A Proposal to Regulate the Display and Promotion of Tobacco and Tobacco-Related Products at Retail

A Summary of Responses to the Consultation Document

December 2007

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Table of Contents

• A. Introduction
• B. Who Provided Comments
• C. What Respondents Said
  • C.1. Proposal to restrict the display of tobacco products at retail
  • C.2 Proposal to restrict the display of accessories bearing a tobacco product-related brand element
  • C.3 Proposal to restrict signs indicating the availability and price of tobacco products in retail outlets
  • C.4 Responses to the questions regarding restrictions for retail outlets where sale of tobacco products is the major activity, for cigar rooms and for duty-free stores
  • C.5 Responses to the question regarding the regulation of displays of non-tobacco products (other than accessories) carrying tobacco product brand elements
  • C.6 Responses to the question regarding the regulation of dispensing devices, as a means of promoting tobacco products
• Appendix - List of Respondents

A. Introduction

On December 18, 2006, Health Canada released a consultation document to seek input from the public about possible federal regulations that would:

• Restrict the display of tobacco products at retail. Tobacco products could be displayed as long as they are not visible to persons under 18 years of age, including from outside the retail premises.
• Restrict the display of accessories that bear a tobacco product-related brand element at retail. Accessories bearing a tobacco product-related brand element could be displayed as long as they are not visible to persons under 18 years of age, including from outside the retail premises.
• Restrict signs indicating the availability and price of tobacco products in retail outlets. These restrictions would limit the number, location and size of signs, as well as the lettering and the information permitted on the signs. In addition, the signs' text could not be visible from outside the retail premises.

The consultation document also posed several broad questions:

• Should display restrictions apply to retail outlets where the sale of tobacco products is the major activity?
• Should display restrictions apply to cigar rooms and to duty-free stores?
• Should displays of non-tobacco products (other than accessories) carrying tobacco product-related brand elements be regulated in retail outlets?
• Should dispensing devices, as a means of promoting tobacco products, be regulated?

This report provides an overview of the comments received during the consultation period of December 18, 2006 to March 9, 2007.

B. Who Provided Comments

Health Canada received 190 responses to the consultation document. The responses included a wide range of comments and suggestions from retailers and distributors, the tobacco industry, non-governmental organizations, governmental organizations and the general public. A complete list of respondents is included in the Appendix.

Two types of responses were received: full responses that addressed the many proposals and questions in the consultation document, and brief statements supporting the positions of particular non-governmental or governmental organizations. Health Canada received 128 full responses and 62 brief statements. Table 1 shows a breakdown of the responses, by stakeholder group.

Table 1: Number of Submissions Received, by Stakeholder Group

	Full Responses	Brief Statements	Total
* one wholesaler attached 12 survey forms from current regular retail and wholesale customers on the issue of display at retail ** mainly local and regional health authorities *** one contribution each from a contributing editor of the jo urnal Tobacco Control, students at a high school and a private medical clinic
Retailers (including Duty-Free) and Distributors	18	0	18
Tobacco Industry (including the Specialty Tobacco industry)*	11	0	11
Non-Governmental Organizations (NGOs)	33	47	80
Governmental Organizations**	21	15	36
The Public	42	0	42
Other Respondents***	3	0	3
Total	128	62	190

C. What Respondents Said

C.1. Proposal to restrict the display of tobacco products at retail

In general, the proposal to restrict the display of tobacco products at retail was supported by non-governmental and governmental health organizations and was opposed by retailers, distributors and the tobacco industry. Responses from individuals varied from very supportive to very opposed. Summaries of the comments received are provided below, by stakeholder group.

C.1.1 Retailers And Distributors

C.1.1.1 Opposition

Opposition from retailers and distributors coalesced around four main arguments:

• Health Canada failed to provide evidence to support the need for further regulations.
• The proposals would cause economic hardship for the sector.
• Removing tobacco products from view would compromise safety and security.
• The proposals contravene the federal government's regulatory policy.

Failure to Provide Evidence
Retailers and distributors challenged the evidence presented by Health Canada in the consultation document. They emphasized that many studies have found that young people start smoking mainly in response to peer pressure, parental smoking and curiosity-no study mentions either tobacco displays or signage. Respondents referenced both a recent Health Canada public opinion survey which found that 86% of smokers nationally believe that cigarette displays have no impact on the purchase of cigarettes, and statistics from Saskatchewan and Manitoba which suggest that smoking by young people has actually increased since display bans came into effect in those jurisdictions.

In the absence of supporting evidence, one retail association raised concern that the federal government might put businesses and jobs at risk in an effort to determine the impact of a ban on the retail display of tobacco products. The association opined that this experiment could potentially put retailers out of business. In a similar vein, a retail chain claimed that the only value in imposing a display ban would be to encourage the perception that the federal government is doing something to reduce teen smoking. In actuality, it said, the proposed regulation would do nothing to address that problem.

Cause Economic Hardship
A convenience store association pointed out that while responding to market demands is important in all businesses, "it is absolutely critical to small outlets that depend on rapid inventory turnover of those products most in demand by the customer." Small convenience stores are "a primary source of tobacco products for the smoking public." The resulting sales are "a significant factor in the stability of many small businesses." Tobacco products account for "35% of in-store sales" according to another convenience store association. To remain competitive, these stores have to stock tobacco products.

