19951
R. CUNNINGHAM – R.J.R. MACDONALD
R.J.R.-MacDonald Inc. v. Canada (A.G.):
Reflections from the Perspective of Health
Rob Cunningham*
The Tobacco Products Control Act came into
force in January 1989, prohibiting virtually all direct
and indirect advertising of tobacco products in Can-
ada. The Act was vigorously opposed by the tobacco
industry, which ultimately requested that courts find
the statute unconstitutional. The Quebec Superior
Court in RJJR.-MacDonald Inc. v. Canada (A.G.),
held that the Act was indeed ultra vires Parliament,
and that it unjustifiably infringed upon freedom of
expression as guaranteed in subsection 2(b) of the
Charter. The decision was overturned by the Quebec
Court of Appeal, and the matter is now on appeal to
the Supreme Court of Canada.
The author contrasts the Quebec decisions and
critically analyzes the Superior Court judgment. He
maintains that the Act meets the section 1 test under
the Charter. The author reaches this conclusion by
examining existing jurisprudence on commercial free
speech and by evaluating the government’s objectives
in light of the risks associated with tobacco consump-
tion. He argues that the rational connection between
the prohibition of advertising and decreased con-
sumption is evident from industry marketing strate-
gies and from independent health research. He further
contends that any less intrusive control would defeat
the purpose of the legislation. Fimally, the author urges
the Supreme Court of Canada to uphold the Act’s re-
striction on free speech in the interests of health.
les produits du
La Loi sur le contrrle des produits du tabac,
entre en vigueur en janvier 1989, interdit pratique-
ment toute forme de publicit6 directe ou indirecte
tabac au Canada.
portant sur
tabac s’est opposde
L’industrie canadienne du
farouchement a cette loi et a demand6 aux tribunaux
de la drclarer inconstitutionnelle. Or dans l’affaire
R.R.-MacDonald Inc. c. Canada (PG.), ]a Cour
sup6rieure du Quebec jugea que cette loi outrepassait
les pouvoirs du Parlement et portait atteinte de fagon
injustifire a ]a libert6 d’expression garantie au para-
graphe 2(b) de ]a Charte. Ce jugement fut renversd
par la Cour d’appel du Qubec et l’affaire a finale-
ment 6t6 port e devant la Cour supreme du Canada.
L’auteur met en contraste les d~cisions des tri-
bunaux do Quebec et proc~de plus particulirement A
l’analyse critique du jugement de la Cour sup~ieure.
II considlre que la Loi rencontre les exigences du test
de l’article premier de la Charte. II arrive A cette con-
l’ tude de la jurispru-
clusion apris avoir proc&ld 6
dence existante portant sur la question de la libre ex-
pression commerciale ainsi qu’t l’6valuation des ob-
jectifs poursuivis par le gouvemement eu 6gard aux
risques associrs a l’utilisation du tabac. Selon lui, les
strategies de marketing de l’industie ainsi que les re-
indlpendantes sur la sant6 damontrent
cherches
rationnel entre
clairement qu’il existe un
l’interdiction de faire de la publicit6 et la r~duction de
]a consommation de tabac. I1 ajoute qu’un assouplis-
sement du contr6le an6antirait les objectifs poursuivis
par cette 16gislation. Finalement, l’auteur presse ]a
Cour supreme du Canada de confirmer, dans l’intfr&
de ]a sant6, la validit6 de la restriction impos~e par
cette loi L ]a libert6 d’expression.
lien
“B.A., LL.B., M.B.A. The author is an Ottawa lawyer and a former policy analyst with the
Canadian Cancer Society.
McGill Law Journal 1995
Revue de droit de McGill
To be cited as: (1995) 40 McGill W. 229
Mode de r6frence: (1995) 40 R.D. McGill 229
230
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 40
Synopsis
Introduction
I.
H.
Proceedings to Date
The Tobacco Industry
ll.
Subsection 2(b)
IV.
V.
VI.
Section 1
Pressing and Substantial Objective
Rational Connection
A.
B.
C.
D.
E.
F.
G.
Standard of Proof
Standard of Judicial Review
Evidence of a Rational Connection
Tobacco Industry Marketing Documents
U.S. Imports
Low Tar and Nicotine Cigarettes
New Evidence
VII. Minimal Impairment
A.
B.
C.
D.
E.
F.
Lifestyle Advertising
InformationalAdvertising
Prohibiting Advertising to Specified Target Consumers
Prohibiting Advertising in Certain Media Only
Voluntary Self-Regulation
Other Less Intrusive Alternatives
VIII. Means Proportional to Objective
IX.
Health Messages
X.
Importance of the Case
Conclusion
1995]
R. CUNNINGHAM – R.J.R. MACDONALD
Introduction
The Tobacco Products Control Act’ was adopted by Parliament in 1988
and came into force January 1, 1989. The Act prohibits all direct and indi-
rect advertising of tobacco products, with certain exceptions. In addition to
the advertising ban, the Act prohibits the free distribution of tobacco, the use
of tobacco trademarks on non-tobacco goods (e.g. T-shirts, lighters), and the
use of cash rebates, gifts, contests, games or lotteries as promotional incen-
tives. The Act also provides the government with regulatory authority to
prescribe health messages on or in tobacco packaging. Further, the Act re-
quires manufacturers to report sales data, product contents, and certain other
information to the government.
The Act’s objectives are significant. Section 3 describes the Act’s purpose:
3.
The purpose of this Act is to provide a legislative response to a na-
tional public health problem of substantial and pressing concern and, in particu-
lar,
(a) to protect the health of Canadians in the light of conclusive evidence
implicating tobacco use in the incidence of numerous debilitating
and fatal diseases;
(b) to protect young persons and others, to the extent that is reasonable
in a free and democratic society, from inducements to use tobacco
products and consequent dependence on them; and
(c) to enhance public awareness of the hazards of tobacco use by ensur-
ing the effective communication of pertinent information to con-
sumers of tobacco products.2
The passage of the Act was vigorously opposed by the tobacco industry and
was just as ardently supported by health organizations. Despite the support of
all parties in Parliament, passage of the Act was delayed until fourteen months
after introduction, almost entirely as a result of the industry’s lobbying. After
their defeat in Parliament, tobacco companies quickly sought to overturn the
legislation in the courts.
This article comments on the decisions of the Quebec Superior Court and
‘R.S.C. 1985 (4th Supp.), c. 14 [hereinafter T.P.C.A.].
2 Ibid., s. 3.
‘ For a discussion of the lobbying battle, see K. Kyle, “Canada’s Tobacco Legislation: A Vic-
tory for the Health Lobby” (1990) 28:4 Health Promotion 8; M. Mintz, “No Ifs, Ands, or Butts”
(1990) 22:6 The Washington Monthly 30.
