Canada: Federal goverment asks court to toss challenge over cigarette pack warnings

Nov 22, 2012

The federal government is urging an Ontario court to toss out a constitutional challenge launched by a tobacco company, saying any violation of freedom of expression over a requirement to include larger warnings on the surface of cigarette packages is justified.

In its new statement of defence, the government says the value of JTI-Macdonald’s right to commercial expression in Canada’s Charter of Rights and Freedoms “is tenuous, and at best, low.” The tobacco company, whose main brand family is Export ‘A,’ filed the constitutional challenge in April after the government brought in regulations to increase the size of warnings to cover 75 per cent of the surface of cigarette packs, up from 50 per cent.

The images, in circulation since 2001, were also updated with more graphic visuals.

Imperial Tobacco Canada has also launched a separate constitutional challenge in the Ontario Superior Court, but the government has yet to file a statement of defence in that case.

Both companies argue that requiring 75 per cent of the display surfaces of cigarette packages with graphic health warnings constitutes a restriction to their rights to communicate with their customers and to use their trademarks. They also restrict the rights of consumers to product information and fair competition, the companies argue.

JTI-M’s statement of claim also argues that there is no rational connection between the expansion of health warnings and reduction of tobacco consumption, noting there are already “exceptionally high levels of awareness” in Canada that smoking involves health risks.

“The legislative background and circumstances behind the impugned regulations make their actual objective at best unclear,” according to the company’s statement of claim.

In its statement of defence, the government said increasing awareness of specific health risks is vital to bringing smoking rates down, given that almost five million Canadians continue to smoke. It also makes clear it could have gone even farther.

“Health warning messages occupying 75 per cent are more effective than the HWMs occupying 50 per cent, but the 90 per cent and the 100 per cent scenarios are even more effective. In short, larger warnings are more effective. Health Canada conducted studies which established this, and these studies were considered in the decision-making process.”

The government also argues the regulations don’t restrict a tobacco company’s property rights or its right to use its trademarks. “In any case, neither property nor economic rights are protected by the Charter,” the statement of defence states, reiterating Health Canada could have gone with plain packaging.

Referring to the 75 per cent coverage as “the least restrictive option,” the government said it sought to balance the goal of improving the effectiveness of the health warnings with the desire of tobacco companies “to communicate product-related information to their customers.”

Rob Cunningham, a senior policy analyst with the Canadian Cancer Society, says the constitutional claim of the tobacco company is “completely without merit,” pointing to the unanimous decision of the Supreme Court of Canada in 2007 that upheld regulations requiring health warnings to cover half of the panel of cigarette packs.

“The principles enunciated by the Supreme Court of Canada apply here,” said Cunningham. “The Supreme Court found that cigarette packaging deserves only a very weak level of protection in terms of freedom of expression. It was very far away from the core, such as political expression. But the objective of saving lives is extremely important.”

Source: Ottawa Citizen (November 21, 2012)