One retailer noted that if regulatory changes mean it takes more time for customers to purchase tobacco products at a convenience store, then these stores will lose one of their competitive advantages. The elimination of this competitive advantage would impact economic viability.

Retailers further argued that stores prohibited from displaying and promoting tobacco products would be significantly less able to attract those customers wishing to buy tobacco products. Accordingly, such stores could expect a decline in both tobacco product sales and potentially in sales of other products, since tobacco purchasers often buy more than just cigarettes.

Retailers expect that a display ban would cause the tobacco industry to stop paying fees to retailers for providing favourable product placement of their products, resulting in a substantial loss in revenue to convenience stores. In addition, costs would increase. For example, renovations required to ensure tobacco products are not seen are projected to cost between $2,500 and $5,000 per store. Labour costs would increase as retailers would need to spend additional time training employees on more complex retailing procedures. These measures would make it more difficult for independent stores to compete with chains, which adapt more easily to change. A convenience store association predicted that an unacceptable number of stores would be forced to close.

One distributor concluded that while a retail display ban would not affect the long-term purchase decisions of the consumer, it would create a more costly supply chain and a less informed consumer. Another convenience store association reminded Health Canada that business people's ingenuity permits them to adjust to the normal fluctuation of market conditions to maintain business stability. However, careful consideration should be given to the potential impact on businesses of sudden changes to customers' buying habits.

Compromise Safety and Security
Retailers and distributors emphasized that a tobacco display ban at retail would compromise the safety of convenience store employees and company security. They stated that it is imperative for tobacco products to be in plain view for easy selection by customers. Employees are trained to maintain eye contact with customers. Any circumstance requiring the employee to search for a particular product results in a security and safety hazard. One distributor reported that 98% of crimes against distributors and 67% against retailers are linked to tobacco products.

Contravene Federal Regulatory Policy
Several retailer associations contended that Health Canada's proposal contravenes most of the guiding principles of the federal regulatory policy. Specifically, they asserted that the federal government has failed to:

• Consult with industry stakeholders since previous consultations held in 1999, despite substantial changes in the retail environment.
• Demonstrate that a problem or risk exists and that government intervention is justified.
• Show that the benefits outweigh the costs. They point out that Health Canada admits it is unsure whether the proposed regulations would have an impact on overall tobacco sales.
• Minimize the adverse impact on the capacity of the economy to generate wealth and employment.
• Take full advantage of opportunities for coordinating with other governments and agencies. Health Canada's proposals compete with and duplicate the efforts of six provinces and two territories, thereby causing confusion in the marketplace and increasing government spending.

C.1.1.2 Support

Retailer opposition to Health Canada's proposals was not unanimous. One retailer, who for years has hidden all tobacco products from view in his store, expressed excitement at the prospect that large corporations would no longer receive payments from the tobacco industry for displaying tobacco and tobacco-related products. He opined that the proposal would have a huge positive impact, presumably by leveling the playing field with his competitors.

One convenience store association acknowledged that the vast majority of its members have retail merchandising agreements with one or more cigarette manufacturers to give these manufacturers favourable product placement. While these members may derive a significant portion of their store revenue from these agreements, the association emphasized that its members seek fairness and reasonableness. It requested that regulations not unfairly disadvantage certain types of retailers over others by exempting certain retailers from display restrictions; such exemptions would confer an explicit unfair competitive advantage. The association added that "exempting certain retailers runs counter to the overall rationale for the restrictions: discouraging tobacco consumption."

C.1.2 Tobacco Industry

C.1.2.1 Opposition

Opposition from the tobacco industry focused on several concerns:

• The basic premise of the consultation document is unfounded.
• Some of the information referenced is obsolete.
• The regulatory measures would interfere with business competition.
• Eliminating retail displays would undermine the stated objectives of the proposed regulations.
• The proposals are not in line with federal regulatory policy
• The regulatory measures would be an unlawful exercise of regulation-making powers.
• Cigars and pipe tobacco should be given special status.

Unfounded Premise
Several companies challenged the basic premise of the consultation document that retail displays of tobacco products act as an inducement to young people and others to use those products or, specifically, that there is a causal relationship between exposure to tobacco products at retail and use of those products. One cigarette manufacturer stated that "this premise is unfounded, based on flawed logic and inconclusive sources." Another company speculated that "the sense of urgency described in the government consultation document seems largely leveraged through the emergence of display restrictions/bans in some provincial/territorial jurisdictions and internationally" and that these bans are the result of work by "federally funded anti-tobacco groups hoping to eventually secure a nation-wide ban."

Several companies commented that many government studies have identified peer pressure and having a friend or relative who smokes as the most important factors in inducing young people to start smoking. Product displays are not in the list of relevant factors. One cigarette company quoted a passage from a 1994 reference cited in the consultation document which states that it is unknown "whether youths already interested in smoking become more attentive to advertisements or whether advertisements lead youth to become more interested in smoking." The company also stated that Health Canada's premise "implies young people's decision to purchase tobacco products is made on the spur of the moment and that they are actually allowed to make such purchases." The company countered that display does not enter into the decision to smoke, referring to a recent survey that found that 99% of Canadians who frequent convenience stores and purchase cigarettes make their purchase decision before entering the store.