232
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 40
the Quebec Court of Appeal as they relate to freedom of expression.4 Aspects
of those judgments relating to division of powers issues are, for the most part,
not covered.
I. Proceedings to Date
On July 20, 1988, shortly after the T.RC.A.’s royal assent on June 28, 1988,
Rothmans, Benson & Hedges Inc. (“R.B.H.”) filed a statement of claim in the
Federal Court of Canada. The company pleaded that the T.P.C.A. was ultra
vires Parliament’s authority as set out in the Constitution Act, 1867,’ and that
certain sections of the Act infringed the protection of freedom of expression in
the Canadian Charter of Rights and Freedoms.6 An amended statement of
claim later alleged that the Act also infringed the equality rights protected by
section 15 of the Charter.
For the R.B.H. claim, the Canadian Cancer Society was granted intervenor
status notwithstanding the plaintiff’s objections.7 The Institute of Canadian
Advertising was also granted intervenor status.8 Because of proceedings in the
Quebec courts regarding the T.P.C.A.’s constitutionality, R.B.H. has not sought
to have its claim tried.9
On September 1, 1988, shortly after the R.B.H. claim was filed, Imperial
Tobacco Ltd. and R.J.R.-MacDonald Inc. each filed applications in the Quebec
Superior Court. Both companies pleaded that the T.P.C.A. was ultra vires
Parliament and that the Act (or, more specifically sections 4, 5, 6, and 8 of the
4RJ.R.-MacDonald v. Canada (A.G.), [19911 R.J.Q. 2260, (sub nom. Imperial Tobacco Ltd. v.
Canada (A.G.)) 82 D.L.R. (4th) 449 (Sup. CL) [hereinafter RJ.R.-MacDonald cited to D.L.R.],
rev’d [1993] RJ.Q. 375, 102 D.L.R. (4th) 289 (C.A.) [hereinafter R.R.-MacDonald (C.A.) cited
to D.L.R.]. Leave to appeal granted 14 October 1993, [1993] 3 S.C.R. vii (Imperial Tobacco
Ltd.), viii (R.J.R.-MacDonald Inc.) [hereinafter RJ.R.-MacDonald (S.C.C.)]. The D.L.R. contain
unofficial translations of the Quebec decisions.
-‘(U.K.), 30 & 31 Vict., c. 3 [hereinafter Constitution Act, 1867].
6 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.
11, s. 2(b).
7 Rothmans, Benson & Hedges Inc. v. Canada (A.G.) (No. 1) (1989), [1990] 1 F.C. 74,29 F.T.R.
267 (T.D.) [hereinafter Rothmans (F.C.T.D.)], rev’d in part (1989), [1990] 1 EC. 90, 45 C.R.R.
382 (C.A.) [hereinafter Rothmans (F.C.A.)].
‘Rothmans (F.C.A.), ibid.
9 An attempt by the Attorney General to stay the Federal Court case pending the outcome of the
Quebec case was held to be premature: Rothmans, Benson & Hedges Inc. v. Canada (A.G.) (No.
3) (1989), 29 FT.R. 275,27 C.PR. (3d) 125 (TLD.).
1995]
R. CUNNINGHAM – RJ.R. MACDONALD
Act in the case of Imperial Tobacco) infringed the Charter’s protection of
freedom of expression.
Before trial in Quebec, a number of preliminary disputes were resolved in
court.’0 Further, the Canadian Cancer Society was denied intervenor status.”
Before the Superior Court decision was rendered, the T.P.C.A. was the subject
of academic articles which contested the industry’s freedom of expression
arguments.”
The applications of R.J.R.-MacDonald and Imperial Tobacco were heard
together, but were not formally joined. The trial itself, before Chabot J. of the
Quebec Superior Court, lasted thirteen months. There were 28 witnesses
(mostly experts), some 560 exhibits, and more than 10,000 pages of transcribed
proceedings.
The decision of Chabot J., released July 26, 1991, declared the T.P.C.A.
unconstitutional. He held that the pith and substance of the Act was the control
of advertising, and that the Act could not be upheld as intra vires Parliament
under either the criminal law power, 3 or the power to make laws for the peace,
order and good government of Canada.14 He further held that the advertising
ban infringed subsection 2(b) of the Charter and was not saved by section 1.
While Chabot J. accepted the Act’s objectives as pressing and substantial, he
found that the limitation on freedom of expression was not proportional to its
objectives. Chabot J. strongly criticized the advertising ban. He also held that
the required health warnings infringed the tobacco companies’ freedom of
0RJ.R.-MacDonald Inc. v. Canada (A.G.), [1988] R.J.Q. 2779 (Sup. Ct.) (re application pro-
cedure); Imperial Tobacco Ltd. v. Canada (A.G.) (1990), 25 Q.A.C. 338, rev’g (18 October
1988), Montreal 500-05-009760-883, J.E. 89-1027 (Sup. Ct.) (re trial date); RJ.R.-MacDonald
Ltd. v. Canada (A.G.) (1988), 25 Q.A.C. 339, rev’g (18 October 1988), Montreal 500-05-009755-
883, J.E. 89-1136 (Sup. C.) (re trial date); Canada (A.G.) v. Imperial Tobacco Ltd., [1989] R.D.J.
209 (C.A.), aff’g (15 December 1988), Montreal 500-05-009760-883, J.E. 89-1027 (Sup. Ct.) (re
production of documents).
“Imperial Tobacco Ltd. v. Canada (A.G.) (1988), [1989] R.J.Q. 367, 55 D.L.R. (4th) 555 (Sup.
Ct.), aff’d (sub nom. SocihtJ Canadienne du Cancer v. Impirial Tobacco Ltie.), [1989] R.J.Q.
820,59 D.L.R. (4th) 743 (C.A.). Leave to appeal to S.C.C. refused [1989] 1 S.C.R. xv.
,2 E.g. R. Cunningham, “Cigarette Advertising and Freedom of Expression: The Case for the
Tobacco Products Control Acf’ (1990) 48 U.T. Fac. L. Rev. 304; K. Kowal, “The First Amend-
ment and Section 2(b) of the Charter: Predicting the Outcome of the Tobacco Products Advertis-
ing Ban in Canada” (1991) 1 Media & Communications L. Rev. 237; R. Moon, “Lifestyle Ad-
vertising and Classical Freedom of Expression Doctrine” (1991) 36 McGill L.J. 76.
‘3 Constitution Act, 1867, supra note 5, s. 91(27).
Ibid., s. 91.
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MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
(Vol. 40
expression because that freedom includes the right to remain silent. Because
the warnings could not be attributed to the government as author, they could
not be saved by section 1.
