Canada (Attorney General) v. JTI-MacDonald Corp., et al.

The Canadian Parliament enacted the Tobacco Act (the Act) and the Tobacco Products Information Regulations (the Regulations) in response to the decision of the Court in RJR-Macdonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311, which struck down a previous version of the Act. The new legislation permitted information and brand-preference advertising but prohibited lifestyle advertising, advertising appealing to children, and tobacco promotion that depicted tobacco products or was false or misleading. The size of health warning was also increased from 30 % to 50%.

The Plaintiff, a tobacco manufacturer, argued that some provisions of the new acts infringed on their right to freedom of expression as enshrined in the Canadian Charter of Rights and Freedoms (the Charter). Further, they claimed that those restrictions were not justified by the pursuit of a public health objective as permitted under s. 1 of the Charter.

The trial judge upheld the constitutionality of the provisions. The Quebec Court of Appeal found that most of the legislation was constitutional but struck down some of the provisions as not justified under s. 1. 1. The Attorney General appealed on the provisions that were struck down, and the tobacco manufacturers cross-appealed on the provisions that were found constitutional.

The provisions of the Act at issue were:

1. Sections 18 and 19, which imposed a ban on tobacco promotion that involved depicting tobacco products, packaging, or brands, except in artistic works where no consideration was given for the depiction.
2. Section 20, which banned tobacco promotion that was false, misleading, deceptive, or “likely to create an erroneous impression.”
3. Sections 22(2), 22(3) and 27(a), which allowed information and brand preference advertising generally but prohibited information and brand preference advertising directed at young persons
4. Sections 22(2), 22(3), and 22(4), which further carved out lifestyle advertising from the range of permitted information and brand preference advertising
5. Section 24, which prohibited sponsorships by tobacco companies
6. The regulations, which regulated the size and prominence of the warnings

The Supreme Court upheld the challenged provisions.

In relation to ss. 18 and 19, the Court found that while a total ban on sponsored scientific research would have unjustifiably impaired the right to free expression, the legislation did not impose such a ban. It merely banned “product placement,” or promotion for a commercial purpose. It hence allowed legitimate scientific research sponsored by tobacco companies

In relation to s. 20, the Court held that while s. 20 was an impairment of freedom of expression, as the Charter protected both truths and falsehoods, it was a justified one. The language was not overbroad, because it was directed at “the grey area between demonstrable falsity and invitation to false inference,” (para. 63) because such regulation of half-truths and false inferences was rationally connected to a public health objective and was recognised in the Framework Convention on Tobacco Control, and because removing the ability to express a half truth was clearly proportional to the aim of reducing smoking, which potentially could affect the life and health of millions of people.

In relation to ss. 22(2), 22(3) and 27(a), the Court rejected an argument that the provisions on advertising to youth were unjustified for being vague and overbroad. The provisions required that a prosecution under these provisions be based on reasonable grounds that the advertising could be particularly appealing to young persons as distinct from the general population. It did not have the effect of banning brand-preference advertising for adults, and it regulated low-value expression for a large benefit to society. As such, it could be justified.

In relation to ss. 22(2), 22(3) and 22(4), the Court also rejected an argument of the vagueness and overbreadth of the ban on “lifestyle advertising.” The legislation defined “lifestyle” by reference to the evocation of a “positive or negative emotion about or image of” tobacco, and was illustrated by the words “glamour, recreation, excitement, vitality, risk or daring.” It also left open a broad window of permitted advertising, unlike the legislation in RJR-MacDonald. The Court considered that this definition was intended to catch clear associations and subliminal evocations, and was a rational and proportionate response to the sophistication of modern tobacco marketing, which was of low value compared to public health aims.

In relation to s. 24, the Court considered that tobacco sponsorship was essentially lifestyle advertising in disguise, and that a ban on sponsorship would be constitutional for the same reasons as a ban on lifestyle advertising.

In relation to the Regulations, the Court considered that the increase in warning size was justified, because evidence established that larger warnings were more effective, and the Charter did not require Parliament to implement less effective measures. Furthermore, these requirements were reasonable, given that the FCTC and Australia, Belgium, Brazil, Finland, Singapore, Switzerland, and the European Union required equally large or larger warnings.

The Supreme Court allowed the appeal and dismissed the cross-appeal.

“(...) the international context has changed since 1995. Governments around the world are implementing anti-tobacco measures similar to and, in some cases, more restrictive than Canada’s. The WHO Framework Convention on Tobacco Control (2003), 2302 U.N.T.S. 229, which Canada ratified in 2004, mandates a comprehensive ban on tobacco promotion, subject to state constitutional requirements. The Convention, with 168 signatories and 148 parties, is one of the most widely embraced of multilateral treaties. Domestically, governments now widely accept that protecting the public from second-hand smoke is a legitimate policy objective.” Para. 10.

“Parliament’s objective of combating the promotion of tobacco products by half-truths and by invitation to false inference constitutes a pressing and substantial objective, capable of justifying limits on the right of free expression. Prohibiting such forms of promotion is rationally connected to Parliament’s public health and consumer protection purposes.” Para. 65.