Document(s) 15 of 37

The impact of tobacco advertising

When tobacco companies sell cigarettes, they are selling two main things. First, there is the physical product itself, the most important component of which is nicotine. Second, there is “imagery,” the intangible life-style characteristics created by marketing.

Few teenagers begin smoking for a cigarette’s inherent physical qualities. Instead, teens are attracted to smoking for its imagery attributes, such as the five S’s: sophistication, slimness, social acceptability, sexual attractiveness, and status. Marketing gives a cigarette a false “personality.” Imperial Tobacco explains that imagery attributes are “derived from product and package design or the association of a brand with certain advertising campaigns or sport or cultural activities.”^{[289, p. 28]} According to Imperial, the image of a cigarette brand “may be as important as the physical characteristics of the cigarette in satisfying consumer needs.”^{[289, p. 28]}

Different brands of cigarettes may be virtually the same physically, but it is marketing that gives them life and makes them attractive to different consumer target markets. Here is an excerpt from a report by Brazil’s Souza Cruz, a sister company to Imperial Tobacco:

The inspired person who designed the cigarette made it masculine in men’s hands; feminine in women’s hands. Sophisticated among the sophisticated; rough among the rough. To the young, a token of rebellion; to the elderly, a tool of quietness . . . a warm ally in the moments of action and a solitary companion during reflection.^[247]

It is easy to understand why health organizations strongly oppose tobacco advertising. The portrayal of an addictive, carcinogenic, and lethal product as innocuous and even desirable is simply incompatible with responsible public health. There is as much justification for promoting tobacco as there would have been for promoting rats during the Plague. It is not possible to prohibit cigarettes altogether, because of addiction, but it is possible to prevent the use of imagery to make cigarettes more attractive.

Tobacco advertising can increase consumption in a number of possible ways. Advertising can encourage nonsmokers to start, perhaps earlier than would otherwise be the case. Advertising can induce ex-smokers to start again or to remain smoke free for shorter periods. Advertising can persuade consumers to get their nicotine from a tobacco product instead of from a nicotine alternative such as nicotine gum or a nicotine patch. Advertising can increase the amount smoked daily and can discourage or delay quitting. As part of this, advertising can enhance the social acceptability of smoking. Advertising can stimulate price competition, leading to lower prices and consequently higher sales volumes. Advertising can induce consumers to switch to a lower priced product instead of quitting or cutting down.

Advertising can buy silence by influencing news content in the media. On numerous occasions smoking and health articles have been suppressed or edited to avoid offending tobacco advertisers.^[628] The result is a public without the full knowledge necessary to make informed decisions about smoking. An American study covering the periods 1959–69 and 1973–86 found that magazines without tobacco ads were 43% more likely to cover smoking and health than those that did not. Among women’s magazines, the likelihood was 234%.^[623] The following 1979 excerpt from The Ottawa Citizen illustrates how the industry can inflict financial punishment on those media who discourage smoking:

Imperial Tobacco Ltd. has pulled the balance of its June and July advertising from The [Ottawa] Citizen in the wake of an intensive stop-smoking campaign launched by the newspaper June 9. . . .

Imperial marketing vice-president Anthony Kalhok, in a telephone interview Tuesday from Montreal, said he was ‘surprised’ The [Ottawa] Citizen’s sales department hadn’t called his department to ‘let us know you were running this type of campaign and ask us in advance if we wanted to run our ads during that time. Some papers do that and I’m just surprised that someone didn’t tell us in advance that you were planning to run a series of articles’.

Kalhok refused to explain the reasoning behind the company’s decision. ‘We don’t ask you to explain or justify your editorial content, so I don’t see why we have to answer any questions. We don’t have a contract that says we have to run an ad simultaneously in all newspapers in one city, or in all cities across Canada at the same time’.^[411]

The October 1984 issue of Chatelaine had a feature on cancer, a further article on smoking, and no tobacco ads. The magazine had informed advertisers in advance, and no tobacco advertising was placed, even though tobacco ads had regularly appeared in the magazine.^[132]

Concern about the influence of advertisers is not new. During the 1903 House of Commons debate about banning cigarettes, MP Bickerdike made these observations:

Heretofore many of the papers have been very generous in commenting editorially in favour of the movement against cigarettes. But now I notice that in some of them are appearing long articles stating that cigarettes are quite harmless, and really nourishing and beneficial. Of course there is no hint that these articles are advertisements, and that the space is paid for, probably by some one interested in the tobacco trust. One of the editors being asked about it, answered: Well, we get higher rates than we do for ordinary advertising matter.^[42]

Cigarette advertising can neutralize health concerns or can at least affect perceptions of the severity of the risks. Advertisements portray energetic and happy young people, often engaging in athletic, healthy activities. Teenagers want to be like the people in tobacco ads, and they want to participate in the activities shown in the ads. It is no accident that many ads feature backdrops of the pristine outdoors. These positive images counter negative images such as lung disease and cancer.

The industry’s position is that advertising only affects a company’s market share by influencing smokers to select a particular brand and that there is no proof that advertising increases overall consumption. This position is nonsense. If advertising did not affect overall consumption, the industry would not oppose a ban on advertising. Companies could save tens of millions of dollars annually without fear of a new or existing competitor using advertising to take away market share. In the United States, more than US $6 billion is spent annually on tobacco advertising and promotion.^[169] Yet despite this potential opportunity for dramatically increased profits through cost savings, the industry is fervently opposed to a ban on tobacco advertising.