The Superior Court decision was the subject of substantial media
commentary.”5 While tobacco companies were pleased with the victory, health
groups quickly urged an appeal. Internationally, many health organizations
outside Canada also wrote to the Prime Minister, calling for an appeal.’6
An appeal was argued before the Quebec Court of Appeal in May, 1992. In
a decision released January 15, 1993, the Court of Appeal reversed the trial
judgment. 17 A unanimous Court (Rothman, LeBel and Brossard JJ.A.) held that
while the T.P.C.A. could not be upheld under the criminal law power, it was
intra vires Parliament by virtue of the power to make laws for the peace, order
and good government of Canada.’ Regarding freedom of expression, the
Attorney General admitted that subsection 2(b) was infringed. A majority of the
Court held that the T.P.C.A. was saved by section 1 (LeBel J.A., Rothman J.A.
concurring). Brossard J.A. dissented in part, holding that the advertising
restrictions were not saved by section 1. He was of the view, however, that
unattributed health warnings and the prohibition of the free distribution of
” E.g. A.C. Hutchinson, “Tobacco Ruling No Triumph for Free Speech” The Toronto Star (29
July 1991) A13; Editorial, “Tobacco Ad Ruling: Blow to Democratic Tradition” The Ottawa Citi-
zen (30 July 1991) A6; Editorial, “The Advertising of Cigarettes” The [Toronto] Globe and Mail
(30 July 1991) A10; J. Simpson, “The Charter Intrudes Upon Yet Another Essentially Political
Question” The [Toronto] Globe and Mail (7 August 1991) A10; R. Martin, “A Judicious Use of
Words? Assessing the Rhetorical Technique in the Superior Court Ruling on Tobacco Advertis-
ing” The Ottawa Citizen (12 August 1991) A7; T. Corcoran, “Tobacco Ruling Strikes Blow for
Freedom” The Ottawa Citizen (30 July 1991) B2; W. Johnson, “Ban on Tobacco Advertising is
Censorship” The [Montreal] Gazette (2 August 1991) B3.
6 E.g. Letter of National Forum for Coronary Heart Disease Prevention (U.K.) to Prime Minis-
ter B. Mulroney (5 August 1991); Letter of European Bureau for Action on Smoking Prevention
to Prime Minister B. Mulroney (1 August 1991); Letter of the American Medical Association to
Prime Minister B. Mulroney (31 July 1991).
” RJ.R.-MacDonald (C.A.), supra note 4. A few months prior to the decision, the Court of Ap-
peal ordered a stay of execution on enforcement of the ban on tobacco advertising in retail stores,
a phase-in provision effective January 1, 1993 (RJ.R.-MacDonald Inc. v. Canada (A.G.) (1992),
11 R.D.J. 237 (C.A.)). The stay was effective until release of the Court’s decision on the merits.
” For a comment on this aspect of the decision, see J. Leclair, “Droit constitutionnel – Partage
des compdtences –
Loi n5glementant les produits du tabac, S.C. 1988, c. 20 – La th~orie des
dimensions nationales: une boite A phantasmes: Canada (Procureur Giniral) c, RJ.R.-
MacDonald Inc.” (1993) 53 R. du B. 524. See also W.J. Kielty, “Benson & Hedges (Canada) Ltd.
v. Attorney-General of British Columbia (1972), 27 D.L.R. (3d) 257 (B.C.S.C.): A Case Com-
ment’
(1973) 2 Queen’s LJ. 59; R. Cunningham, “The Difficulties Provinces Have in Imple-
menting a Complete Ban on Tobacco Advertising” (1995) Health L. Can. (forthcoming).
1995]
R. CUNNINGHAM – RJ.R. MACDONALD
tobacco products were saved by section 1. Had the advertising ban been
restricted to lifestyle advertising, Brossard J.A. would have upheld the ban
under section 1.
The two companies were given leave to appeal to the Supreme Court of
Canada on October 14, 1993.”9 Oral argument in the case was heard by the
Court November 29 and 30, 1994 and judgment was reserved. Although four
provincial governments, those of Ontario, Quebec, Saskatchewan, and British
Columbia, had filed notices of intention to intervene, only Ontario and Quebec
participated in the proceedings. The Canadian Cancer Society, the Canadian
Council on Smoking and Health, the Canadian Lung Association, the Canadian
Medical Association, and the Heart and Stroke Foundation of Canada were
collectively granted status as intervenors, over industry objections. 0
Following the Court of Appeal decision, the federal Cabinet significantly
strengthened the requirements with respect to health warnings. An application
by the industry to delay implementation of the new requirements until one year
after the Supreme Court ruling on the T.P.C.A.’s constitutionality was
unanimously dismissed by a nine-member Supreme Court bench.2′
I. The Tobacco Industry
The tobacco industry is dominated by an oligopoly of three companies
which together control 99 per cent of the cigarette and roll-your-own tobacco
market in Canada. The largest company, Imperial Tobacco Ltd., controlled
about 60 per cent of the cigarette market at the time of the Act’s passage.
Imperial’s market share has since increased to 67 per cent.22 The company is
wholly owned by Imasco Ltd., which in turn is affiliated with British-American
Tobacco of the United Kingdom. Rothmans, Benson & Hedges Inc., which
currently has about a 20 per cent market share, is affiliated with both U.S.-
based Philip Morris and British-based Rothmans International. R.J.R.-
MacDonald, which has about a 12 percent market share, is a wholly-owned
‘9 R.R.-MacDonald (S.C.C.), supra note 4.
20 The motion for status as an intervenor was approved by Major J. on 15 February 1994.
22 RJ.R.-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385
[hereinafter RJ.R.-MacDonald (S.C.C. I) cited to S.C.R.]. The Heart and Stroke Foundation of
Canada, the Canadian Cancer Society, the Canadian Council on Smoking and Health, and Physi-
cians for a Smoke-Free Canada were intervenors in this application.
‘ Current market share data comes from J.C. Maxwell, “The Maxwell Report: International,
Part r’ Tobacco Reporter (May 1994) at 12.
236
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 40
affiliate of U.S.-based R.J. Reynolds Tobacco. The remaining market share of
less than 1 per cent includes a small firm, Bastos du Canada Lt6e., and a small
number of imports.
