Tobacco Ad Bans -
Lessons from Canada

A recent Canadian Supreme Court ruling has provided some insight into the possible outcomes of challenges to Australian laws banning the advertising of tobacco products. David Flint reports.

Should tobacco companies be able to challenge advertising and promotional bans on the ground that they are unconstitutional? What protection is tobacco ad-vertising and promotion entitled to?

Justice La Forest, speaking recently for four judges of the Canadian Supreme Court, has no doubt about the answer to the second question. He believes that the sole purpose of tobacco advertising is to promote the use of a product which is harmful and often fatal. He places it as far from "core" political free speech as prostitution, hate-mongering or pornography. He believes it is only entitled to a very low degree of protection.

The world was stunned by a 1991 decision of the Quebec Superior Court in which it held that the 1988 Canadian Tobacco Products Control Act was invalid as an unreasonable infringement of freedom of expression. The Quebec Court of Appeal reversed this. A decision on a final appeal has just been handed down by the Supreme Court of Canada. In a 5 to 4 decision, the tobacco companies' appeal have been upheld, but for reasons which will give them limited comfort.

The case had all the hallmarks of the adversarial system:

• admit nothing;
• make the other side prove everything; and
• make your claims as wide as possible.

Limits on free speech

While advertising bans clearly infringe free speech, free speech cannot be absolute. In Canada, as in most democratic countries, it is subject to limitations, for example, defamation law. But these limitations must be reasonable. More precisely, they must be demonstrably justified in a free and democratic society.

The Court applied a series of tests. First, it had to be satisfied that the objective of reducing smoking was one of pressing and substantial importance. The Court agreed that even a small reduction in tobacco use would be a significant benefit. Then it asked whether Parliament's response was pro-portionate to this objective.

This second test involved the balancing of two essential components:

• a rational connection between the objective and the advertising bans; and (in what has now emerged as probably the most important test)
• that the measure proposed impairs free speech as little as is reasonably possible. (The minimum impairment test.)

If these two components were present, the Court had to ask whether the positive aspects of the objective outweighed the negative aspects of the impairment.

Do ads promote smoking?

But how do you show that advertising or promotion causes people, especially the young, to smoke? There was broad agreement that the exacting proof required in scientific circles was too demanding. Nor did the government have to prove its case beyond reasonable doubt, as the prosecution failed to do in the O.J. Simpson trial. The majority would accept proof on the balance of probabilities. The minority thought even this too demanding.

The Quebec trial judge had found that the government failed the very first test of proportionality. Much of the evidence was about the evil worked by tobacco rather than the effect of the bans. In fact, the only supporting scientific evidence was a New Zealand report. He found that this contained serious methodological errors. It was therefore devoid of any probative value. The government did not seriously challenge this finding in the appeal so the majority concluded there was no direct scientific evidence linking advertising bans and a decrease in tobacco consumption.

Why advertise?

The obvious question remained: why do tobacco companies spend so much on advertising if it does not increase consumption? The tobacco companies argued that advertising is only about obtaining a larger share of the market. The government was able to track down contradictory evidence. This clearly demonstrated that the aim of at least some advertising was expansion of the market. This is done by recruiting new smokers, and reassuring present smokers who might quit in response to vigorous antismoking campaigns. This was enough for the Court to find a rational connection. But it was not sufficient to justify the ban on using tobacco company logos on, for example, cigarette lighters.

So far, so good, for the government. It had almost satisfied the court. But it still had to show that the weapons it chose involved a minimum impairment of free speech. The companies countered by asking why was the government banning all advertising. Why did the ban extend to advertising which promoted one brand over another, or which informed the consumer about the content, taste and strength of different, or new, brands?

Report withheld

The government's case was fatally damaged by its refusal (under the cloak of Cabinet Confidentiality) to produce a study it had undertaken of the alternatives to a total ban. Madame Justice McLachlin concluded that she was hard pressed not to infer that the results of the studies must have undercut the government's claim that a less invasive ban would not have produced an equally satisfactory result. The minority strongly disagreed.

Nor did the government present any argument on the alternatives to a complete ban apart from an assertion that Parliament "had to balance competing interests". This was a tactical error. So was not separating the ban on, say, "lifestyle" advertising from the ban on informational advertising. Being inseparable, all were invalid.

Australian implications

The case demonstrates the fine line that a constitutional court will draw in cases where such legislation is challenged. Philip Morris has brought a similar case in Australia. This could be heard this year. Australia's implied freedom of political communication seems narrower than Canada's. It extends to paid advertising about political matters. Whether it goes further is unknown. Finding what the Constitution means takes time. It took about two centuries for the US Supreme Court to find that theirs protects purely commercial advertising. But the US guarantee of free speech is express and broad, while the Australian guarantee flows from the constitutional provisions for a representative democracy.

How could this extend to non-political advertising? Would it cover mixed advertising? For example, tobacco advertising which also criticised the ban? Could it be argued from other provisions - eg the requirement for freedom of trade and intercourse - that there is a guarantee of freedom of commercial free speech? If so, it would not be an absolute freedom. It too could be validly infringed by reasonable limitations or regulations. The US precedents suggest commercial free speech is more easily constrained than political speech provided that any constraint be narrowly drawn.

Mediation

This sort of case lends itself to an attempt at mediation. The public interest would be better served by both parties being more open with one another. The tobacco companies could accept that some advertising increases or maintains the size of the market. Equally, the government could commission objective studies about the effects of different levels of bans. For example, is a ban on all sporting promotions necessary to achieve the objective? Remember the Canadian court accepted that even a small reduction in smoking was a sufficient benefit.

Since the case, there has been at least one example of tobacco advertising, apparently by a maverick advertiser, directed at children. Further legislation is likely.

Imported ads

A practical issue about the effectiveness of national legislation did arise in the Canadian case. Despite the ban, 65% of the Canadian magazine market still contained tobacco advertisements! The government never proposed to cut off imports, aware no doubt of the trade dispute which would inevitably follow. In any event, banning foreign magazines would probably go well beyond the minimum permissible impairment to free speech. Without governments agreeing on and enforcing a total ban on advertising and promotions, imported magazines could be joined by computer technology and transnational broadcasters in sending tobacco advertising (including exposure to promotions) directly into the home.

David Flint

see also
Index of David Flint's material on the website

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