The US Surgeon General^[608] and the US Food and Drug Administration^[611] are among those who have examined the evidence and concluded that tobacco advertising does increase overall consumption. The World Health Organization (WHO) is a strong supporter of a total ban on advertising.^[639] In countries like Japan, Austria, and Cameroon, where in the past there has been only one tobacco company (a monopoly), tobacco advertising has continued.^[99] This is irrefutable evidence that advertising is used to affect more than market share.

Campaign to ban advertising regains momentum

In Canada, after the failed 1971 attempt to ban advertising, health groups were not actively pressing for a ban. A small breakthrough occurred in 1979, when NSRA, led by Executive Director Gar Mahood, mounted a successful campaign (opposed by the industry) that resulted in the Toronto Transit Commission voting to refuse tobacco ads. In 1980, the Hamilton – Wentworth Transit Commission made a similar decision.

In 1983, the Fifth World Conference on Smoking and Health was held in Winnipeg. David Nostbakken, Chair of the Conference, recalls that “the conference really helped to send a message to the federal government just how important tobacco issues were.” Although the conference nearly left CCSH (the organizer) bankrupt, it did raise the profile in Canada of smoking issues.

Later in 1983, NSRA, CCS, CCSH, and the Canadian Heart Foundation formed the Coalition of Health Interests to oppose RJR – Macdonald’s Export “A” sponsorship of amateur skiing. The Canadian Ski Association’s Medical Committee opposed the tobacco sponsorship, and the issue developed into a media controversy. Dr Andrew Pipe sat on this committee, and it was through his involvement on this issue that Physicians for a Smoke-Free Canada was later formed. The antisponsorship effort was given a boost when Olympic skiers Ken Read and Steve Podborski each refused to accept awards for their performance in the Export “A” Cup, the name given to the national championships.

Although the campaign failed to block the sponsorship immediately, in 1984 Health Minister Monique Bégin joined with the Sports Minister to announce that the government planned to end tobacco sponsorship of amateur skiing eventually.^[132] The following year, Sports Minister Otto Jelinek announced that amateur sports organizations that wished to receive federal funding would not be able to accept any new tobacco sponsorships.^[408] The best outcome of the ski sponsorship campaign was that health groups gained experience working together as a coalition. Other collaborative efforts followed, including a news conference in 1984 to urge newspapers to refuse tobacco ads. Health groups said such advertising violated a rule of the Canadian Code of Advertising Standards, which stipulated that no advertisements should encourage unsafe or dangerous practices. In reply, the advertising industry, which is responsible for the Code, revised the rule to make it clear that tobacco advertising could continue. Although this was not a surprise, it made it clear that the advertising industry was not willing to eliminate tobacco advertising through self-regulation.

In 1984, the tobacco industry strengthened its voluntary code by requiring the health warning to appear on cartons in addition to packages, on packages of imported cigarettes, and on billboard advertising. The text of the warning was unchanged, and the size of the warning on billboards often made the message unreadable except at close range.

In 1985, the federal Department of Agriculture wanted to establish a Canadian Flue-Cured Tobacco Marketing Agency that would subsidize farmers and promote leaf-tobacco sales. Health groups banded together to fight the plan. The proposal was eventually dropped, and health groups gained more lobbying experience.

Throughout this period, NSRA was leading a campaign to persuade newspapers to voluntarily refuse tobacco advertising. The Kingston Whig-Standard, a small but award-winning Ontario newspaper, set a precedent when it decided in October 1984 to do just that. A couple of small publications followed. In August 1986, the country’s most important English-language newspaper, the Globe and Mail, followed suit. The Globe’s announcement forced policymakers and other media to sit up and take notice. These decisions gave a major boost to efforts to ban tobacco advertising.

When Jake Epp became Health Minister in 1984, he took a more determined position against tobacco advertising than his predecessor. In 1985, Epp wrote to Imperial Tobacco asking that ads be removed from the premises of Canada’s Wonderland and from the theme park’s official guidebook. Stated Epp, “Many citizens, including myself, have concluded that these cigarette advertisements are being addressed to persons under eighteen, in contravention of [the code].”^[164]

Early in 1986, RJR – Macdonald launched a new cigarette brand called “Tempo.” Tempo advertising featured youthful-looking models wearing “cool” clothes. Although the company denied the brand was targeted at youth, health groups quickly condemned the company for attempting to do just that. Health Minister Epp publicly criticized Tempo advertising several times and called on the company to stop the campaign. Eventually, Tempo was taken off the market, although it is unclear whether poor sales or public pressure was the main reason for the decision. A marketing study done for the company later revealed that the reasons for poor sales included the fact that Tempo advertising was perceived as too explicitly youth-oriented to be successful in the 18–24 age group.^[495]

The controversy over Tempo advertising highlighted the inadequacy of the industry’s voluntary code. Over the years, the industry simply rejected requests by the Department of Health and Welfare to strengthen the code if it did not like the proposed changes. For example, in 1980 an attempt to have carbon monoxide levels listed on the package ended up with the manufacturers merely undertaking to lower the levels without printing anything on the package. In 1982 an attempt by Health Minister Bégin to ensure that there was 500 metres between ads and school property was never implemented. When further restrictions to the code were accepted by the industry, the changes were typically minor and had been years in the works.

