Information
December 1995
The Supreme Court of Canada ruling on the Tobacco Products Control Act
Background
The Tobacco Products Control Act (TPCA) banned the advertising and restricted the promotion of tobacco products and required packaging to display prominent health messages and toxic constituent information. As soon as TPCA was proclaimed in 1988, the tobacco companies challenged the Act as unconstitutional. In July 1991, the Quebec Superior Court ruled in favour of the tobacco companies holding that the Act was contrary to the freedom of expression protected by the Canadian Charter of Rights and Freedoms and was not within federal jurisdiction. On January 15, 1993, the Quebec Court of Appeal reversed the Superior Court decision, ruling that the Act was within Parliament's jurisdiction under the peace, order and good government power and was a reasonable limit on freedom of expression.
Supreme Court ruling
On September 21, 1995, the Supreme Court of Canada ruled that Parliament had the criminal law power to legislate the advertising and promotion of tobacco products, but was of the view that the restrictions on advertising and promotion violated the tobacco companies' freedom of expression guaranteed under subsection 2(b) of the Charter. A majority of the Court further held that the requirement to place unattributed health messages on tobacco packages infringed subsection 2(b) of the Charter.
The Court unanimously held that the purpose of the legislative measures in reducing tobacco consumption was a valid and important objective one sufficient to warrant limiting freedom of expression. All members of the Court agreed that it was not necessary that the government be able to demonstrate a direct causal link between tobacco advertising/promotion and tobacco consumption; rather, it was sufficient that a relationship between the measures and the legislative objective could be inferred based on reason, logic and common sense. In this light, the Court found that the prohibition on free distribution of tobacco products was justified.
However, the majority of the Court held that the government had failed to demonstrate that the restraints regarding advertising, promotion and labelling were reasonable and justified restrictions on freedom of expression, and consequently struck down most of the provisions of the Act. In particular, the Court held that the government had failed to demonstrate that less intrusive measures, falling short of a complete ban on advertising and promotion, would be less effective in achieving Parliament's objective of protecting the health of Canadians and, in particular, young persons from inducements to use tobacco products.
The Court recognized that the government was justified in requiring health messages on tobacco packaging, but that the government failed to show that unattributed health messages were required to achieve its objective of reducing tobacco consumption. In the context of a total advertising ban, the Court held as well that there was no rational connection between prohibiting a tobacco product trademark on a non-tobacco product and the objective of the TPCA, and therefore struck down section 8 on this basis. The Court also struck down the provisions restricting retail displays (s. 5) and sponsorship activities (s. 6), stating that they could not be clearly severed from sections 4, 8 and 9 (respectively dealing with advertising, trade marks on non-tobacco goods and labelling), although the Justices did not address the retail and sponsorship issue specifically in their reasoning.
In describing why certain aspects of the law were considered overly intrusive, the Court referred to the fact that the ban on advertising also prohibited "purely informational advertising, simple reminders of package appearance, advertising for new brands and advertising showing the relative tar content of different brands." All these outcomes, the Court argued, deprived consumers of "an important means of learning about product availability to suit their preferences and to compare brand content with an aim to reducing the risk to their health".
The Government's options
The ruling of the Supreme Court of Canada leaves the door open for alternative control measures, including a complete ban on advertising. The Court suggested a number of alternative approaches which would have infringed freedom of expression to a lesser degree. In particular, the Court mentioned such options as a partial ban on advertising, which would allow some form of product information and brand advertising; a ban on lifestyle advertising only; measures to prohibit advertising aimed at children and adolescents; and health-related labelling requirements, including attribution of warning messages. Any of these measures, the Court held, "would be a reasonable impairment of the right to free expression, given the important objective and the legislative context."
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