Parliamentary Research Branch

PRB 98-8E


Prepared by:
Mollie Dunsmuir
Law and Government Division
December 1998

Smoke in the Workplace

Bill C-204, now the Non-smokers’ Health Act, was introduced in October 1986 as a Private Member’s 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 federal jurisdiction.

Tobacco Sales to Young Persons

On 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

In 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.

In 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 their packaging.

The 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 smoking.

The 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.

A 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 Parliament’s goal of reducing advertising-related consumption.

The 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.

The 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.

The 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 Court’s decision and the government’s 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.

Tobacco Control: A Blueprint

In 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 government’s strategy after the Supreme Court’s 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 government’s intentions included:

  • implementing "the most comprehensive prohibition on advertising possible";

  • restricting promotion by such means as prohibiting cross-advertising between tobacco and non-tobacco products, and prohibiting tobacco product testimonials and personal endorsements;

  • minimizing "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;

  • further restricting underage purchasers’ access to tobacco products by prohibiting self-service displays and mail order sales;

  • prohibiting nearly all forms of advertising and promotion at point of sale and limiting product sale displays;

  • introducing regulations requiring changes to tobacco products such as lowered amounts of tar and other toxic constituents; and

  • increasing reporting requirements for tobacco manufacturers, distributors and importers.

Bill 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)

Bill 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.

The 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.

The 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 matter.

Bill C-42: Postponement of Sponsorship Restrictions

On 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.

Under 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.

The 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.

At 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.

At 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 manufacturer’s 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.

Clause 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.

Clause 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.

The 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.

Clause 5 provides the dates on which the various provisions would come into force, as described above.

Any 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.

Bill S-13

In 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.