Another company found the consultation document to be misleading in several areas. First, it challenged the suggestion that there is a conflict between the government's tobacco control strategy and the visual presence of tobacco products at retail. It argued that if there is any real conflict, it can be found in the fact that Canadian governments derive revenue from the sale of tobacco products. Second, the company challenged the assertion that there is an insidious contradiction between colourful visual displays and youth sales restrictions at retail, considering that a number of other age-restricted and government-driven consumer products, such as alcohol and lottery tickets, are sold at retail and similarly displayed. Third, the company challenged the suggestion that the visual presence of tobacco products at retail promotes the social acceptability of both the product and behaviour. "If anything the 'power walls' of graphic health warnings serve to remind Canadians, and especially youth, as to the social non-acceptability of the products and behaviour in question." Another company stated simply that no evidence was offered to support the argument that tobacco displays undermine the prohibition on sales of tobacco products to youth.

In addition, according to that company, the use of words such as "may" and "potentially" in the consultation document with respect to the causal relationship between the display of tobacco products and smoking indicates that Health Canada considers the relationship to be "purely hypothetical." It criticized Health Canada for concluding, without evidence, that retail displays of tobacco products likely contribute to the smoking decision. The company asserted that Health Canada's own public opinion survey contradicts this conclusion, with a strong majority of smokers saying that power walls have no impact on their purchase behaviour. Another company stated that no government research seems to have been done to measure the impact of retail displays on youth smokers or potential smokers.

Several companies took issue with the idea that the retail display of tobacco products serves to reinforce their attraction to young people as "forbidden fruit," stating that products available for sale but not displayed could be even more appealing as forbidden fruit. These respondents suggested that Health Canada's logic could be extended to restrictions on the display of other adult-oriented products including alcoholic beverages and lottery tickets. One company commented that no facts or research in the consultation document support Health Canada's assertion.

The same company described Health Canada's suggestion that a causal relationship exists between youth smoking and the frequency of visits to convenience stores as speculative. The company contended that the California study cited by Health Canada to support this suggestion actually concedes that it could not confirm a causal role for retail marketing in adolescent underage smoking. The company suggested that the study equally supported the proposition that adolescent California smokers are likely to be more frequent convenience store visitors because of differences in the regulatory environment. The company also commented that two studies cited by Health Canada as evidence that displays affect adult demand for tobacco products do not provide such support.

One company debated the way certain survey results were interpreted in the consultation document. For instance, the document reports that 64% of both smokers and non-smokers agree that cigarettes should be kept out of sight unless a customer specifically asks for them or that cigarettes should not be prominently displayed in places where they are sold. However, the company responded that 30% of the people interviewed thought that there should be no restrictions on how cigarettes are displayed, while 20% thought they should not be prominently displayed. Therefore, overall, half of those surveyed did not believe that cigarettes should be kept out of sight unless a customer specifically asks for them, a different interpretation than provided in the consultation document. Another company referred to the survey results which showed that 53% of those surveyed believed that power walls encourage young people to smoke. The company commented that these data demonstrate that almost an equal number of respondents believed that power walls would either discourage young people from smoking or have no effect.

One company also focused on Health Canada's assertion that the visibility of tobacco products to young people is exacerbated by their placement in stores, typically close to displays of candy, chewing gum and chips, which increases the perception that they are normal, everyday products. The company stated that Health Canada made an intentionally false implication; the placement of tobacco products close to the cash register is dictated by security concerns and by the ban on self-serve displays in the Tobacco Act. The company bolstered this argument by referencing a Health Canada survey which indicated that about half of those surveyed believed that cigarettes are located at the cash to prevent theft while about one-quarter believed it is to keep them out of the hands of minors. There was no mention of tobacco products being placed near products that are appealing to young people.

Finally, several companies argued that smoking rate data from Saskatchewan neither provide evidence to support the effectiveness of such regulations nor demonstrate a causal relationship between the existence of retail displays and smoking prevalence.

Obsolete Information
Several companies criticized some of the content of the consultation document for being obsolete. For example, one cigarette manufacturer focused on the sentence: "When promoting tobacco products, marketers typically use messages and images to influence the smoking decision process by conveying the idea that tobacco use is desirable, socially acceptable and more pervasive in society than it really is." The manufacturer said this scenario bears no relation to the activities of tobacco manufacturers in 2007. All forms of advertising and promotion of tobacco products have been severely restricted under current legislation and that "therefore the idea that 'marketers' are using 'messages and images' is simply erroneous." The company also criticized the reference to a 1996 study commissioned by Health Canada that describes "how the mix of promotional efforts related to tobacco products operates to associate products and their brand names and identities to youthful, vital, healthful, fun or intriguing elements," arguing that the "study was published at a time when tobacco manufacturers were able to advertise and promote their products and the regulatory environment at that time bears no relation to the current environment."