Violations of the code usually went unaddressed. When Bégin wrote to CTMC requesting that ads appearing on closed-circuit television be removed, CTMC replied with an alternative interpretation of the code: the ban on television advertising did not apply to closed-circuit TV. When the public and Bégin complained about ads placed within 200 metres of schools, as the existing code prohibited, the industry placed the blame on advertising agencies and billboard companies.

Meanwhile, the industry maintained that the code was working well. Indeed, from its perspective, the code clearly was effective. The industry had ample opportunity to promote its products as it saw fit while pointing to self-regulation to indicate that heavy-handed legislation was unnecessary.

The increasing public support for a ban on tobacco advertising, coupled with a health minister who had taken a hard line on advertising, prompted the industry to propose further self-regulation in an effort to pre-empt discussion of legislative action. CTMC wrote to Epp in early 1986 regarding the code:

From time to time, the four member companies of the Canadian Tobacco Manufacturers’ Council review the industry’s Advertising and Promotion Code. . . . We believe that this is an appropriate time to examine the present Code and determine what, if any, changes should be considered.^[393]

Over the next 6 months, Epp and the industry met a number of times and exchanged letters. Epp expressed his displeasure with violations of the code and indicated he was seeking major improvements to code provisions. The industry rejected many of his proposals, including the premise that all advertising would be prohibited except what was explicitly permitted. Eventually, Epp decided that the voluntary approach would not work and that legislation was necessary.

Epp was helped by the increasing number of representations made to government by health groups and the public. In January 1986, NSRA released “A Catalogue of Deception,”^[442] a report that outlined violations of virtually every major rule in the code. This comprehensive brief documented how self-regulation by the industry was completely ineffective. The brief also noted that a manufacturer could simply opt out of the code, just as Rothmans of Pall Mall did in 1985. As well, because only manufacturers, not members of the public, could file complaints, obtaining effective enforcement was illusory indeed. The brief proved to be a particularly valuable reference. It rebutted industry arguments that legislation was unnecessary because, according to the industry, the Code had “operated responsibly and in the public interest” for 22 years.^{[255, p. 2]}

Additional initiatives increased the pressure to take action on tobacco. In 1986, Air Canada announced that it would have some smoke-free flights in the Ottawa – Toronto – Montreal triangle. NSRA and the Society of Obstetricians and Gynaecologists filed an unfair business-practice complaint with the Ontario government, alleging that tobacco manufacturers were “withholding material facts” about the dangers of smoking during pregnancy.^[132] No action was taken on the complaint. Physicians for a Smoke-Free Canada filed an application in Federal Court to force the federal Minister of Consumer and Corporate Affairs to add tobacco to the Hazardous Products Act, an application that was unsuccessful. NSRA placed full-page ads in 23 newspapers, calling on the government to treat tobacco as it would any other addictive, lethal product. Maureen Law, then Deputy Health Minister, later recalled “that non-government organizations created a climate where it would be difficult for the government to not ban tobacco advertising.”

What really made the difference, though, was Bill C-204, the Non-smokers’ Health Act. This private-member’s bill, introduced in the House of Commons by MP Lynn McDonald (NDP) in October 1986, proposed to restrict smoking in federally regulated workplaces, as well as on planes, trains, and boats. The bill placed tobacco under the Hazardous Products Act, thereby prohibiting all advertising and sales except what was permitted by regulation.

Normally, private-member’s bills have almost no chance of being passed by the House of Commons, but parliamentary reform improved the odds. Bill C-204 was drawn as one of 20 items in a lottery of about 150 private-member’s bills and motions. A committee then selected 6 of the 20 items to be votable. Bill C-204 was one of the six. The Bill received five separate hours of debate over the next 5 months. Health groups lobbied MPs to support it. As support grew, Epp used Bill C-204 behind the scenes to gain support in Cabinet and caucus for the government’s introducing its own bill to prohibit tobacco advertising.

On 22 April 1987, just 10 days before Bill C-204 was scheduled for a second-reading vote, Epp announced that he would soon be introducing a bill to ban tobacco advertising and sponsorships and to require rotated health warnings. The government also announced that smoking would be prohibited in the federal public service and that the Labour Minister would restrict smoking in other federally regulated workplaces. Health groups were jubilant. The industry denounced the government. It was quite a fight to introduce Epp’s legislation, Bill C-51, the Tobacco Products Control Act (TPCA), but that was nothing compared with the battle to come.

The Parliamentary campaign over Bill C-51 and Bill C-204

Although Bill C-204 obtained second reading shortly after Bill C-51 was introduced, Bill C-51 quickly got a much higher profile. The tobacco industry initiated a massive, multifaceted $2.5 million campaign to oppose Bill C-51. The industry retained The Houston Group, a PR firm, which put together an information kit to help generate a letter-writing campaign against Bill C-51. A major ad campaign was launched to create public opposition to the Bill (Figure 7). Imperial Tobacco held news conferences in various parts of Canada threatening to withdraw its sponsorship of locally held sporting events. As a test case, 15 000 letters were sent to homes in the riding of Toronto-area MP John Bosley.