The Canadian industry is highly profitable. Pre-tax profit in 1993 for the
two largest companies stood at a record-high 609 million dollars.” Profits have
been increasing annually since 1986. The total retail value of tobacco sales in
1992 was 9.8 billion dollars.24
Historically, increased calls for the regulation of the tobacco industry
followed a statement by then Health Minister Judy LaMarsh in 1963 about the
health consequences of tobacco use,5 and the landmark 1964 Report of the
Advisory Committee to the U.S. Surgeon General. In 1969, the House of
Commons Standing Committee on Health, Welfare and Social Affairs held
lengthy public hearings on tobacco and issued a report recommending a ban on
tobacco advertising.26 Former Health Minister John Munro introduced a bill to
do just that, but the bill never went beyond first reading because of pressure
from the tobacco lobby. The passage of the T.P.C.A. in 1988 marked the first
federal legislation regulating tobacco manufacturers.27 Tobacco is not regulated
by the Hazardous Products Act,2 the Food and Drugs Act or the Narcotic
Control Act. Rather, since 1964, the Canadian tobacco industry has restricted
its marketing through a voluntary code’ which has been strengthened several
times to date. However, tobacco companies do not acknowledge that smoking
is a cause of lung cancer, that anyone has ever died from smoking, that
Imasco Ltd., AnnualReport 1993; Rothmans Inc., AnnualReport 1993. Rothmans figures are
for the year ending 31 March 1993.
‘ Canadian Tobacco Manufacturers’ Council, “Tobacco in Canada 1992” (1 June 1993) at 2.
‘ House of Commons Debates (17 June 1963) at 1213-14.
6 Canada, House of Commons, Report of the Standing Committee on Health, Welfare and So-
cial Affairs on Tobacco and Cigarette Smoking (Ottawa: Queen’s Printer, 1969).
‘ Prior to this, the industry had some voluntary restrictions on its marketing and was subject to
excise tax laws. A federal law passed in 1908 (Tobacco Restraint Act, S.C. 1908, c. 73) and a
number of provincial laws prohibited the sale of tobacco to young persons. In 1971, British Co-
lumbia banned tobacco advertising (Tobacco Advertising Restraint Act, S.B.C. 1971, c. 65.). This
ban was substantially repealed following (and notwithstanding) an unsuccessful challenge by the
industry to the law’s constitutionality. (Benson & Hedges (Canada) Ltd. v. British Columbia
(A.G.), [1972] 5 W.W.R. 32,27 D.L.R. (3d) 257 (B.C.S.C.)).
R.S.C. 1985, c. H-3.
R.S.C. 1985, c. F-27.
30R.S.C. 1985, c. N-1.
3, Canadian Tobacco Manufacturers’ Council, “Cigarette & Cigarette Tobacco Advertising and
Promotion Code of the Canadian Tobacco Manufacturers’ Council” (1 January 1976) [hereinafter
C.TM.C. Code].
19951
R. CUNNINGHAM – RJ.R. MACDONALD
cigarettes are addictive, or that second-hand smoke is harmful.32
mH. Subsection 2(b)
In hwin Toy Ltd. v. Quebec (A.G.),33 the Supreme Court of Canada held
that commercial expression was covered by the protection of freedom of
expression in subsection 2(b) of the Charter, which states:
2.
Everyone has the following fundamental freedoms: …
(b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication.
Given Iiwin Toy, and given that the Attorney General admitted before the
Court of Appeal in the present case that the T.P.C.A. infringed subsection 2(b),
this article concentrates on the section 1 analysis. Nevertheless, commentators
have argued that cigarette lifestyle advertising should be exempt from
subsection 2(b) protection,34 and that exceptions
the protection of
commercial advertising should apply in the case of tobacco advertising.35
Further, it is doubtful that the ban on the free distribution of tobacco products,
found in subsection 7(1) of the T.P.C.A., conveys or attempts to convey a
meaning, and thus infringes the protection of commercial expression. This
question was not discussed in either Quebec decision. Similar doubt might be
cast on subsection 7(2), which prohibits the use of gifts, cash rebates and other
promotional incentives. Finally, the issue remains open as to whether the
mandatory health warnings infringe subsection 2(b). This question will be
examined later.
to
” The industry’s position was articulated in detail before the U.S. House of Representatives
Committee on Energy and Commerce, Subcommittee on Health and the Environment (14 April
1994). See also Canada, House of Commons, Minutes of Proceedings and Evidence of the Legis-
lative Committee on Bill C-204 (24 November 1987) at 13:29. See also the comments of R.
Parker, President Canadian Tobacco Manufacturers’ Council, on “Centrepoint’, CBC Radio (10
April 1994). On the question of addiction, see testimony of R. Parker in Canada, House of Com-
mons, Minutes of Proceedings and Evidence of the Standing Committee on Health (12 May
1994) at 10:64-65.
” [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 [hereinafter Irwin Toy cited to S.C.R.].
Moon, supra note 12.
35Cunningham, supra note 12.
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[Vol. 40
IV. Section 1
Laws which
infringe a Charter-protected right or freedom may
nevertheless be found constitutionally valid if they can be saved by section 1 of
the Charter:
1. The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society.
The test to determine whether a limit is reasonable was initially set out in
R. v. Oakes.6 In Oakes, the Supreme Court of Canada stated that first, a law’s
objective must “relate to concerns which are pressing and substantial in a free
and democratic society. 37 Second, the means chosen to achieve the objective
must be
three-part
proportionality test: the measures must be rationally connected to achieving the
objective; they should impair the right or freedom as little as possible; and the
effects of the measures must be proportional to the identified objective.38 Each
of these steps will be considered in turn.
justified and survive a
reasonable, demonstrably
V. Pressing and Substantial Objective
The government had no difficulty establishing the pressing and substantial
nature of the objective of the T.P.C.A. Although Chabot J. made no finding as
to whether tobacco use caused disease or death, let alone the extent of such
harm, he did find that there was a sufficiently important objective:
Uncontradicted evidence adduced by the A.G.C. clearly and undeniably
indicates that tobacco use has been perceived in Canada and in the interna-
tional community as a scourge for many years. The mass of information,
studies and research gathered in Canada and throughout the world, particu-
larly during the past 25 years, makes it abundantly clear that tobacco use
constitutes a substantial and pressing concern in Canada, in free and demo-
cratic societies and, more generally, in the world community as a whole. In
the opinion of the court, the struggle against tobacco use constitutes a suf-
ficiently important objective in a free and democratic society such as ours
to justify a restriction on a freedom guaranteed by the Charter.9
[1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to S.C.R.].
37Ibid. at 138-39.
38Ibid. at 139.
39RJJR-MacDonald, supra note 4 at 492 [emphasis added]. It is interesting to note that for the
. accepted the “struggle against tobacco use” as a sufficiently
purposes of the Charter, Chabot
1995]
R. CUNNINGHAM – R.J.R. MACDONALD
Before the Court of Appeal, the companies acknowledged that “legislative
measures the purpose of which is to check, diminish and/or control the scourge
of tobacco use might, within reasonable limits, be justified in a free and
democratic society.”’40 While this admission benefitted the government’s case, it
also hindered it in two ways.