Consultation Objectives Undermined
Several companies contended that eliminating retail displays of tobacco products would undermine the stated objectives of the proposed regulations in two ways: by "normalizing" illicit tobacco products at the expense of legal products, resulting in increased use of illicit products, and by reducing the visibility of the health warnings that Health Canada claims discourage smoking. As well, several companies, referring again to Health Canada's own public opinion survey, argued that with 16% of former smokers stating that the wall of cigarettes confirmed their decision to quit, there may actually be a public health value in displaying the health warnings on tobacco products at retail.

One cigarette manufacturer wrote that retailers selling illicit tobacco products do not display such products openly next to tax-paid products. Instead, they hide them, usually under the counter. In this situation, both consumers and retailers of illicit products run a significant risk of detection because other consumers may notice that the tobacco is purchased from a clearly concealed location. However, the risk of detection would be virtually eliminated if all tobacco products were stored under the counter because they would all, illicit or tax paid, be sold from the same concealed location.

That company argued that an environment which normalizes illicit products combined with a lack of enforcement both on and off First Nations reserves "will, of economic necessity, drive otherwise law abiding retailers to carry illicit tobacco products." The company predicted that "(a)s a result the only market change precipitated by the proposed regulations would be the rate of growth of illicit products, as they become entrenched in the licensed retail channel" and that this "would result in more Canadians purchasing more low cost illicit products, without mandated health messages, low ignition paper or constituent information."

Because of the concentration of illicit tobacco products in Ontario and Québec and the serious economic and health impacts that those products present, the company requested that the federal government liaise with the governments of those provinces to delay the implementation of the provincial legislation until such time as the illicit tobacco market has been eliminated.

Interference with Business Competition
Several companies emphasized the importance of retail displays of tobacco products for conveying information to adult smokers to allow them to make informed choices. For example, one cigarette manufacturer emphasized that "with virtually all forms of promotion banned, displays are currently one of the only means available to companies to inform their customers about the availability of different products and their particular attributes" and that "(g)iving smokers an opportunity to see the products they are trying to purchase is the most important means of communicating with them." This view was echoed by other companies.

Another cigarette manufacturer wrote that "manufacturers see value in spending money for retail display to provide useful information to their customers, to inform them about differences among their products and to compete with one another." That company also stated that a "reduction in adult smoker awareness of certain brands as a result of display restrictions is likely to lock the market, translating into stronger brand loyalty for already successful and established brands" and that it "would be impossible, for example, to communicate the availability of any new products on the market, including potentially reduced-risk products." Another company wrote that "the major tobacco manufacturers will be granted a de facto monopoly over tobacco sales due to their previous dominance and brand awareness in the marketplace." Yet another company commented that the "ability of adult tobacco consumers to choose tobacco products considered by the public health community to carry less risk, including smokeless products, would be frustrated."

One company asked, if a regulatory approach is taken, that the regulations "be clear, unambiguous and applied in a consistent and uniform manner," harmonized with provincial regulations, and "enforced consistently and uniformly, including on native reserves" to avoid creating unfair competition. Another company looked forward "to the results of a more thorough, open and objective cost/benefit analysis of the measures being considered."

The company built on the suggestion in the consultation document that retailers could continue the retail display of tobacco and tobacco-related products by prohibiting young people from entering the premises and by making sure that the displays are not visible from the outside. It proposed that under such a regime, retailers meeting those requirements should be allowed to display tobacco products inside their premises without restriction. The company also noted that the numbers used in the consultation document about retailers that limit or potentially prohibit access to young people do not correspond to numbers from Industry Canada. Industry Canada's numbers show that less than 1% of retailers in Saskatchewan and Manitoba chose to restrict access after the retail display bans took effect in those provinces. The company concluded it would be unrealistic to think that a substantial number of retailers would take this route. Health Canada "would be wrong to base its proposed regulations on this premise."

One company, which sells a specialty tobacco product, emphasized the importance of achieving the proposal's objectives without eliminating competition. It opined that too few retail outlets could be converted to restrict access in the short term. That company also stated its belief that if reasonable guidelines were developed by all affected parties and implemented in one-third of existing retail outlets, the intended smoking reductions could be achieved while still allowing competition and respecting adult smoker choice. The company estimated that it would take about three years to convert stores to age-restricted premises from the date such guidelines were released. Otherwise, the company predicted that adults who choose to smoke would have virtually no access to retail establishments where they could make informed choices about legal products that are available for sale and become informed about new styles and potential reduced-risk products.

One specialty tobacco company commented on the effects of a retail display ban on retailers, writing that with youth smoking "at an all time low ... display bans are not a valid reason to put small business into bankruptcy." The company also disputed the position taken in the consultation document that a reduced demand for labour as a result of a decline in the demand for cigarettes would be offset by increases in other sectors. The company countered that "it is easy to say that people will recover and 'get on with it', but it usually takes about 10-15 years to recover a full economy, if not longer" with concomitant economic and social problems including increased bankruptcies, job losses and closed manufacturing plants. Another company wrote that the regulation proposed by Health Canada would cause harm to convenience stores while favouring supermarket chains and malls that are able to configure floor space in order to meet adult-only status with respect to tobacco displays.