In opposing a ban on tobacco advertising, the industry argued that the ban was an unconstitutional infringement of freedom of expression, that the ban would not reduce smoking, that arts and sports groups would lose funding, and that thousands of jobs in the advertising industry would be lost. As well, because advertising for brands in American magazines would be exempt from the ad ban, the Canadian industry argued that American cigarettes would gain market share in Canada, especially with the pending implementation of the Canada –USA Free Trade Agreement. Jobs in the Canadian tobacco industry would be lost, it was claimed. In response to this point, health groups noted that American cigarette imports represented just 1% of the Canadian market. Health groups also pointed out that American cigarettes used a different type of tobacco and did not taste the same as Canadian cigarettes.

Figure 7. Sample advertisement placed by the industry to oppose Bill C-51.

To help oppose the Bill, RBH retained the PR firm Burson-Marsteller. This firm put together Coalition 51, a group of academics, artists, and sports figures opposing the Bill. The group was launched with slick same-day, satellite-linked news conferences in Toronto and Montreal. Health advocates attending the Toronto conference informed the media of the presence of Cynthia von Maerestetten, RBH Corporate Affairs Vice-President. Exposing the fact that the tobacco industry was behind Coalition 51 dramatically decreased the impact of this initiative opposing the Bill.

As part of the industry’s campaign, retailers and others were sent letters and prestamped envelopes that they could simply sign and mail to their MP. The letters were designed to appear as if the retailer was the author: for example, the retailer’s return address was included. Letters were made to look different in form, text, colour, and paper, all varied by automated equipment. Retailers received up to three follow-up calls to ensure that the letters got sent in. Many letters were sent in, and the industry’s attempt to create an impression among MPs of grass-roots opposition to the Bill was succeeding.

By the end of the summer of 1987, support for Bill C-51 was slipping. The Bill had been publicly criticized by the Agriculture Minister and the Sports Minister.^[132,551] Liberal health critic Sheila Copps said the letters she received were 9 to 1 against Bill C-51. Epp’s initial plan to have the Bill passed within 2 months proved to be wishful thinking. He informed health groups that unless their campaign was stepped up, the Bill would not pass, despite the large majority the government had in the Commons and despite support from opposition parties.

The health lobby had been planning a campaign and went into high gear. Health groups emphasized that a ban on advertising would reduce smoking, especially among youth; they rejected industry forecasts about the economic harm the Bill would cause; and they said that in any event public health must come first. The CMA announced that it would ask its 48 000 member physicians to vote against any MP opposing the Bill.^[77] Doctors were asked to call their MPs.^[78] NSRA published full-page ads outlining support for the Bill within the cultural community. NSRA also prepared a pamphlet, “Give Kids a Chance.”^[424] Physicians for a Smoke-Free Canada launched a small-scale radio campaign in Toronto. CCS and the Canadian Public Health Association initiated meetings with more than 25 MPs. CCS announced that it would ask its volunteers to send MPs 35 000 black-bordered cards asking for speedy passage, one card for each person who died from tobacco-related causes each year. The Ottawa Citizen^[24] and the Montreal Gazette^[409] announced that they would no longer accept tobacco ads. Fifteen health groups blitzed the office of the Government House Leader with phone calls asking when Bill C-51 would be brought forward. CCS released a Gallup poll showing that 62% of Canadians supported an ad ban and only 30% were opposed.^[189]

An important part of the campaign occurred when NSRA exposed the phony letter-writing campaign involving retailers. After obtaining copies of the letters and documenting accounts of how people were being urged to send the letters in, NSRA informed the media and MPs of how the flood of letters opposing the campaign was in fact orchestrated by the tobacco industry.^[443,444] NSRA’s initiative undermined the effectiveness and credibility of the letters opposing Bill C-51.

Neil Collishaw, who at the time was the key official on tobacco issues inside Health and Welfare Canada, later recalled that the preparation of “A Catalogue of Deception,” the unmasking of Coalition 51, and the unmasking of the phony letter campaign were “three examples of outstanding lobbying efforts.”

As health groups stepped up their campaign, government ministers were feeling the heat. In particular, the full-page ads and the phone calls from doctors had an impact. The total number of letters on tobacco or smoking received by the Health Minister in the first 10 months of 1987, regardless of viewpoint, was 5 499, up from 1306 in 1986 and 92 in 1982.^[112] Finally, Bill C-51 received second reading on 23 November 1987 and was sent to the committee studying Bill C-204.

Committee hearings on Bill C-204 had been ongoing for several months. One of the Conservatives on the Committee was Ron Stewart, a tobacco wholesaler and former Chairman of the National Association of Tobacco and Confectionery Distributors. He had opposed his own party’s Bill C-51 at second reading.^[132] NSRA and CCS held a news conference in Stewart’s constituency, arguing that he had a conflict of interest.^[144] A circular was sent to homes in his riding with the message that he was not properly representing his constituents because of the conflict of interest. Shortly thereafter, Stewart stopped serving on the Committee.

The lobbying battle continued before the Committee. Health groups wanted Bill C-51 strengthened, and the industry wanted the opposite. The hearings were often testy, with MP Chris Speyer (Conservative) opposing the thrust of the Bill, and MPs Copps (Liberal) and McDonald (NDP) strongly supporting it. Conservatives Arnold Malone and Paul McCrossan were also strong supporters. Much of the debate centred on whether an ad ban would reduce consumption. The industry and health groups both brought in experts to help make their respective cases. Sports groups receiving sponsorship testified that they would be unable to replace industry support. The advertising industry protested the loss of revenue and jobs. Throughout the hearings and the debate generally, the industry tried to position the issue as one of freedom, whereas supporters tried to position the issue as one of health.