First, perhaps as a result of the admission, the Court of Appeal failed to
consider the magnitude of the objective. Indeed, in our view, the objective of
preventing the serious harm caused by tobacco use outweighs any other
objective yet considered by courts under section 1. Tobacco use is the leading
preventable cause of addiction, disease, disability and death in Canada today.
The 38,000 annual premature deaths in Canada attributable to tobacco4′
approach the 42,000 Canadian war fatalities in all the years of World War II.
Adolescents continue to take up smoking at an alarming rate notwithstanding
three decades of educational efforts to discourage tobacco use. Among
smokers, the annual number of premature deaths from tobacco use far exceeds
the number of deaths from motor vehicle accidents, suicide, murder, AIDS and
illicit drug abuse combined.42
Voluminous evidence was presented at trial about the impact of tobacco use
on cancer, lung disease, heart disease, the health of the fetus, the health of non-
smokers (due to second-hand smoke), and other health consequences. Chabot J.
considered this evidence irrelevant and he “[had] no intention of deciding 43 on
the health consequences of tobacco use:
[Miuch of the expert scientific evidence relating to the effects of tobacco
on health, however voluminous and instructive, was nevertheless, with re-
spect, irrelevant to the case and, in the humble view of the court, served
merely to colour the debate unnecessarily …
For the purposes of this constitutional challenge, the question is not
whether tobacco cadses lung cancer or whether in fact, on a preponderance
of probabilities, it accounts for the deaths of 35,000, 20,000, 5,000 or one
important objective. But when examining the T.P.C.A. on the division of powers question, he
found that the Act’s pith and substance did not deal with health or tobacco use, but rather with the
control of advertising of a particular class of products (ibid. at 467).
RJ.R.-MacDonald (C.A.), supra note 4 at 328-29.
,’ N.E. Collishaw & K. Leahy, “Mortality Attributable to Tobacco Use in Canada, 1989” (1991)
12:4 Chronic Diseases in Canada 46.
4Z Y. Mao et al., “The Health Consequences of Smoking Among Smokers in Canada” (1988)
79:5 Canadian Journal of Public Health 390.
4 3R.R.-MacDonald, supra note 4 at 491.
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person per year.”
With respect, the questions Chabot J. declined to decide are highly relevant.
When balancing under section 1, it is not only relevant whether the threshold of
“pressing and substantial objective” has been met, but it is also relevant how far
the threshold has been exceeded. The more significant the objective, the more
likely a law will survive the proportionality test. The objective can affect the
degree of proof required. The evidence required is commensurate with the
occasion, and should be inversely related to the importance of the objective.
The magnitude of the problem may contribute to a judicial conclusion that an
element of the section 1 analysis is “obvious or self-evident”.45 Further, the
importance of the objective is directly germane in the third part of the
proportionality test which balances the objective with the effects of restricting a
constitutionally protected right.
Second, the admission hindered the government by dealing with only one
“pressing and substantial objective”. Section 3 of the Act, as noted above, lists
three objectives. Neither the trial court nor the appeal court considered whether
these other objectives were valid for the purpose of section 1 analysis.
… from
inducements
The stated purpose in paragraph 3(b) is “to protect young persons and
others
to use tobacco products and consequent
dependence on them.” If this objective were accepted as valid, and, in our view,
it should be, then the government’s section 1 burden would be discharged
simply. Prohibiting tobacco advertising is rationally connected to protecting
young persons from inducements to use tobacco because the advertising ban
eliminates the inducements. In terms of minimal impairment, there is no other
way to prevent young people from being exposed to tobacco advertisements
than by eliminating the ads altogether.
The Supreme Court’s decision in Iiwin Toy may suggest that the objective
in paragraph 3(b) would be accepted as valid. In that case, a majority of the
Court upheld the Quebec ban on commercial advertising directed at children
under thirteen years of age, stating that “[tlhere can be no doubt that a ban on
advertising directed to children is rationally connected to the objective of
protecting children from advertising., 46 The majority held that the concern
which prompted the legislation was pressing and substantial, noting that the
“concern is for the protection of a group which is particularly vulnerable to the
“Ibid.
‘, Oakes, supra note 36 at 138.
“Irwin Toy, supra note 33 at 991.
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R. CUNNINGHAM – RJ.R. MACDONALD
techniques of seduction and manipulation abundant in advertising. ‘ 47 While in
Irwin Toy the Court was not faced with a general advertising ban on children’s
products (which would not have survived section 1 analysis), neither was the
Court faced with the advertising of a product which is addictive, carcinogenic,
and lethal when used exactly as intended. The potential acceptability of the
objective in paragraph 3(b) is enhanced by two factors: the early onset of
smoking, and the impact of tobacco advertising on children.
Evidence before Chabot J. from Imperial Tobacco data indicated that the
median age of onset of regular smoking was 15.2 years for males and 14.7
years for females. Further, 20 per cent of male smokers and 22 per cent of
female smokers begin regular smoking by age 13.48 A research report for
Imperial Tobacco made these comments about the age at which smoking
behaviour is initiated:
Serious efforts to smoke occur between ages 12 and 13 in most case [sic].
Playful experimentations, especially by children from smoking homes, can
take place as early as 5 years of age, but most often around 7 or 8….
However intriguing smoking was at 11, 12 or 13, by the age of 16 or 17
many regretted their use of cigarettes for health reasons and because they
feel [sic] unable to stop smoking when they want to. 9
There are numerous studies providing evidence of the impact of advertising
on children. In one American study, “Joe Camel” (the cartoon character that
promotes Camel-brand cigarettes) was equally as recognizable among six-year-
olds as was the Disney Channel logo which bears a silhouette of Mickey
Mouse.0
VI. Rational Connection
Rigorously applying a balance of probabilities test, Chabot J. examined
whether a ban on tobacco advertising would reduce tobacco consumption. He
concluded that, “[i]n the face of all the documentation available prior to the
adoption of the Act, this possibility [that advertising may affect overall
4 71Ibid. at 987.
48 Exhibit AG-197, Dr. J.E. Harris, “Supplementary Report” at 14, 15. The figures are based on
data from Imperial Tobacco’s “Monthly Monitor”. Neither this aspect of Harris’ evidence, nor
any other referred to below in this article, was discussed by Chabot J.
49 Exhibit AG-216, Kwechansky Marketing Research Inc., “Project 16” (report prepared for
Imperial Tobacco Ltd.) (18 October 1977) at ii, vi [hereinafter “Project 16″].