Federal regulatory policy
Several companies stated that Health Canada has not complied with the federal government regulatory policy that requires departments to show a problem or risk exists, that federal government intervention is justified and that regulation is the best alternative. One company submitted that Health Canada has not seriously considered solutions that would place fewer constraints on tobacco companies and retailers such as restricting the display surface of products, granting incentives to retailers to not allow minors in their stores so tobacco products can continue to be displayed freely, permitting retailers to have a catalogue containing information identifying each product for sale and enabling them to be differentiated, regulating the placement of tobacco products within retail outlets and considering special rules for the display of reduced-risk products. The company also suggested that "it would be much more rational and effective to adopt measures to promote compliance with the ban on sales to minors."

The company further contended that "the mere fact that an incomplete consultation was held in 1999 does not fulfill Health Canada's regulatory policy obligations" and that "(i)t is clearly unreasonable to rely on a stale, incomplete consultation that occurred under a completely different regulatory environment."

One cigarette manufacturer questioned why the federal government is seeking to regulate in an area where so many provinces and territories have already intervened. The respondent stated that federal government involvement would duplicate the time and resources already expended by the provincial and territorial governments. Federal involvement would also not help standardize regulatory requirements across Canada since many of those jurisdictions already have more restrictive legislation in place.

Several companies commented that the consultation document fails to provide clearly expressed regulatory objectives and a discussion of anticipated outcomes that can be measured and evaluated. One contended that the high degree of regulation which separates tobacco products from most other consumer goods must be taken into account by governments seeking to introduce new regulatory measures.

Another company observed that although the authority for the federal government to act is contained in the Tobacco Act, the necessary research and policy foundation has not been put in place to support a ban on the display of tobacco products at retail. The information generated is "less than comprehensive and accurate." That company stated that the fact of provincial restrictions and/or bans "does not in any way absolve the department from ensuring federally proposed displays are well researched, understood, designed, developed and delivered."

Several companies stated that the Health Canada proposals fail to meet the federal regulatory policy requiring the government to demonstrate that the benefits of any new regulation outweigh its costs. A cigarette manufacturer wrote that the proposed regulations, instead of producing a net social benefit, as required by federal regulatory policy, would result in both increased social costs to Canadians and increased financial costs to governments and businesses by facilitating a growth in the illicit tobacco products market in Canada. Another company, while acknowledging that the Health Canada proposal would reduce the number of times that smokers, non-smokers and youth actually see tobacco products, commented that the costs would far exceed this benefit. It listed several costs including not permitting legal product and brand-preference information to be communicated to smokers of legal age, making compliance and enforcement much more difficult for tobacco inspectors, providing further encouragement and support to contraband and counterfeit markets by making their detection much more difficult, and by eliminating the visibility of graphic health warnings on packages. Another company criticized Health Canada for not identifying or estimating the costs and benefits of a retail display ban.

The same company recommended that "proactive, comprehensive and unbiased research" investigate the link between youth smoking and the presence of tobacco displays at retail. This research should include an expert review of the complex decision-making process of youth, the impact of "dark markets" on the fueling of contraband and counterfeit products/networks, and the impact on health of health information tools. It also recommended that government indicate what it hopes to achieve by banning retail tobacco displays, how it will measure the success of the initiative (including its impact on youth uptake, youth access, former smokers and general smoking behaviour), how Health Canada will communicate its findings and what it proposes to do should its objectives not be achieved. The company also requested that "meaningful consultation with private sector stakeholders finally be undertaken through planned and funded national workshops/meetings." The purpose would be to "develop an accountable structure in support of effective, necessary and actual expert-based working relationships with those stakeholders called upon every day to respect and apply the proposed regulations."

Unlawful Exercise of Regulation-making Powers
One company opined that "(r)egulations establishing a retail display ban would arguably constitute an unlawful exercise of the regulation-making powers of the Tobacco Act" and presented arguments to the effect that limiting such a ban to retail outlets accessible to minors would not avoid this problem because "virtually all tobacco sales take place at such outlets." The company also commented that the regulation of tobacco displays is permitted only to the extent that such displays constitute "promotion" as defined in the Act. The company contended the structure of Part IV of the Act makes it apparent that Parliament considered the retail display of tobacco products to be outside of its concept of promotion; the mere presentation of individual tobacco packages at retail in association with signs on availability and price does not constitute promotion as defined by the Act.

Furthermore, the company asserted that even if the proposed regulation was found to be a valid exercise of regulation-making authority, it did not believe the requirement of minimal impairment of freedom of commercial expression would be satisfied; therefore, the proposed regulation would be found unconstitutional. The company concluded that the type of regulatory scheme described in the consultation document "cannot be justified from a legal or policy perspective" and suggested that Health Canada "consider only regulatory schemes that would permit the reasonable and open display of all tobacco products, as well as reasonable signage."

