Free Life, the Journal of the Libertarian Alliance

The Canadian Government introduced a ban on tobacco advertising with the Tobacco Products Control Act (TPCA). The Act received Royal Assent on June 28 1988, and came into force on January 1 1989. However, in 1988, RJR-Macdonald Inc. and Imperial Tobacco Ltd. brought a motion in the Quebec Superior Court for a declaration that the Act was unconstitutional and a contravention of the Canadian Charter of Rights and Freedoms. The case ended with the decision of Mr Justice Chabot, on July 26 1991, which granted the motion and declared the Act inoperative and without effect.

This book contains the full text of the Court's decision preceded by a commentary consisting of seven essays addressing different aspects of the decision. The issues raised by the decision are of general interest because tobacco advertising bans are either in effect or on the agenda across the civilised world, and because tobacco advertising is only one specific instance of the principles at stake.

The TPCA prohibited the following: advertising of tobacco products offered for sale in Canada; free distribution of tobacco products; offers of gifts or bonuses to purchasers; and use of tobacco product trade marks in connection with any other product. It restricted the sponsorship activities of the tobacco industry; and it required that tobacco products display health warnings specified by the government but not attributed to the government (in other words, so that it would look like the health warnings were being issued by the manufacturers). On the other hand, it exempted from the ban ads for foreign tobacco products in publications imported into Canada or in the retransmission in Canada of radio or television broadcasts originating outside Canada.

(1) The TPCA was unconstitutional because the regulation of advertising falls within the powers of the Canadian provinces.

(2) The TPCA violated the Canadian Charter of Rights and Freedoms because it restricted freedom of expression in two ways. First, it banned certain forms of commercial expression. Second, the unattributed health warnings compelled the tobacco companies to say things that they might not have wanted to say; but freedom of expression includes the freedom to remain silent.

(3) However, freedoms protected by the Charter can be restricted provided the restrictions are reasonable and can be demonstrably justified in a free and democratic society. For this to be so, two conditions must be met. First, the objective of the restrictions must relate to a pressing and substantial concern in a free and democratic society. Second, the value of the objective must be "proportional" to the disvalue of the restrictions.

(4) The first of these conditions (the Court decided) was satisfied, since the stated objective of the TPCA was to protect the health of Canadians with respect to tobacco use, to protect young persons from inducements to use tobacco, and to enhance the awareness of Canadians regarding the hazards of tobacco. The use of tobacco is perceived as a scourge in Canada and in other free and democratic societies: "the struggle against tobacco use constitutes a sufficiently important objective in a free and democratic society such as ours to justify a restriction on a freedom guaranteed by the Charter".(p. 123)

(5) However, the second condition, the Court decided, was not met, on three counts, any one of which would be sufficient by itself. First, "the Act constitutes a form of censorship and social engineering which is incompatible with the very essence of a free and democratic society".(p. 137) The basic theory underlying the Charter is that the State will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life. Further, the ability of each citizen to make free and informed decisions is the absolute prerequisite for the legitimacy, acceptability and efficacy of democratic self-government. Advertising, quite apart from its intrinsic value as expression, plays a significant role in enabling individuals to make informed economic choices, which is an important aspect of individual self-fulfilment and personal autonomy. The TPCA seeks to suppress any message favourable to tobacco products while imposing a message dictated by the State, despite the fact that such products are lawful and regularly used by a third of the population. This would be a kind of paternalism or totalitarianism in which the State seeks to control the thoughts, beliefs and behaviour of its citizens along the lines that it considers acceptable.

(6) Second, there is no ground for a reasonable expectation that the measures proposed in the Act would achieve the Act's objective. There is no compelling evidence of a link between tobacco advertising and adults or children starting or continuing to smoke, or of a link between advertising bans (in those countries that have them) and a decrease in smoking. The evidence is rather that the purpose and effect of advertising is to encourage brand switching and to inform tobacco users of new products. Further, the Act's exemption of advertising in foreign magazines makes it a mockery, since American magazines account for 65% of all periodicals sold in Canada and they are read by 14.6 million people in Canada. A number of these magazines carry advertisements for American tobacco products which are sold in Canada.

