Tobacco companies say regulations are unconstitutional

Canada's three largest tobacco companies have begun a legal fight to defeat the country's tobacco act and regulations, which the World Health Organization says are being used as a model in some 40 other countries worldwide.

The companies, JTI-Macdonald, Imperial Tobacco Canada, and Rothmans, Benson and Hedges, asked the Quebec Superior Court in Montreal to declare unconstitutional the 1997 Tobacco Act and two subsequent regulations, saying that they violated the companies' right to freedom of expression under Canada's Charter of Rights and Freedoms.

The legislation bans tobacco advertising on broadcasts, billboards, street kiosks, bus panels, and shop displays and imposes restrictions on promotion in mailings and magazines. It also forces companies to display on cigarette packages health warnings that include graphic photos of diseased mouths, lungs, and other organs. A complete ban on tobacco companies' sponsorship of sporting and other events will come into effect in 2003.

In opening arguments at the trial, which is expected to last until late this year, Simon Potter, a lawyer engaged by the tobacco companies, said the tobacco act amounts to an effective ban on advertising, which the Supreme Court of Canada said in 1995 was not justified.

“This law has a paralysing effect,” he said. “There is a guaranteed right to expression, even commercial expression.”

Maurice Regnier, a lawyer for the federal government, countered that the tobacco companies remain free to advertise, as long as they do not associate smoking with an attractive lifestyle and do not target young people. Contradicting Potter's contention that the mandatory graphic warnings are an unreasonable limit on the companies' free expression, Regnier claimed that the warnings were reasonable, given smoking's effects on public health. Six million Canadians are addicted to tobacco, he said.

The government's written summary of its opening argument called tobacco “a drug, which just like cocaine and heroin creates a strong addiction and which will kill one out of every two smokers.”

Allan Rock, who until Monday last week was health minister but was then appointed industry minister in a cabinet shake up, said he was optimistic that the federal law would survive the legal challenge.

Garfield Mahood, executive director of the Non-Smokers' Rights Association, said the tobacco companies were fighting the legislation hard, because Canada's act was popular with other countries in which potential tobacco sales are far greater than Canada's. Sales in Canada amounted to only 1% of the worldwide total.

Ryan Baker, a spokesperson for the Canadian federal health department, said the government will operate an internet site to provide updates on the trial, through a link to the health department's site at www.hc-sc.gc.ca