Special Status for Cigars and Pipe Tobacco
Manufacturers, importers and marketers of cigars and pipe tobacco argued that any display regulations should treat their products differently from cigarettes because of their products' "reduced-risk" nature; their products are less likely to cause addiction than either cigarettes or smokeless products and less likely to cause disease than cigarettes. One company asserted that Health Canada has recognized in its labelling regulations that the effects on the health of cigar smokers are different from those affecting cigarette smokers. Provincial legislation has also recognized these differences, with Québec permitting cigar lounges, not cigarette lounges, and Ontario allowing the display of cigars, not cigarettes, in tobacconist shops.

Respondents suggested that regulations could distinguish three classes of products: cigarettes and tobacco sticks manufactured with similar technologies; cigars (with three components of filler, binder, wrapper) and pipe tobacco; and smokeless tobacco. Precedent for such measures includes regulations under the Tobacco Act that make some distinctions between classes of products for different exemptions. If Health Canada plans to study the economic impact of these regulations, respondents suggested that particular attention be paid to the drastic reduction of cigar and pipe tobacco sales which could impact the livelihood of numerous Canadians.

These companies expect major damage to their companies if the Health Canada proposal is implemented. The key issue for many of these companies is the visibility of their brands at retail which allows them to communicate with their customers. One company explained that many consumers only purchase cigars for special occasions and that the variety of cigar options is such that consumer loyalty is not guaranteed for any of their brands. The companies stated that if cigars or pipe tobacco were not allowed to be displayed in full public view, sales would be reduced by an estimated 20-100%. The sales of lesser known products would fall off completely.

The companies stated that they could not understand why a proposal aimed at protecting young people from inducement to use tobacco would target specialty products in the same manner as cigarettes. They contended it is common knowledge that cigars are mostly used by men over the age of 30 and pipes by men over the age of 40. The high price of cigars and pipe tobacco make these products less attractive to young people. They asked Health Canada to justify why marketers of cigars and pipe tobacco should become side casualties of measures directed at another class of products. One company wrote "research and studies on consumer behaviour regarding cigar and pipe tobacco haven't been conducted. It is therefore, surprising that the government would carelessly, without research and review of the smallest sector of the tobacco industry, consider moving ahead with legislation that would in a short period of time completely annihilate an industry."

Two companies referred to the 1999 Health Canada consultation paper Options for Tobacco Promotion Regulations as a more appropriate regulatory model for their industry. For example, it was suggested that Health Canada could consider reducing the visual impact of retail tobacco displays through limitations on the size of displays. Other ideas included a phase-in period for all retailers if a complete ban is proposed, an exemption for specialty tobacco shops and a mechanism to allow some retailers to restructure themselves as tobacconists.

C.1.3 Non-governmental Organizations

C.1.3.1 Support

Non-Governmental Organizations (NGOs) were overwhelmingly in favour of the Health Canada proposal. They asked Health Canada to:

• Strengthen the proposed regulations.
• Protect all vulnerable populations--including former smokers and smokers trying to quit--from exposure to displays.
• Ensure that any federal legislation is specifically non-preemptive, enabling provinces, territories and municipalities to place additional restrictions on retail outlet locations.

Several NGOs provided nearly identical comments that the proposed regulations would be a significant step towards protecting children from the lure of tobacco products in convenience stores and that consistent federal legislation across the country is the ultimate step in the fight against the dangerous effects of tobacco industry products.

Strengthen the Proposed Regulations
Respondents asked Health Canada to strengthen its proposal by completely banning all tobacco advertising and promotion, requiring tobacco products to be stored under an opaque counter or other place where they are not visible when accessed by the clerk, aligning any age-related access restrictions with the sales to minors legislation in each province or territory and prohibiting mobile displays (cigarette girls and boys).

One health NGO stated that large displays of tobacco products, arranged for maximal visual impact and often with pricing promoting the lowest cost option in cigarettes, directly undermine the benefit that has been achieved with youth through increases in tobacco tax. Another felt that "tobacco displays exacerbate the harm caused by the hyper-availability of tobacco products."

One health NGO asked Health Canada to consider the strictest regulations possible in the constitutional framework and to review provincial precedents and proposals that go beyond those offered in the consultation document.

One foreign NGO urged Canada not to pursue a reduction in the size of displays since past experience makes it clear that tobacco companies will take advantage of any opportunity given to them. Merely tinkering with the size of displays creates difficulties in enforcement since it becomes difficult to know if a retailer is compliant or not, whereas a total ban is clear and easy to regulate. Two Saskatchewan NGOs, reflecting on their experience with the retail display ban in that province, recommended that display regulations apply to all establishments; allowing age-restricted establishments in Saskatchewan has resulted in a number of loopholes that the tobacco industry has exploited.

Protect Vulnerable Populations
Another common theme was the need to protect, not only young people, but all vulnerable populations--including former smokers and smokers trying to quit--from exposure to retail displays of tobacco products. One health NGO wrote that although many people addicted to nicotine are motivated to quit, the product reminders from tobacco displays make it difficult to manage their cravings. The NGO added that clinicians believe the display of tobacco and related products and their strategic placement next to relatively benign products have a major influence on the decision to smoke for those attempting to quit and on the amount smoked by those who already have an addiction, including people with tobacco-related illnesses. Another health NGO noted that, as is the case for other highly addictive drugs, cue-induced cravings are a significant cause of relapse into tobacco use. Power walls provide a way to ensure that virtually all former smokers will be exposed to such cues whenever they go into a convenience store, gas station or other retail outlet. One health NGO went further, stating that the option of allowing retailers to designate their premises "child-free" "offends the principles of public health that all Canadians are entitled to legislative and administrative measures to protect their health."