To strengthen the industry’s hand, Bill Neville was brought in as the new President of CTMC. Neville was the consummate well-connected political insider. He had been Chief of Staff to former Conservative Prime Minister Joe Clark, a Conservative strategist in the 1984 election campaign, and then part of the transition team for the newly elected government of Prime Minister Mulroney. Neville was personally close to the Prime Minister.

Health groups were worried about how this development might affect passage of the ad ban. Part of the response was a full-page ad published in the Globe and Mail. This controversial ad, drafted by NSRA, revealed the “Neville Factor” (Figure 8) and came at a time when the Prime Minister had been under significant criticism for giving special treatment to his friends. Failing to pass the Bill would open the government to more criticism.

Figure 8. The Neville ad.^[22]

Bill C-51 made it through Committee substantially intact, and no amendments were made that would gut the Bill. Some amendments strengthened it, such as creating authority to require package inserts of detailed health information. Bill C-204 was also approved and sent back to the House of Commons, with the added proviso that if Bill C-51 passed, the part of Bill C-204 that would ban tobacco advertising would be of no effect. However, the battle was still not over. Epp remained firmly in support, but most of the Cabinet remained opposed. Even though both opposition House Leaders had promised to permit the Bill to pass with little debate, and even though there were days when the Commons ended early because there was no business before it, the government did not bring Bill C-51 up for third reading.

Eventually, health groups stepped up their lobbying in support of final passage. Time was running out. The government was expected to call an election in the fall, and if Bill C-51 was not passed before the summer recess, the Bill might die.

Meanwhile, over a number of months, third-reading debate over Bill C-204 was proceeding. The Bill was scheduled for a vote of final approval on 30 May 1988. The government rescheduled the vote to the next day so that its own Bill C-51 could be brought forward and passed and McDonald’s Bill C-204 could be defeated.

May 31 proved to be a critical lobbying day. Several health lobbyists (including NSRA’s Mahood, David Sweanor, and Gabriel Durocher; CCSH’s Victor Lachance; and CCS’s Ken Kyle and David Hill) waited outside the Commons and urged arriving MPs to support both bills. Malone and McCrossan lobbied fellow MPs to either support Bill C-204 or stay away. When a rumour spread that the two bills were incompatible and could not both be passed, health representatives worked with Malone to prepare a short statement that the bills were indeed fully compatible.^[378] The statement was signed by Malone, copied in McDonald’s office, and distributed to MPs.

The lobbying worked. Malone said that at the start of the day more than enough MPs to approve or reject the Bill were undecided. In the end, Bill C-204 passed by a vote of 77 to 58, with all Cabinet ministers in the House voting against it; Epp was absent. Just nine MPs voting differently would have changed the outcome. Many government backbenchers, who felt the government was not paying enough attention to them, asserted their independence by supporting the opposition bill. Bill C-51 was also approved with all-party support, thus giving health groups a double reason to celebrate. Epp was present for the passage of Bill C-51.

However, the battle was not yet over. Press reports indicated that the industry would turn its attention to the Senate, of which Rothmans Chairman, William Kelly, was a member. Health groups launched a letter-writing campaign. The fight would not be long, though: both Bill C-51 and Bill C-204 were passed within 4 weeks. Victory was at hand (see Figure 9). The Globe and Mail reported that Epp praised health groups:

‘That was based on one of the best lobbying efforts ever seen on Parliament Hill’, Mr. Epp said, adding that the lobby that fought on behalf of the two bills was remarkable for its cohesiveness, its broad base of support and its effectiveness.

Figure 9. Gathering in the Parliament buildings 28 June 1988 following Royal Assent of Bills C-51 and C-204. Left to right: Ken Kyle and David Hill, Canadian Cancer Society; Senator Stanley Haidasz; Neil Collishaw, Health and Welfare Canada; Lynn McDonald, MP; Byron Rogers, Health and Welfare Canada; Jake Epp, Minister of National Health and Welfare; Gar Mahood, Non-Smokers’ Rights Association; Victor Lachance, Canadian Council on Smoking and Health; David Sweanor and Gabriel Durocher, Non-Smokers’ Rights Association. Present but not in picture: Gweneth Gowanlock, Legislative Assistant to Jake Epp; Cynthia Callard, Legislative Assistant to Lynn McDonald; Rob Cunningham, Canadian Cancer Society.

‘If you’re looking at a strategy, I think what happened was a strategy whereby the traditional manner the tobacco lobby entered this fray didn’t work’, he said. ‘They were outgunned, they were outmuscled, and quite frankly they were outfinessed’.^[183]

The critical role of Lynn McDonald’s Bill C-204 should not be underestimated. At every step in the legislative process, Bill C-204 preceded Bill C-51 and placed significant pressure on the government to move the government’s Bill forward.

Some time in the months after the TPCA was passed, the Privy Council Office tried to get the Department of Health and Welfare to hire von Maerestetten, who had been RBH’s spokesperson, as the Department’s head of communications. Health and Welfare steadfastly refused. At a minimum, the recommendation to place a former tobacco-industry apologist in the Health Department showed the government’s lack of sensitivity to the tobacco issue.

