LEGISLATION AND REGULATORY ACTION
Law and Government Division
Smoke in the
C-204, now the Non-smokers Health Act, was introduced in October 1986
as a Private Members bill by Lynne McDonald. Passed in 1988 and proclaimed in
1989, the Act regulated smoking in the workplace and on common carriers that were under
Tobacco Sales to Young Persons
4 February 1993, the Minister of National Health and Welfare introduced Bill C-111, the
Tobacco Sales to Young Persons Act, in the House of Commons. The bill was quickly
passed by the House of Commons and Senate, and received Royal Assent in March 1993. It was
proclaimed in force in February 1994. This Act replaced the antiquated Tobacco
Restraint Act, raised the minimum age for buying tobacco products from 16 to 18, and
imposed fines of up to $50,000 on those selling tobacco to persons below that age. It also
severely restricted the placement of cigarette vending machines. The Act received
widespread support and positive reaction from politicians, the media, and even tobacco
manufacturers, although small retailers and vending machine operators expressed
reservations. In 1997, the Act was replaced by provisions of the new Tobacco Act.
Advertising Tobacco Products: The RJR-MacDonald Case
1988, Bill C-51, later known as the Tobacco Products Control Act, was passed by
Parliament and received Royal Assent. The Act provided the authority to ban all tobacco
advertising; to impose restrictions on and gradually phase out promotional activities and
sponsorship of events or persons by tobacco manufactures; and to require more explicit
health warnings on tobacco product packages.
June 1989, the Minister of Health and Welfare stated that no warnings linking tobacco use
and addiction could be put on packages of cigarettes until the government had confirmed
that such a relationship existed. The Royal Society of Canada was given $30,000 to study
the relationship, and reported in October 1989 that tobacco was indeed addictive. From
that date until the September 1995 Supreme Court of Canada decision in RJR-MacDonald,
the federal government required tobacco manufacturers to place explicit health warnings on
Canadian Tobacco Manufacturers Council challenged the Tobacco Products Control Act
in the courts as a violation of freedom of expression under the Canadian Charter of
Rights and Freedoms. In 1991, the Quebec Superior Court ruled that the legislation
intruded on provincial legislation and violated the tobacco companies right to
freedom of expression. In January 1993, however, the Quebec Court of Appeal overturned
this decision, holding that the ban on advertising was an appropriate response to the
smoking problem, even in the absence of conclusive proof that the ban would reduce
tobacco companies appealed the decision to the Supreme Court of Canada. They sought an
exemption from compliance with the regulations until the Court had disposed of the appeal,
but the Court, in March 1994, did not agree to this. In fact, as of September 1994, the
government required even tougher and more prominent health warnings on cigarette packages.
Nevertheless, in late September 1995, the Supreme Court released its decision in RJR-MacDonald,
striking down all the challenged advertisement and promotion prohibitions except for the
prohibition on the distribution of tobacco products without charge.
majority of the Court held that the legislation was properly part of the federal
legislative sphere; however, the Court also held, by a margin of five to four, that the
prohibitions on advertisement and promotion were unconstitutional restrictions of freedom
of expression, as guaranteed by the Charter. Although the Court approved the objective of
the legislation, it found that the laws were more severe than had been proven necessary to
meet Parliaments goal of reducing advertising-related consumption.
critical flaw in the labelling law was the "unattributed" nature of the
health warnings, which were seen as compelled expression imposed on the tobacco companies.
The critical flaw in the advertising ban was that it included both
"lifestyle" and purely informational advertising. The Court found that the
latter was not an inducement to smoke, as it simply provided comparative brand information
for existing smokers. The Court also found that a rational linkage between the use of
logos on non-tobacco merchandise and tobacco consumption had not been proved.
Court thought it possible that less severe laws, such as an advertising ban on only
"lifestyle" advertising or on advertising targeting young persons, or mandatory
health warnings attributed to the government or a related agency, might have been enough
to achieve the objective of reducing advertising-related consumption. It was noted,
moreover, that the government had refused to bring into evidence more than 500 documents
requested by the tobacco companies, including at least one document pertaining to a study
of alternative measures.
Canadian Tobacco Manufacturers Association said that, in spite of the Supreme Court
decision, it would continue to abide by the provisions of the Act for the time being. The
federal Minister of Health stated that the Courts decision and the governments
options were under study. Other interested groups argued either that the impugned
legislation should be re-enacted and protected by the "notwithstanding" clause,
or that tobacco advertisement and promotion should be prohibited under the federal Hazardous
Products Act. The tobacco industry adopted a voluntary code of ethics relating to
advertising; however, by early 1996 there were allegations that this code was
unenforceable and was in fact being violated.
Control: A Blueprint
December 1995, the Minister of Health released Tobacco Control: A Blueprint to Protect
the Health of Canadians, which provided the general outlines of plans for new
legislation to rebuild the governments strategy after the Supreme Courts
decision in RJR-MacDonald. The reinstatement of health-related messages and
information about toxic ingredients on tobacco product packaging, accompanied by a rule
allowing for attribution of the messages, was described as an important first step
According to the Blueprint, the governments intentions included:
restricting promotion by
such means as prohibiting cross-advertising between tobacco and non-tobacco products, and
prohibiting tobacco product testimonials and personal endorsements;
"lifestyle" advertising and promotion by limiting both the form and content of
publicity relating to tobacco company sponsorship of activities, events or venues, and by
requiring the prominent display of health warnings on such advertising as is permitted;
C-117, which addressed health and toxic contents warnings on tobacco product packaging,
was introduced for first reading in December 1995. Bill C-117 and its replacement, Bill
C-24, introduced in March 1996, would have amended the labelling provisions in the Tobacco
Products Control Act that had been struck down by the Supreme Court of Canada in the RJR-MacDonald
decision. Neither of these bills proceeded and in late 1996 they were replaced by Bill
C-71, now the Tobacco Act,.