The tobacco industry's position that retail tobacco displays are intended to only influence brand choice, not to encourage use, was disputed by one health NGO. It contended that adults who use tobacco products know all they need to about them and that research has shown they do not switch brands in response to advertising. Another NGO described elaborate displays as attempts to inject a dose of attractive "intangibles" into public perceptions of different brands. It asserted that, "in the absence of billboards and advertising in electronic and print media, power walls provide virtually the only mass-market opportunity to associate specific brands with imagery that is likely to appeal to smokers, ex-smokers or potential smokers." A Saskatchewan NGO also disputed industry claims that display bans cause undue economic hardship and increase crime. It stated that there have been no reports of economic losses, nor any indication of an increase in thefts or assault as a result of the Saskatchewan retail display ban.

Several NGOs expressed that allowing tobacco displays only in age-restricted retail premises could reinforce the tobacco industry's efforts to position cigarettes as a badge of adulthood, heightening tobacco's lure as "adults-only" and increasing its perception as "forbidden fruit," thereby encouraging young people to make additional efforts to obtain it. Considering the idea of age-restricted premises from a different angle, one NGO warned that there may be enforcement challenges given current limitations on the availability of funding and of properly trained personnel for enforcement programs in many provinces. It argued that the problem would be less prevalent if all stores were required to completely eliminate the visibility of tobacco industry products for purchasers, except at the moment of sale.

Make Federal Legislation Non-Pre-emptive
With respect to the relationship between the provincial/territorial legislation and possible federal regulations on tobacco displays at retail, several NGOs emphasized that any federal legislation should be specifically non-preemptive, enabling provinces, territories and municipalities to place additional restrictions on retail outlet locations and to post legally required health-related information at point-of-purchase. On the other hand, a sentiment was expressed often that national regulations can provide more equitable protection for all Canadians, serving to provide at least a basic level of protection for everyone regardless of location, including people living in First Nations communities. One health NGO suggested that even if provinces have similar laws, such as the law in Québec, a federal measure would reinforce the impact of the provincial prohibition and make it less vulnerable to legal and other challenges.

C.1.3.2 Opposition

Two NGOs opposed the proposal. One insisted that Health Canada make sure existing laws are obeyed before making new ones and identified the lack of enforcement in First Nations communities and contraband as two key issues. The other found the assumption that seeing a product on a shelf could induce youth to start smoking to be ridiculous. This NGO also stated that a number of learned, well received and peer reviewed studies show that most of the assumptions made by those pushing for ever more intrusive regulations against tobacco are wrong in every case. The NGO also pointed out, as several other respondents did, that banning retail tobacco displays would also remove the graphic health warnings on tobacco products from everyday view, resulting in the loss of "the most visible and effective warning against smoking."

C.1.4 Governmental Organizations

Government organizations responding to the Health Canada proposals included local and regional health units, youth organizations associated with such health units or Health Canada, and two provincial ministries. Comments were generally similar to the health NGOs.

One youth group from Manitoba declared that the ban on displays in Manitoba has been a complete success and that citizens' health and the environment have benefited. Similarly, an Ontario youth group reported that the Smoke-Free Ontario Act is doing a great job of protecting youth in Ontario. It emphasized the importance of protecting all Canadian children "from the unethical marketing practices of the tobacco industry." An Alberta health unit noted that the Health Canada proposals do not specifically call for the prohibition of the sale of tobacco products in pharmacies and reported that Alberta pharmacists had recommended that restrictions be placed on the sale of tobacco products in pharmacies.

Several organizations called for a complete ban on retail tobacco displays, not just in premises that prohibit youth access. One youth group asserted that "not only would a power wall ban help prevent youth from starting to smoke, a ban on retail tobacco displays would help smokers who are trying to quit." Further, "a nation-wide power wall ban would send a message that Canada will not be manipulated by the tobacco industry anymore." A federal tobacco inspector, commenting on industry arguments that its promotional efforts are geared only towards adult smokers to get them to change brands, said that smokers "know what brand they want, they don't have to see them on display."

C.1.5 The Public and Other Respondents

C.1.5.1 Support

About two-thirds of the individuals from the general public supported the Health Canada proposals. The following comments were made repeatedly:

• Retail tobacco displays serve as an inducement to young people to use tobacco products.
• It's important also to protect adults from the effects of retail tobacco displays.

Inducements to Young People
Many of the supporters of the Health Canada proposals echoed the rationale developed in the consultation document that retail tobacco displays serve as an inducement to young people to use those products. One respondent stated a belief that tobacco displays are strategically placed at children's eye level to deliberately to catch their attention and make them interested in wanting to buy the products. She added that if you ask any child, they can tell you the colour of certain brands of cigarettes.