” P.M. Fischer et al., “Brand Logo Recognition by Children Aged 3 to 6 Years. Mickey Mouse
and Old Joe the Camel” (1991) 266:22 J. of the American Medical Association 3145.
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consumption] goes no further than speculation and certainly does not rise to the
level of a probability.”‘” He also stated that “the evidence of a rational
connection between the restrictions and the objective sought is deficient, if not
non-existent.”52
The majority of the Court of Appeal rejected the civil balance of
probabilities standard used by Chabot J., stating that “what was necessary was
to identify the existence of a reasonable basis for governmental action.” 3 The
majority adopted the remarks of Sopinka J. in Dickason v. University of
Alberta:
The rationale for this approach in the latter case is that in dealing with gov-
ernmental actors, it is often difficult, if not impossible, to prove in the ordi-
nary way whether a particular measure will in fact achieve its objective.
Accordingly, if Parliament, a legislature or other governmental body had a
reasonable basis for concluding that the measure would achieve its objec-
tive, that is ordinarily a basis for concluding that there is a rational connec-
tion between the measure and the governmental objective. Accordingly,
although the government could not prove that advertising toys on televi-
sion had a manipulative effect on children, nor that hate propaganda actu-
ally promoted hatred against an identifiable group, nor that pornography
caused harm to women, the fact that there was sufficient evidence to pro-
vide a reasonable basis for the legislature to adopt the impugned legislation
in aid of its objective was sufficient to save it.’
Lebel J.A., for the majority of the Court, also stated:
In matters of social policy choices, an examination of the Supreme Court
jurisprudence reveals a flexible approach with respect to the nature of the
evidence required. … The jurisprudence suggests rather that one should
determine whether, in its defence of the limitation of a constitutionally
guaranteed right, particularly in matters of socio-economic policy and the
balancing of opposed social interests, the state has offered evidence which
indicates the existence of a reasonable foundation for the measure chosen.
What must be demonstrated is that the choice adopted by the legislator
falls within the realm of possibilities. The question is not whether there is a
real probability.5
5,R.R.-MacDonald, supra note 4 at 514. This passage raises the question as to the value of the
evidence available after the adoption of the Act. An extensive amount of such evidence, including
corporate documents, was presented to the court.
52 Ibid. at 515.
53R.R.-MacDonald (C.A.), supra note 4 at 321.
4 [199212 S.C.R. 1103 at 1195-96, 95 D.L.R. (4th) 439.
” RJ.R.-MacDonald (C.A.), supra note 4 at 319.
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R. CUNNINGHAM – RJ.R. MACDONALD
243
The majority concluded that “the Attorney-General of Canada has
presented sufficient evidence to establish a reasonable basis for the legislative
action and to justify the rational connection between the objective sought and
the means utilized.”56 In doing so, the majority cited expert witness testimony,
resolutions of the World Health Organization, the 1989 U.S. Surgeon General’s
Report, and the companies’ internal marketing documents that referred to
expanding the overall market and dissuading smokers from quitting.57
In dissent, Brossard J.A. held that a rational connection will be established
“if it is shown on a balance of probabilities that it is at least possible that the
goal sought will be achieved through the means chosen.”58 He was of the view
that requiring unattributed health messages59 and prohibiting free distribution 6
met this test, and that a ban on lifestyle advertising would have met this test.6
He held, however, that the test had not been met for other types of advertising,
despite the low threshold articulated:
I therefore find that the Attorney-General did not discharge her burden of
demonstrating, based on a preponderance of evidence or balance of prob-
abilities, that it is either probable or possible that the law at issue … will
have any effect on the consumption of tobacco products.62
Brossard J.A.’s view was equally applicable to brand advertising (other
than lifestyle)63 and to informational advertising.6 He placed heavy reliance on
the trial judge’s conclusion about the absence of probative evidence.6
A. Standard of Proof
Numerous Supreme Court cases have held that the required standard of
proof may vary with the context.: The greater the objective, the lower the
‘6lbid. at 326.
57Ibid. at 323-25.
” Ibid. at 382.
59Ibid. at 383.
60Ibid.
61 Ibid. at 385-86.
,2Ibid. at 392.
‘ 3Ibid. at 384, 385, 388.
64Ibid. at 387.
Ibid. at 384.
“See e.g. Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1
S.C.R. 1123, 56 C.C.C. (3d) 65 [hereinafter Prostitution Reference cited to S.C.R.]; Oakes, supra
note 36; Irwin Toy, supra note 33; Rocket v. Royal College of Dental Surgeons of Ontario, [1990]
2 S.C.R. 232, 71 D.L.R. (4th) 68 [hereinafter Rocket cited to S.C.R.]; Peterborough (City or) v.
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standard. Further, the lesser the significance of the protected expression, the
lower the standard. As stated by Dickson C.J. in the Prostitution Reference:
[E]xpressive activity … should … be analysed in the particular context of
the case. Here, the activity to which the impugned legislation is directed is
expression with an economic purpose. It can hardly be said that communi-
cations regarding an economic transaction of sex for money lie at, or even
near, the core of the guarantee of freedom of expression.”
In this passage, “tobacco” could easily be substituted for “sex”. In Oakes,
the Court stated:
Within the broad category of the civil standard, there exist different degrees
of probability depending on the nature of the case …
Although the nature of the proportionality test will vary depending on the
circumstances, in each case courts will be required to balance the interests
of society with those of individuals and groups.6
In h-win Toy, the majority showed deference to the democratically elected
legislature in evaluating social science evidence and in mediating between
competing interests.6 In Rocket, the Court again recognized that infringements
of commercial expression would be easier to justify than infringements of other
forms of expression. 0 It is worth noting that tobacco advertising does not deal
with an underlying artistic activity, as was the case in Ramsden.7′
Given the jurisprudence, the Supreme Court will likely apply a reasonable
basis test, and perhaps a deferential one at that, when considering, for the
T.P.C.A., the rational connection under section 1.
In the United States, where the analysis used to justify restrictions on
commercial speech is similar to the section 1 analysis in Canada, the Supreme
Court has displayed deference
to the legislature when adjudicating on
commercial speech, as demonstrated in this leading case:
The Puerto Rico Legislature obviously believed, when it enacted the ad-
Ramsden, [1993] 2 S.C.R. 1084, 106 D.L.R. (4th) 233 [hereinafter Ramsden].
67 Prostitution Reference, ibid. at 1136.
6′ Oakes, supra note 36 at 137, 139.
6’ Irwin Toy, supra note 33 at 990.
7’Rocket, supra note 66 at 242, 247.
” Supra note 66. In that case, a municipal by-law prohibiting the affixing of posters to public
property was found unconstitutional because it did not restrict expression as minimally as was
possible. The accused, who was challenging the validity of the by-law, had affixed to hydro poles
posters advertising upcoming performances of his band.