Illegal advertising

When the tobacco industry’s voluntary code was in place, violations by tobacco companies were commonplace. Even after restrictions on tobacco advertising became law, the industry’s behaviour was hardly exemplary. Tobacco manufacturers were responsible for numerous violations of the Act, but only a few charges were laid, and none of these charges had made it to trial by the end of 1995. Examples of violations included placing large displays of packages at retail when the packages were not intended for sale; placing tobacco ads at retail, when such ads were not allowed; placing promotional inserts in packages for a new brand; using cigarette brand names on nontobacco goods such as lighters and cigarette papers; including free calendars with cigarettes; and placing price-discount information on packages when such extraneous information was not permitted.^[131] Notwithstanding this list, the companies maintain that they have always been in full compliance with the TPCA, sometimes (but not always) providing alternative interpretations of the Act.

Economic consequences of the advertising ban

The TPCA made significant progress toward reducing tobacco promotions, despite problems with illegal advertising and the far bigger problems with sponsorship promotions (see Chapter 8). Despite dire forecasts of the devastating economic impact that would be caused by Bill C-51, no such adverse impact ever materialized. Seven years after the Act was passed, industry profits stood at record levels. Despite American cigarette ads continuing to appear in American magazines, imports from the United States actually went down, with sales at less than 1% of the overall market.^[560] Though CTMC had told a parliamentary committee in 1987 that Bill C-51 threatened up to 25 000 Canadian jobs,^[86] there is no credible evidence that the TPCA has been responsible for any job losses.

Advertising firms did not suffer the disaster that had been predicted. In 1995, the President of the Outdoor Advertising Association of Canada, Bob Reaume, wrote a letter to the editor of Marketing magazine, stating that

the Tobacco Products Control Act was arguably one of the best things to ever happen to our industry. It so drove our members to develop other advertising categories that, today, packaged goods clients, not tobacco, are our largest spending group, and the loss of tobacco revenues has been completely recouped and then some.^[482]

Canadian Advertising Foundation Vice-president Suzanne Keeler told Kentucky’s [Louisville] Courier-Journal that ad agencies had not suffered either. “There was concern . . . that if ads for this product are banned it would lead to other bans,” she said, adding that so far that had not happened.^{[635, p. 4]} The Chairman of Magazines Canada, which represents the magazines with the largest circulation, said the ad ban “wasn’t calamitous.”^{[635, p. 4]}

Industry begins legal challenge

Having been defeated in Parliament, the industry quickly shifted its attack to the courts. Within 10 weeks of parliamentary passage of the TPCA in 1988, all three companies had filed separate challenges to the Act. RBH launched a claim in the Federal Court, claiming that the Act was an unconstitutional infringement of freedom of expression as protected by the Canadian Charter of Rights and Freedoms and that the Act infringed on the authority of the provincial governments. CCS applied for and was given status as an intervenor, a role opposed by RBH.

This case never got off the ground, however. Instead, the legal dispute focused on the cases filed in the Quebec Superior Court by RJR – Macdonald and Imperial Tobacco. The position of these companies was similar to that of RBH, except that RJR – Macdonald also asserted that the health warnings were unconstitutional. RJR – Macdonald argued that it was being forced to say something with which it disagreed and that the warnings should be attributed to the government. The tobacco companies and their platoon of high-priced lawyers had been preparing for months. In contrast, the government was initially poorly prepared to defend the law, having been preoccupied with both the passage of the Act and the drafting of regulations under it. Tobacco companies tried a procedure to get a quick judgment, but that failed. The government now had more time to prepare its case.

An attempt by CCS to obtain intervenor status in the Quebec cases was rejected by Jean-Jude Chabot, the judge assigned to hear the case. Chabot had described parts of the CCS declaration in support of its position as smacking of a “puritanism and intolerance that is relentlessly irritating.”^{[308, p. 560]}

The Imperial Tobacco and RJR – Macdonald cases were heard together. The trial took 13 months. There were 28 witnesses (mostly experts) and more than 10 000 pages of testimony. The 560 exhibits were lengthy enough to fill a floor-to-ceiling bookshelf.^[505] Walking into the courtroom, one would see filing cabinets lining both sides. Six lawyers were visibly working for the industry at one time, some with laptops; other lawyers came in on other days, depending on who the witnesses were. Some lawyers, including Americans, were in the back of the room, and other lawyers had a role to play elsewhere. The government responded with its own team of lawyers from both the Department of Justice and the private sector.

As part of the trial process, the government had access to tobacco-company marketing documents. The small fraction of these that made it onto the trial record, and thus into the public realm, provided unprecedented insight into tobacco company strategies. Government lawyers used these documents to contradict industry claims that they do not direct advertising to young people and that advertising does not seek to increase smoking.

Project Viking, a 1986 report prepared for Imperial Tobacco, talks explicitly in the foreword about expanding the market:

Background and Objectives

It is no exaggeration to suggest that the tobacco industry is under siege. The smoker base is declining, primarily as a function of successful quitting. And the characteristics of new smokers are changing such that the future starting level may be in question. . . .

Within this somewhat alarming view of the mid-term program, Imperial Tobacco is embarking on a proactive program. Perhaps for the first time, the mandate under consideration is not limited simply to maximizing ITL franchises; it is now to

include as well serious attempts to combat those forces aligned in an attempt to significantly diminish the size of the tobacco market in Canada.

