Tobacco Makers Lose Bid to Overturn Canada's Ad Law

Source from:  Bloomberg 07/04/2007

British American Tobacco Plc.'s Canadian unit and other cigarette makers lost an attempt to overturn Canada's limits on advertising tobacco products and a requirement to post graphic images on cigarette packages. The Supreme Court of Canada, the country's highest court, today unanimously rejected the tobacco companies' bid to have the legislation struck because it violates freedom of speech. ``Tobacco is now irrefutably accepted as highly addictive and as imposing huge personal and social costs,'' Canada's Chief Justice Beverley McLachlin wrote on behalf of the nine members of the court. The restrictions, although they infringe Canada's constitutional right to free speech, are justifiable, she said. The tobacco companies have been fighting the advertising ban for 10 years. In 1997, the Canadian government prohibited tobacco advertising aimed at young people, promoting a lifestyle or including false or misleading statements. Cigarette makers were allowed to provide information to smokers and promote specific brands. The 1997 law replaced a total ban on advertising that the top court said was unconstitutional. ``A total ban is not on,'' Simon Potter, a lawyer with McCarthy Tetrault who represented the tobacco companies, told reporters in Ottawa following the ruling. Companies can still advertise in places frequented by adults or through direct mailings, he said. ``The companies wanted clarity.'' `Weak Law' The loopholes in the law sparked calls from anti-tobacco lobbyists for the government to impose a complete ban. ``This was a weak law,'' said Atul Kapur, an emergency-room physician who is president of Physicians for a Smoke-Free Canada. Companies refrained from advertising as a strategy to make the law look harsher than it is, he said. Canada's Health Minister Tony Clement said he was concerned by reports that cigarette makers could use loopholes in the law to promote their products. ``I have asked my staff to review whether this act is sufficient in protecting the health of Canadians, especially children and youth,'' Clement said in a statement. ``If there are loopholes, I will address them.'' The tobacco companies, which included JTI-Macdonald Corp., the Canadian unit of Japan Tobacco Inc. and Rothmans, Benson & Hedges Inc., challenged the restrictions and lost in 2003 at trial in a Quebec court. Two years later the Court of Appeal for Quebec overruled the trial judge on a part of the law prohibiting false or misleading promotion, saying the wording was too vague and ordered it removed. Struck Section The appeals panel also struck a section of the law prohibiting the publication of scientific research relating to tobacco products. The Supreme Court overruled the appeals court on both issues. ``Parliament's objective of combating the promotion of tobacco products by half-truths and by invitation to false inference constitutes a pressing and substantial objective, capable of justifying limits on the right of free expression,'' McLachlin said. The current law also prohibits tobacco companies from sponsoring events such as music festivals or car races. Cigarette packages in Canada must also display warnings, covering half the surface of the package, that show pictures of a damaged heart, a damaged lung or yellowed teeth in a bid to deter people from buying the product. The case is Attorney General of Canada v. JTI-Macdonald Corp., Case No.: 30611, Supreme Court of Canada (Ottawa).