1995]
R. CUNNINGHAM – R.J.R. MACDONALD
245
vertising restrictions at issue here, that advertising of casino gambling
aimed at the residents of Puerto Rico would serve to increase the demand
for the product advertised. We think the legislature’s belief is a reasonable
one, and the fact that appellant has chosen to litigate this case all the way to
this Court indicates that appellant shares the legislature’s view.
In both Canadian and American constitutional cases, a distinction could be
made between adjudicative facts and legislative facts. 3 David Lepofsky
describes the distinction in three ways. 74 First, adjudicative facts arise in the
courts (e.g. the terms of a contract or an accused’s blood-alcohol level) while
legislative facts arise in the law-making process. Second, adjudicative facts are
often more amenable to proof. Third,
legislative facts tend to be amorphous, dealing with such things as the na-
ture of society or of human nature. They involve the social sciences, such
as economics, sociology, psychology and criminology. In contrast, adjudi-
cative facts tend to be more in the nature of “hard facts”.”
In this light, the standard of proof necessary for legislative facts should be
less onerous than that for adjudicative facts. This is partly because much of the
evidence available to legislators may be found inadmissible in courts because
of hearsay. Such evidence could include published research and commentary,
opinions expressed by media editorials, or representations made by the public.
For example, during the trial, Chabot J. ruled inadmissible an examination of
the impact of tobacco advertising on consumption, the conclusions of which
were favourable to the government’s position.76
‘ Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328 at 341-
42, 92 L.Ed. (2d) 266 (1986) [emphasis added, hereinafter Posadas de Puerto Rico cited to U.S.].
7’ For further discussion on this distinction, see D. Pinard, “La rationalit6 legislative, une ques-
tion de possibilits ou de probabilit~s? Commentaire h l’occasion de l’affaire du tabac” (1994) 39
McGi L.J. 401.
‘ M.D. Lepofsky, “Litigating Charter Claims – Legal, Factual and Evidentiary Ammunition”
in Public Law Reference Materials, 35th Bar Admission Course Materials (Toronto: Law Society
of Upper Canada, 1993) at 10:17. See also P.W. Hogg, “Proof of Facts in Constitutional Cases”
(1976) 26 U.T.L.J. 386 at 394-95.
7- Lepofsky, ibid. at 10:17.
76 K.E. Warner, Selling Smoke: Cigarette Advertising and Public Health (Washington: Ameri-
can Public Health Association, 1986).
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B. Standard of Judicial Review
A separate issue concerns the appropriate standard for judicial review of the
Superior Court’s decision. In this case, the trial court was not a trier of fact in
the same way that it is in a civil or criminal case. In these latter cases, the trial
court is the trier of fact of first instance. Concerning the T.P.C.A., the same
critical issues were previously considered by the House of Commons and by
the Senate, including detailed hearings by committees of both legislative
chambers. Parliament concluded that dependence on tobacco products was a
consequence of tobacco advertising and this conclusion was subsequently
written into the T.P.C.A. 7
‘ As well, a detailed study on tobacco issues by the
House of Commons Standing Committee on Health, Welfare and Social Affairs
led to a report which included a recommendation to ban tobacco advertising.”
Chabot J. reviewed Parliament’s conclusion on a correctness basis,
seemingly without any deference to the legislature. The majority of the Court
of Appeal, in reversing the trial court, showed more deference to Parliament
than did the trial court, and the majority came to a different conclusion on the
evidence than did Chabot J. In contrast, Brossard J.A. cited civil cases in
support of his position that the rule of non-interference should guide appeal
courts with respect to the findings of fact of trial courts. “Only a manifest and
determinative error in the findings of fact by the trial judge can justify
intervention,” wrote Brossard LA., provided the error influenced the “final
conclusion or overall appreciation of the evidence.”79 On the question of the
impact of advertising on consumption, Brossard J.A. saw no error requiring his
intervention.
For the standard of judicial review, Brossard J.A. did not consider the
implications of the constitutional nature of the case at hand. It would be a
serious blow to democracy if a single trial judge could reverse the findings of
Parliament on complex social issues, and that trial judge’s decision could then
be insulated from judicial review.
C. Evidence of a Rational Connection
With respect for the contrary views of Chabot J. and Brossard J.A., there is
sufficient evidence to provide a reasonable basis for Parliament’s conclusion
that a ban on tobacco advertising would reduce tobacco use. Some of this
” Supra note 1, par. 3(b).
7
1 Supra note 26. This report was filed as Exhibit AG-94.
79RJR.-MacDonald (C.A.), supra note 4 at 362.
1995]
R. CUNNINGHAM – R.J.R. MACDONALD
247
evidence was referred to by the Court of Appeal. Much of it was not, however,
including the lengthy oral testimony and written submissions presented to the
House of Commons and Senate Committees which considered the T.P.C.A.
The very fact that large, respected national and international health
organizations are strong supporters of the T.P.C.A. is meaningful. The World
Health Organization, the Canadian Medical Association, the Canadian Cancer
Society, and many other organizations are at the front lines of tobacco control.
If the T.P.C.A. will have no impact on reducing consumption, then why would
health and medical bodies and their policy experts commit so much energy to
supporting the Act?
Tobacco companies argue that tobacco advertising can only affect market
share through brand choice. But non-smoking is a choice smokers can make;
indeed the market share for this option is increasing. Further, cigarettes must
now compete for market share with partial substitutes, namely nicotine gum
and the nicotine patch. As well, Wrigley’s positions its spearmint gum as an
alternative to smoking.
D. Tobacco Industry Marketing Documents
researched
targeted women,
Some of the best evidence of a rational connection between advertising and
tobacco use comes from tobacco industry documents.”0 These documents
provide unprecedented information about tobacco industry marketing practices.
The industry
teenage smoking behaviour,
advertised to teenagers, sought to position low tar and nicotine cigarettes as
safer for health, fostered positive images about a carcinogenic product,
provided reassurances about the social acceptability of smoking through
lifestyle advertising, and tried to stem the decline in tobacco consumption
through marketing.8’ The industry’s practices contrast with those of other
companies that recall products from the market (e.g. Perrier water or Tylenol)
when the risk of harm is relatively minimal.
It makes little sense that profit-driven tobacco companies would advertise
only to gain or defend market share, and would not advertise to prevent
smokers from quitting altogether. Why would companies not want to do so,
The Quebec courts did not have before them the marketing documents from Rothmans, Ben-
son & Hedges Inc., a company which chose to make its challenge before the Federal Court of
Canada. These documents might have provided further evidence.
” Documents evidencing these practices will be cited infra.
