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
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 — policy decisions that may guarantee tobacco companies’ 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 — 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’s public health treaty (the Framework Convention for Tobacco Control), Canada is required to ban all tobacco advertising — 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’s 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’s vague nature and contradictions. The Act defines promotion — which effectively includes both advertising and sponsorship — as material that is “likely to create an erroneous impression.” 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 — 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 “life style” ads.
The Tobacco Act only precludes so-called “life style” advertisements, namely advertising that “associates 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,” 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 — a definition and prohibition of promotion. With this change, the function of tobacco advertising must and will change, although it won’t 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 “informational.” As such, the court decision makes it easier for tobacco 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 “factual” 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 — using identifiable brand elements of a company but not cigarettes themselves — 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 — and most experts agree that it will be — 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 — 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, — and the Supreme Court of Canada, in a decision on Sept. 29, 2005 — these early initiatives have paid off.
Because BC’s 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’s decision is based on deliberation that misleading or deceptive advertising, prohibited by the BC legislation, can have adverse effects —namely, smoking and cancer.
According to Health Canada, the BC and Quebec cases cannot be officially compared — 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’s 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 “mild” cigarettes, but is packaging a form of advertising? The Tobacco Act, as it stands, prohibits “. . . packaging that is false, misleading or deceptive” — and it was successfully argued in the BC case that “mild” or “light” cigarettes fulfil this criteria.
In the Quebec case, however, it was unanimously decided that it is too vague to prevent tobacco companies from “creating an erroneous impression” 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 — 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 — from lifestyle ads, to sponsorship and the current focus on retail promotions — has resulted in the unspoken acceptance of the current covert advertising. For example, “Definiti” ads promote nightlife sponsored by Imperial Tobacco, Inc., but do so indirectly — 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 — 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 “very clearly” permits some forms of tobacco advertising.
“The Tobacco Act is very liberal in what it allows tobacco companies to do,” she said. “In fact, they could be advertising in [most] newspapers right now.”
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’s provisions for advertising, it could potentially discredit the constitutional challenge to the Act — 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 — thereby preventing an outright ban on tobacco advertising.
“Conventional advertising and sponsorship serve the same purpose for tobacco companies,” according to the 2002 Quebec Superior Court decision. That purpose? To entice new smokers and encourage occasional ones.
“Tobacco 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,” 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’t be discounted — particularly 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’s concern with the more subtle cigarette ads geared to ‘savvy’ 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?
“It’s one thing to stay neutral, it’s another thing to actually take money to market it to students,” said Hammond.
“We definitely know that things like having those retail displays increases smoking, and tobacco sales, in the same way we know advertising works — there is a reason why the tobacco industry is spending money to do this. They don’t spend $100 million per year because they like doing it, they do it because it works,” said Hammond.
He compared the prevalence of tobacco sponsorship and promotional materials to chocolate bars in a retail display: “We know that people buy more of those products when they’re presented in that manner.”
Hammond’s 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 — something not even touched by the Tobacco Act. He describes implicit advertising as a “critical public relations campaign” for the tobacco industry — 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 — including the student press.
Dinn, from Campus Plus — a subsidiary of the Canadian University Press and the agency that books national ads for the Manitoban and other student newspapers — 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 “wishy-washy” 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 — raising larger questions, pertinent to each individual publication, about whether the public health or the right to self-expression is paramount. However, student newspapers — like universities and student unions — are not well 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’s 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.
“Maybe they don’t really want to tell consumers the truth about tobacco,” said Collishaw.
But the Tobacco Act, for all its faults, has thus far been able to prevent tobacco advertising in most publications — arguably a good thing. It has relegated tobacco advertising to a “bad word” status, and something that no self-respecting publication would dare publish.
“The question is this: would it be constitutionally valid to enact a comprehensive ban on tobacco advertising?” asked Collishaw.
Not only does he say that it is valid, moreover, it’s 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.
“[The Tobacco Act] really isn’t sufficient, we really need a clear answer from the government and the Supreme Court,” concluded Collishaw.