The Tobacco Act (Bill C-71)
C-71, An Act to regulate the manufacture, sale, labelling and promotion of tobacco
products, was introduced for first reading on 2 December 1996 and received Royal Assent on
25 April 1997. Known as the Tobacco Act, the legislation regulates tobacco
labelling, tobacco product promotion, the composition of tobacco products, and young
persons access to these. Tobacco product advertising, sponsorship, testimonials,
points-of-sale display, and brand names on accessories are among the specific forms of
promotion affected by this legislation. There was intense debate over the original
proposed sponsorship restrictions and in its final form the legislation delayed their
coming into force until 1 October 1998 or such earlier day as ordered by the Governor in
Council. The legislation was quickly challenged by the tobacco companies on the grounds
that parts of it are unconstitutional and contrary to the 1995 Supreme Court decision in RJR-MacDonald.
Tobacco Act also replaced the Tobacco Sales to Young Persons Act. It
prohibits the provision of tobacco products to persons under 18 years of age, prohibits
the manufacture and sale of "kiddie packs," and limits self-service or automated
distribution of tobacco products.
most controversial aspect of Bill C-71 continued to be the restrictions on tobacco company
sponsorship of artistic, cultural and sporting events. Under pressure from both the
anti-tobacco health lobby and the artistic, cultural and sporting groups that benefit from
large-scale tobacco company financing, the government delayed a final decision on the
Bill C-42: Postponement of Sponsorship Restrictions
3 June 1998, Bill C-42, an Act to amend the Tobacco Act, was introduced in the House of
Commons. The bill, which has only five clauses, would extend the transitional period for
the introduction of tobacco sponsorship restrictions.
Bill C-42, sponsorships that existed as of 25 April 1997 would not be subject to any
restrictions for two years. On-site sponsorship promotion could continue for the next
three years, subject to some restrictions on promotional material furnished to the public.
After this five-year period, the promotion of tobacco sponsorships would be totally
prohibited. Health groups, who largely oppose any transitional provisions for tobacco
sponsorships, have been somewhat comforted by the provision for ultimate prohibition.
first two clauses of Bill C-42, as amended by the House of Commons Standing Committee on
Health, would, effective 1 October 2003, replace sections 24 and 25 of the Tobacco Act with
complete prohibitions on tobacco-related advertising arising from the sponsorship of
artistic, cultural or sporting events or facilities.
present, section 24 of the Tobacco Act allows the display of "a tobacco
product-related brand element" to promote the sponsorship of a person, event or
permanent facility by a tobacco company, subject to subsections (2) and (3) of section 24
and any regulations. Subsection 24(2) limits the display of tobacco brand information to
the bottom 10% of any promotional material, and subsection 24(3) limits the publications
in which, or the places where, such information can be displayed. Clause 1 of Bill C-42
would prohibit promoting tobacco company sponsorship of a person, event or permanent
facility as of 1 October 2003.
present, section 25 of the Tobacco Act states that, subject to the regulations, a
tobacco product-related brand element, such as a brand name or logo, may appear on a
permanent facility, such as a sports or cultural building, provided the name or logo is
part of the name of the facility. Clause 2(1) of Bill C-42 would prohibit the display of a
tobacco product-related brand element, or a tobacco manufacturers name, on a
permanent facility if such a display would associate the brand element or name with a
sports or cultural event or activity. However, under clause 2(2), the existing section 25
would until 1 October 2003 continue to apply to brand elements that appeared on a
permanent facility on the day the proposed legislation came into force.
3 would repeal the regulation-making power referred to in the present clauses 24 and 25;
this power would no longer be necessary because Bill C-42 would replace regulation by
prohibition. Clause 5(1) provides that clause 3 would come into effect on 1 October 2003.
4 contains interim provisions for sponsorships that were actively in existence in Canada
on the date of the passage of Bill C-71, 25 April 1997. The net effect would be that such
sponsorships would be exempted from compliance with the Tobacco Act for two years,
followed by a further three-year exemption for on-site promotion.
existing subsections 24(2) and 24(3) of the Tobacco Act came into force as of 1
October 1998; however, for sponsorships that existed in Canada on 25 April 1997, and that
had been active in the 15 months prior to that date, these subsections would not apply
until 1 October 2000. Moreover, these two subsections would not apply to on-site
promotions for five years, with the exception that subsection 24(2) would limit
tobacco-related information to the bottom 10% of the material furnished to the public.
People and entities participating in sponsored events would be equally exempted, whether
or not they had previously been involved in tobacco product-related sponsorship.
5 provides the dates on which the various provisions would come into force, as described
new or reactivated sponsorships would be subject to the existing sections 24 and 25 of the
Tobacco Act, which seriously limit the promotion of such sponsorship.
February 1998, Senator Colin Kenny introduced Bill S-13, The Tobacco Industry
Responsibility Act. The bill proposed creating a non-profit foundation, funded by a
levy on tobacco products, to discourage smoking among young people; to foster a smooth
transition away from dependence on tobacco industry funding for the arts, cultural, and
sport communities; and to assist tobacco farmers to switch to other viable crops. At third
reading, the bill was amended to remove the transitional provisions. Because the
government had decided to defer the sponsorship ban for five years, it was no longer
necessary to provide transitional support to the arts, cultural, and sport communities to
compensate for lost sponsorships. In December 1998, Bill S-13 was ruled out of order in
the House of Commons because it involved a tax and not a levy. Tax measures may be
introduced only in the House of Commons, and not by a Senate bill.