This is the underpinning of Project Viking. There are, in fact, two components of the program, each having its own purposes, but also overlapping with the other in informational areas:

• Project Pearl is directed at expanding the market, or at very least forestalling its decline. It examines attitudes and issues with the potential to be addressed via advocacy. It also looks at the needs of smokers specifically.
• Project Day represents the tactical end by which ITL may achieve competitive gains within the market of today and in the future. Unmet needs of smokers that could be satisfied by new or modified products, products which could delay the quitting process, are pursued.^{[124, pp. 1–2]}

One section of volume II of Project Viking begins “The ability to reassure smokers, to keep them in the franchise for as long as possible, is the focal point here.”^{[125, p. 31]} Smokers are classified in five groups: “Smokers with a Disease Concern,” “Leave Me Alone,” “Pressured,” “Seriously Like to Quit,” and “Not Enjoying Smoking/Smoking Less Now.” Under “Pressured,” the following appears:

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.^{[125, pp. 33–34]}

In volume I, the following appears under “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.^{[124, p. 60]}

In the mid-1980s, RJR-Macdonald also decided to fight back against declining tobacco industry sales:

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.^{[494, p. 25]}

Excerpts from other documents of both companies indicate how important advertising is to maintaining the social acceptability of smoking:

Without price differentials and without easily perceptible product differentiation (except for extremes, e.g. Matinée versus Player’s) consumer choice is influenced almost entirely by imagery factors.

— Imperial Tobacco Ltd, confidential “1971 Matinée Marketing Plans”^{[292, p. 7]}

When image advertising [for Player’s Filter] is used in response to specific regional strategies, creative will continue to reflect a lifestyle realization of youthful self-expression, independence and freedom with subject matter that is particularly relevant to young males [emphasis in original].

— Imperial Tobacco Ltd, “Creative Guidelines,” circa 1979^{[294, p. 5]}

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 appropriate, acceptable and enjoyable.

— Imperial Tobacco Ltd, “Creative Guidelines,” circa 1979^{[294, p. 3]}

Role of lifestyle is to

. . . Promote and reinforce the social acceptability among the peer group to smoking as a relaxing, enjoyable self-indulgence [emphasis as in original].

— Imperial Tobacco Ltd, “Creative Guidelines,” circa 1979^{[294, p. 13]}

The Export smoker must also be constantly reassured that it is alright to smoke. Especially Export [emphasis as in original].

— RJR – Macdonald Inc., “Export Family Draft Brand Positioning Statement,” 1986^{[496, p. 2]}

du Maurier (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, perhaps even avant-garde, lifestyle and materialism to which the target market would aspire to.

— Imperial Tobacco Ltd, “du Maurier Trademark [Fiscal] ’81 Advertising”^{[307, p. 14]}

Advertising Objectives [Player’s Filter]

1. To communicate that the brand is for those who make their own choice about what they do, for people who want to assert their own individuality, and who are seeking a more independent lifestyle.

— Spitzer, Mills & Bates, “The Player’s Family: A Working Paper Prepared for Imperial Tobacco,” 1977^{[554, p. 13]}

When Justice Chabot rendered his judgment on 26 July 1991, these excerpts were not discussed anywhere in his reasons.^[500] To the shock of health groups, Chabot declared the TPCA unconstitutional and accepted each of the industry’s arguments. Chabot ruled that the ban on tobacco advertising infringed constitutional protection of freedom of expression and that the infringement could not be justified as a reasonable limit. He also decided that a tobacco advertising ban was a provincial responsibility and could not be implemented by the federal government. He further ruled that the health warnings were unconstitutional because they unjustifiably violated tobacco manufacturers’ right to silence.

Health groups immediately called on the government to appeal, and many health organizations from outside Canada wrote to the Prime Minister with the same request. Within a few weeks, the government filed an appeal. Nevertheless, an elated industry was claiming victory on all fronts. The industry wasted no time in publicizing the court’s ruling around the world, including in the European Union, where a tobacco advertising ban was being considered. When boasting about the decision, the industry failed to mention that the judgment was under appeal or that the advertising ban remained in force pending the appeal.

On 15 January 1993, the Quebec Court of Appeal reversed the trial court decision.^[501] By a majority of 2 to 1, the court decided that the ad ban was a reasonable limit on freedom of expression because the government had provided sufficient evidence that a ban on advertising would reduce smoking. Unanimously, the court ruled that the health warnings were constitutional and the ad ban was within federal authority. This time, it was health groups that were overjoyed.

The Supreme Court of Canada

The industry appealed to the Supreme Court of Canada, and the case was heard in November 1994 before a full court of nine judges. Over the objections of the industry, five health groups were collectively given intervenor status in the case.

When the case was argued in the Supreme Court, the tobacco industry had seven lawyers in gowns. On top of this, another 15 or so industry lawyers and PR representatives from Canada and the United States kept an eagle eye on the proceedings from the back of the room. The industry was present with a small portion of its usual “wall of flesh.” On the other side of the courtroom, the government had five lawyers of its own. Health groups had three. Seated behind them were a dozen representatives of health organizations. Clearly, both sides recognized that a lot was at stake.

The Supreme Court released its judgment on 21 September 1995.^[503] The court unanimously ruled that a ban on tobacco advertising was within federal responsibility and was not exclusively a provincial responsibility. However, and more important, the Court ruled by a narrow 5 to 4 decision that the ban on tobacco advertising was an unjustified infringement of the Canadian Charter of Rights and Freedoms.