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especially since, in their view, no one has ever been harmed from smoking? In
1988, for example, only 11.7 per cent of smokers switched brands, yet 43 per
cent attempted to quit.12 Potential quitters represented a threat to tobacco
companies four times greater than did brand switchers. This is especially true
since a significant proportion of switching inevitably occurs among brands of
the same company. From a profit perspective, ignoring the threat posed by
quitting would be a large commercial mistake uncharacteristic of the tobacco
industry.
A section of one study done for Imperial Tobacco begins with the
introductory comment that “[t]he ability to reassure smokers, to keep them in
the franchise for as long as possible, is the focal point here.”83 In that study,
smokers are segmented into five groups: “Smokers with a Disease Concern”;
“Leave Me Alone”; “Pressured”; “Seriously Like to Quit”; and “Not Enjoying
Smoking/Smoking Less Now”. The following comment appears under the
category “Pressured”:
The final group of smokers does deserve particular attention as it is most
vulnerable to quitting and is in urgent need of reassurance and stroking. It
involves a similar proportion to the previous group [Leave Me Alone],
one-quarter of smokers and 10 percent of the adult population.”
A related study contained this passage under the heading “Unsuccessful
Quitters”:
Probably this is the most important group to examine. It is comprised of
people in turmoil in the final stages of smoking. The extent to which they
can be reassured and satisfied … has a major impact on the extension of a
viable tobacco industry.
Cigarette marketing involves the marketing of images and the promotion of
the general social acceptability of smoking:
Without price differentials and without easily perceptible product differ-
entiation (except for extremes, e.g. Matine versus Player’s) consumer
‘2 Exhibit AG-31, Imperial Tobacco Ltd., “The Canadian Tobacco Market at a Glance” (1989)
at 2.
Exhibit AG-21B, Creative Research Group Ltd., “Project Viking, Volume II, An Attitudinal
Model of Smoking, February-March 1986″ (prepared for Imperial Tobacco) at 31.
Ibid. at 33-34.
‘” Exhibit AG-21A, Creative Research Group Ltd., “Project Viking, Volume I: A Behavioural
Model of Smoking, February-March 1986″ (prepared for Imperial Tobacco) at 60.
1995]
R. CUNNINGHAM – R.J.R. MACDONALD
choice is influenced almost entirely by imagery factors. 6
All lifestyle images in Player’s ads will promote the social acceptability of
smoking where appropriate. Scenarios and settings for the lifestyle imagery
will be selected to invite the reader to associate a Player’s brand with a
pleasant peer group situation where product usage can be seen to be appro-
priate, acceptable and enjoyable.’
[The role of lifestyle images is to] [p]romote and reinforce social accept-
ability among the peer group to smoking as a relaxing, enjoyable self-
indulgence.”
duMAURIER (red) F’81 ADVERTISING STRATEGIES
1.
To continue to develop advertising that reflects a contemporary
quality image, by ensuring that all advertising reflects a contemporary, per-
haps even avant-garde, lifestyle and materialism to which the target market
would aspire to [sic].9
Clearly, marketing has been used to slow the decline in smoking. In the
mid-1980s, after overall industry sales had declined for several years, R.J.R.-
MacDonald decided to respond, as this passage indicates:
Key Issue #1 – Decline in Industry Volume …
Objectives
a) Achieve stability of industry volume by directing all business efforts,
including both our marketing and sales programs as well as our external
corporate relations, towards this end.90
To continue to prosper, the tobacco industry needs new smokers to replace
those who quit or die. Since relatively few adults begin to smoke, the industry
needs teenagers to do so. Imperial Tobacco’s media plans for 1980 outline the
target groups for each of the company’s brands. A weight was assigned to each
target group to determine, by means of a computer, in which magazines
advertisements would be placed. This method maximized the advertising
exposure
the
for the desired target groups. The following
table
lists
T Exhibit AG-204, Imperial Tobacco, “1971 Matinee Marketing Plans” at 7.
” Exhibit AG-29, Imperial Tobacco, (the apparent title is “Creative Guidelines”) at 3. Page
numbers indicated for this exhibit conform to those designated by the court.
” Ibid. at 13. This passage falls under the phrase “Role of lifestyle is to”. The list includes a
number of “roles”, only one of which is to cause brand switching and brand loyalty.
” Exhibit AG-35, Imperial Tobacco Internal Documents, Jacques Woods, “duMAURIER (red)
F’81 ADVERTISING OBJECTIVES” at 14 [F’81 denotes the 1981 fiscal year].
90 Exhibit RJR-14, R.J.R.-MacDonald Inc., “R.J.R.-MacDonald Inc. Area 1 – Canada 1985-
1987 Strategic Plan” at 25.
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demographic characteristics (including age, sex, and education). 9′ For some
brands, not only do target groups include adolescents as young as twelve years
old, but youths aged twelve to seventeen are weighted more heavily than are
older age groups.? The marketing document contains
the following
information:
Brand and advertising language Target Group and Weight
Player’s Filter – English
Player’s Filter – French
Player’s Light – English
Player’s Light – French
Men
12-17
18-24
25-34
35+
12-17
18-24
25-34
12-24
25-34
35+
12-17
18-24
25-34
Weight
1.0
1.0
0.7
0.0
1.0
0.9
0.7
1.0
0.7
0.0
0.8
1.0
0.6
Women Weight
12-24
25-34
35+
12-17
18-24
25-34
duMaurier – English
Men & Women 12-34
duMaurier – French
Men & Women 12-34
Matin6e – English
Smokers, Men & Women 18-49, Some H.S.+
Matin~e – French
Smokers, Men & Women 18-49
Matinee Extra Mild – English
Smokers
18-24
25-49
50-64
Weight
0.7
1.0
0.3
9′ Exhibit 1TL-13, Imperial Tobacco, “Fiscal ’80 Media Plans”. It is believed that “H.S.” is an
abbreviation for “high school”.
9 In 1980, the minimum age to be sold tobacco was 18 in Ontario and New Brunswick and 16
in the rest of the country (Minors’ Protection Act, R.S.O. 1980, c. 293; Act Respecting the Use of
Tobacco by Minors, R.S.N.B. 1927, c. 64; Tobacco Restraint Act, R.S.C. 1970, c. T-9). As well,
the industry’s voluntary code provided that advertising would not be directed to persons under 18
(C.TM.C. Code, supra note 31, Rule 7).
1995]
R. CUNNINGHAM – RJ.R. MACDONALD
Matinde Extra Mild – French
Smokers Weight
18-24
25-49
50-64
0.7
1.0
0.3
Cameo Family
Smokers, Women 18-49
Peter Jackson Extra Ught –
English and French
Smokers
Men
18-24
24-64
35-64
(Also
