Canada Tobacco Warnings
In December 2000, Canada became the first jurisdiction in the world to require graphic photographs on cigarette packages. Initially, regulations required 33% of both sides of tobacco packages to contain a graphic picture and a warning. This was later increased to 50%. Manufacturers were also forbidden to put any promotional material on their packaging, other than their brand name and logo.
Ten years after the warnings went into effect, the federal government announced new regulations that require the graphic pictures and warnings to take up 75% of the surface of the package.
Over the years, the pictures have become more graphic. Packages in the early 2000s showed black lungs and children having difficulty breathing, These have been replaced by more shocking photographs such as one of a skeletal 42-year-old woman in the final stages of lung cander, lying in bed in the final stage of lung cancer. The accompanied warning reads, “This is what dying of lung cancer looks like.”
Those who sell tobacco are not allowed to display these products, lest impressionable children see them. Cigarettes must be kept under the counter or as most convenience stores do, in cabinets with metal doors that must be opened to take the package out.
The Canadian government claims these warnings and other measures have been successful in reducing the number of smokers, and the OMA agrees. The Ontario doctors now want food and drinks that are sugary or have little or no nutritional value to be marketed in the same way to reduce obesity.
Legal Challenges to Canada’s Tobacco Laws
The Constitution Act, 1982, contains the Charter of Rights and Freedoms. The Charter sets out those rights that all Canadians and others on Canadian soil are entitled to. But the document itself states these rights are not absolute. Section 1 of the Charter states all rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A court can rule specific legislation does breach one of the Charter’s enumerated rights, but uphold the law on the grounds the breach is justified.
After the graphic warnings became law, major Canadian tobacco manufacturers filed a lawsuit against the government. The companies argued the requirement of graphic warnings on packaging breached their rights to freedom of expression under section 2(b) of the Charter. In 2005, the case reached the Supreme Court of Canada where the justices held that their rights were indeed breached, but upheld the legislation by applying section 1.
In finding the breach was demonstrably justified, the court held health warnings were an effective way to communicate the dangers of smoking; the larger the warning, the more effective the message. The court also held Parliament was not obligated to use the least restrictive means to convey the dangers as long as it the law they passed was included in a range of effective alternatives.
When the government announced in 2010 that warnings and graphic images had to cover 75% of the packaging, another lawsuit was launched that will no doubt end up in the Supreme Court. That court has already established these restrictions violate the freedom of expression. The argument will center upon whether the increase from 50 to 75% is justified. The companies will argue making a large warning even larger will not lead more people to stop smoking.
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