The majority held that the objective of reducing smoking was a valid objective and that because advertising could increase consumption, a ban on tobacco advertising advanced the government’s objective. However, the majority held that the government had failed to demonstrate why a total ban, rather than a partial ban, was necessary. The majority indicated that it would have upheld partial restrictions consisting of a ban on lifestyle advertising and a ban on advertising directed at minors.

In contrast, the minority held that the government had introduced ample evidence to demonstrate that a total ban was necessary, noting that “in countries where governments have instituted partial prohibitions upon tobacco advertising, . . . the tobacco companies have developed ingenious tactics to circumvent the restrictions.” ^{[503, p. 311]}

The majority ruled that the government had failed to introduce evidence to demonstrate that attributed health warnings would be any less effective than unattributed warnings. The minority disagreed, holding that unattributed warnings were constitutionally valid, citing in support common sense and expert opinion.

One excerpt from the Court’s judgment, endorsed by a majority of six justices, is worth repeating:

Perhaps the most compelling evidence concerning the connection between advertising and consumption can be found in the internal marketing documents prepared by the tobacco manufacturers themselves. Although the appellants [the tobacco manufactur-ers] steadfastly argue that their marketing efforts are directly solely at maintaining and expanding brand loyalty among adult smokers, these documents show otherwise. In particular, the following general conclusions can be drawn from these documents: the tobacco companies are concerned about a shrinking tobacco market and recognize that an ‘advocacy thrust’ is necessary to maintain the size of the overall market; the companies understand that, in order to maintain the overall numbers of smokers, they must reassure current smokers and make their product attractive to the young and to non-smokers; they also recognize that advertising is critical to maintaining the size of the market because it serves to reinforce the social acceptability of smoking by identifying it with glamour, affluence, youthfulness and vitality.^{[503, p. 295]}

Nonetheless, the final result was that the Court declared unconstitutional the sections of the TPCA concerning advertising, warnings, and the use of tobacco trademarks on nontobacco goods. The few remaining parts of the TPCA — the provisions dealing with the ban on free distribution of tobacco products, the ban on incentive promotions, and reporting requirements for manufacturers — remained intact.

The Court’s judgment proved to be very controversial. Although there were those who supported the judgment, significant criticism came from the health community, many members of the public, and numerous newspaper editorials. Said Janice Forsythe, Executive Director of CCSH, “The big losers as a result of the Supreme Court decision are Canada’s children. . . . The only winner is an industry which already reaps record profits from addicting its consumers.” The judgment was a major setback for antismoking forces.

Naturally, the industry was exuberant with its victory. Regardless of how much the industry spent on legal fees to defeat the law — and the amount was in the millions — the industry received far greater value in return. Apart from striking down the key parts of the law, the court case delayed implementation of many additional reforms for tobacco control. Delayed reforms included requiring plain packaging, closing down the sponsorship loophole, and revising the initial round of health warnings under the TPCA. Once the Supreme Court decision was released, it was quickly cited by the tobacco industry when lobbying to prevent advertising restrictions in other parts of the world, including Hong Kong and the Unites States.

The federal government strikes back

On 11 December 1995, less than 3 months after the Supreme Court’s decision, Health Minister Diane Marleau responded forcefully. She released a tobacco-control blueprint containing a comprehensive set of legislative measures.^[239] Notwithstanding the Supreme Court’s judgment, the blueprint proposed a total ban on tobacco advertising. Marleau said that the government would present the evidence that the majority said was missing to justify a total ban. The blueprint also proposed to do the following:

• Establish a legislative framework that would give the government authority over tobacco similar to what is found under the Hazardous Products Act and the Food and Drugs Act;
• Place significant new restrictions on sponsorship promotions, but stop short of a complete ban;
• Ban the use of tobacco trademarks on nontobacco goods;
• Ban mail-order sales and counter-top displays;
• Limit point-of-sale product displays to one sample package per product;
• Expand toxic-constituent information on packaging and increase manufacturer reporting requirements; and
• Create authority to implement plain packaging and regulate product design [but no specific measures were proposed].

As can be expected, health groups heaped praise on the Minister. Implementing the blueprint’s measures would restore Canada’s international leadership role in terms of tobacco-control legislation. Tobacco manufacturers criticized the plan, saying that the measures may not be possible in light of the Supreme Court’s decision. Many arts organizations came out strongly against the restrictions on sponsorship advertising.

On 19 December 1995, shortly after the release of the blueprint, CTMC announced a new voluntary code restricting advertising. Once again, the industry was attempting to use self-regulation as a means to stave off government legislation. This new code prohibited tobacco advertising on radio and television, prohibited people in ads (but permitted other forms of lifestyle advertising), required advertising to be directed to adults, required advertising only to be for the purpose of increasing or maintaining market share, prohibited advertising within 200 metres of school entrances, and required a warning attributed to Health Canada at the bottom 15%–20% of ads. Many of the provisions were similar to those contained in the previous code. However, in contrast with the old code, sponsorship promotions were permitted on television.

Following release of the blueprint, the government opened a public consultation period. Written submissions could be submitted until 31 January 1996, with legislation to be introduced at some point after that. Opposing sides of the debate geared themselves for a major battle. The progress of the fight, to the extent known when this book went to press, is included in the Postscript.

Examples of tobacco ads

Document(s) 15 of 37