we know
advertising works =97 there is a reason why the tobacco industry is
spending money to do this. They don=92t spend $100 million per year
because they like doing it, they do it because it works,=94 said Hammond.

He compared the prevalence of tobacco sponsorship and promotional
materials to chocolate bars in a retail display: =93We know that people
buy more of those products when they=92re presented in that manner.=94

Hammond=92s research, suggests that universities are generally more
tobacco-friendly than not, with few explicit prohibitions against
smoking, and some implicit concessions to the tobacco industry =97
something not even touched by the Tobacco Act. He describes implicit
advertising as a =93critical public relations campaign=94 for the tobacco
industry =97 the implied acceptance that this is okay sends a message to
students, one that is more effective than any ad.
Insert ad here

Until 2003, many publications relied heavily on tobacco advertising =97
including the student press.

Dinn, from Campus Plus =97 a subsidiary of the Canadian University Press
and the agency that books national ads for the Manitoban and other
student newspapers =97 said that most student newspapers took quite a hit
when the legislation came into place. Campus Plus has not actively
solicited ads from tobacco companies since the legislation came into
place, and would not accept ads if offered because of the =93wishy-washy=94
legal limbo in which tobacco advertising is embroiled.

Several student newspapers have already prohibited tobacco advertising,
and continue to do so as part of their ad policy =97 raising larger
questions, pertinent to each individual publication, about whether the
public health or the right to self-expression is paramount. However,
student newspapers =97 like universities and student unions =97 are not wel=
l
funded, and any source of cash is generally seen as positive, even if it
comes from the hands of Big Tobacco.

The pages of the Manitoban included cigarette advertisements not too
long ago. In fact, it last published a Benson & Hedges concert series ad
on Sept. 17, 2003, only two weeks before the Tobacco Act fully came into
effect.

For this reason alone, the Tobacco Act has enormous implications: the
future of advertising policy in Canada now sits on the constitutionality
of its loopholes, which the federal government has sworn to uphold,
given the Health Minister=92s adamant stance that the Act must stand as a
whole document.

Then there are the tobacco companies: Lavack questions their motives;
Dr. Hammond condemns them.

Physicians for a Smoke-Free Canada, along with other health groups that
have been involved in the litigation, are even more succinct.

=93Maybe they don=92t really want to tell consumers the truth about
tobacco,=94 said Collishaw.

But the Tobacco Act, for all its faults, has thus far been able to
prevent tobacco advertising in most publications =97 arguably a good
thing. It has relegated tobacco advertising to a =93bad word=94 status, and
something that no self-respecting publication would dare publish.

=93The question is this: would it be constitutionally valid to enact a
comprehensive ban on tobacco advertising?=94 asked Collishaw.

Not only does he say that it is valid, moreover, it=92s something that
would be supported by a majority of Canadians. Despite more research on
the subject, there is no way to conclude if the Supreme Court would feel
the same way.

=93[The Tobacco Act] really isn=92t sufficient, we really need a clear
answer from the government and the Supreme Court,=94 concluded Collishaw.