(7) Third, a justifiable restriction of a freedom protected by the Charter must impair that freedom as little as possible. However, there were alternative measures which might have impaired freedom of expression less than the TPCA, but the government did not investigate these.

It is instructive to note the behaviour of the government's key expert witness, Dr Harris, on the question of the link between tobacco advertising bans and consumption. His testimony was based upon a report by the Toxic Substances Board (TSB) of New Zealand, "Health or Tobacco: An End to Tobacco Advertising and Promotion" (May 1989), which was the first serious attempt to link advertising with overall consumption. The Court noted that this report was based on erroneous data, was methodologically flawed, and was lacking in scientific rigour; and the conclusions of the report depended crucially on these errors. What is worse, despite his reliance on the conclusions of this report, it became clear in cross-examination that Dr Harris was fully aware of these errors but made no attempt to point them out to the Court. The Court deplored his lack of objectivity and dismissed his testimony and the TSB Report as of no probative value. As Luik nicely puts it, Dr Harris was not so much an expert with unanswered questions as an "expert" with unquestioned answers.(p. 46)

This is instructive for the insight it gives us into the mentality of the "health paternalist" (Luik's far-too-polite description). First, this type is quite ready to stand up in court and try to hoodwink people with spurious science. Second, although they knew that there was no evidence that a tobacco advertising ban would have any effect on consumption, they were nevertheless intent on introducing such a ban, presumably with no further purpose than that of punishing tobacco producers and consumers; and to satisfy this petty spite they were quite prepared to ride roughshod over constitutionally protected liberties. Does not "health fascist" sound more appropriate?

A couple of questions can be raised about point (4) above. This says that because tobacco use is perceived as a significant problem in free and democratic societies, restrictions of fundamental freedoms can be justified to deal with it. The Court rejected restrictions on tobacco advertising because there is no evidence that these would have had any impact on tobacco use. However, suppose the evidence had shown that ad bans lead to a decrease in consumption: would this have justified the institution of a ban? Alternatively, suppose that the Act had proposed, instead of a ban on advertising, a ban on tobacco use: would this have been an acceptable restriction of freedom to deal with the "scourge" of tobacco use?

The answer to the first question is clearly negative. For there were three reasons for rejecting tobacco advertising bans, the most important of which was that it would amount to totalitarian social engineering suppressing individual responsibility and autonomy. One might presume that this would apply a fortiori to a ban on tobacco use, so that the answer to the second question is negative also. However, this is not so clear, for three reasons.

First, Mr Justice Chabot's argument referred explicitly to the fact that tobacco use is a lawful activity: the rejection of the advertising ban appears to be predicated on this fact. Second, despite the fact that tobacco use is a freely chosen activity, the Court regarded it as a significant problem which could, in principle, justify restriction of fundamental liberties. Third, if the argument from autonomy could be employed to protect tobacco use, it ought to be equally legitimate to deploy it to defend drug use; but the latter is prohibited in Canada. The Court's commitment to personal responsibility and autonomy appears, therefore, to be somewhat pusillanimous.

However, even if a prohibition of tobaaco use would go unchallenged by the courts, it seems unlikely that any such measure would be seriously proposed. Past experience of prohibitions (on alcohol and drugs) shows that they are unenforceable, lead to a dramatic increase in the power and wealth of organised crime, lead to widespread corruption in enforcement agencies and throughout public life, and add a glamour to the prohibited activities which make them attractive to the young. So despite scruples about the Court's defence of autonomy, the Court's decision is nevertheless a real victory for human dignity.

Finally, let me make a few remarks about the commentaries that precede the text of the Court's decision. Six of the essays are by John Luik, at least three of which were previously published, and all of which are self-contained pieces addressing some or other aspect of the issues raised in the Court case. Because of this, the papers overlap at several points, and this makes for a considerable amount of repetition, which is somewhat tedious. It would have been a significant improvement if Luik could have written one, relatively short, essay synthesising the points made in these six. Further, the seventh paper, by John Foss, adds nothing to what Luik says, and could have been omitted entirely.

However, to end on a positive note, the essays provide an upbeat introduction to the Court's decision (though without raising any of the doubts that I have just expressed), and they contain some interesting thoughts on anti-smokers and "health paternalism".