Another respondent commented that for far too many years children have been given a mixed message - on the one hand they are told that tobacco products are addictive and harmful, yet on the other the products are displayed and sold like normal consumer products.

Protect Adults
While reducing youth exposure to tobacco products was stated as a prominent goal, many respondents also focused on the importance of protecting adults from the effects of retail tobacco displays. One respondent referred to studies demonstrating that an increasing number of young adults are starting to smoke and becoming addicted. He also pointed out that former smokers and smokers trying to quit are all exposed to tobacco promotion at retail. He noted that the Health Canada proposal suggests that retailers who want to continue to display tobacco products would simply have to make their store adult only and ensure that the displays could not be seen from outside. He warned that the proposal does not address any of the issues regarding adult exposure.

Another respondent, a former smoker, agreed that cigarettes should not be seen and reported that she thinks about buying cigarettes when she sees them behind the counter. Another individual reported that many people with chronic obstructive pulmonary disease and heart disease find it hard to quit smoking. Removing tobacco from public display would greatly help these people give up smoking and improve their lives.

Other Comments
Several supporters recognized that the retail display proposal could result in financial losses for retailers. One suggested that the government offer a remedy, perhaps a small retail tax credit or other incentive, to offset the impacts on small convenience stores and other retail locations that rely heavily on tobacco sales for profit. Another felt that a total ban would level the playing field for retailers who often reluctantly arrange their stores to showcase point-of-purchase tobacco displays in order to remain competitive.

Several respondents urged the government to make new regulations quickly. Several others asked the government to go even further and bring in a complete ban on all forms of advertising. Another reminded the government that enforcement must also be a factor in the regulations - Without enforcement, the law will mean nothing.

C.1.5.2 Neutral

One respondent described the overall intention of the proposed regulations as laudable but found "a troubling inconsistency between the proposals themselves and the stated rationale and underlying analysis." He further noted that the "Executive Summary reflects a flawed premise and lack of specificity that, in turn, leads to inadequate proposed regulations." More specifically, he criticized the proposal that tobacco products could be displayed as long as they are not visible to young people as "appallingly inadequate and short-sighted." He argued that tobacco products should not be displayed at all and that "(a)llowing them to be displayed and then excluding youth from the premises is the worst of both worlds, reinforcing the aspirational aspects of cigarettes, the message being 'just wait until you're 18 and you too can enjoy this adult pleasure'."

C.1.5.3 Opposition

Members of the public opposed to the proposal argued that:

• Tobacco displays have virtually no effect on enticing young people to smoke.
• The government has no place regulating the conduct of people who consciously adopt one lifestyle or another.

Effect of Tobacco Displays and Promotion
Some respondents challenged the basis of the proposals, stating that tobacco displays and promotion have virtually no effect on enticing young people to smoke and that there is no serious evidence to suggest that people take up smoking simply because they see packs of cigarettes on a vendor's shelf. To bolster this argument, one respondent cited the increased use of marijuana by young people in the complete absence of advertisements or promotions. Another noted that there have "been almost no provocative and/or sexy smoking advertisements for almost four decades, yet smoking in most areas has held strong." Another respondent, a cigarette smoker, asserted that he had never felt one ounce of pressure from advertising to start smoking.

Several respondents exploited the argument presented in the consultation document that tobacco products on display at retail serve to reinforce their attraction to young people as "forbidden fruit." These respondents suggested that the restrictions themselves, along with smoking denormalization campaigns, attract such attention and impart such a mystique to tobacco that young people may wish to try smoking to find out what all the fuss is about.

The Role of Government
Some people felt strongly that the government has no place regulating the conduct of people who consciously adopt one lifestyle or another, extending that argument to include exposure to the display and promotion of tobacco products. One respondent stated that behaviour cannot be legislated, "especially by the use of hysterical, untruthful and exaggerated health elitist propaganda." Another asserted that tobacco companies are neither forcing people to use their products nor targeting a certain age group.

One respondent saw the Health Canada proposal as an intrusion into the selling of a legal product that is highly regulated by the federal and provincial governments. Another opined that the proposed regulation would penalize tax-paying convenience store operators for following the law and encourage black market operators. Another wondered if the sale of tobacco products should be conducted through liquor or beer stores, permitting tobacco displays without exposing young people. A view was also given that any federal position beyond stating that the provinces are free to enact legislation consistent within the letter of the federal Tobacco Act is unnecessary, unwarranted and unenforceable and will conflict with existing, proposed and future provincial legislation.

C.2 Proposal to Restrict the Display of Accessories Bearing a Tobacco Product-related Brand Element

Most of the comments on this proposal came from non-governmental and governmental health organizations and were supportive. Several declared that any provisions restricting the display of branded accessories should be just as strong as the provisions for the display of tobacco products, while some others called for an end to all "brand-stretching."

One tobacco company commented that no evidence had been cited to support the claim that accessory displays increase tobacco product demand, while one NGO stated that items bearing a tobacco brand logo are designed to create and reinforce brand awareness and have proven to be an effective sales reminder technique. The sale of such items allow tobacco companies to continue to advertise their brands even if the display of tobacco products was restricted. Another NGO predicted that, unless the display of branded accessories was also restricted, lost cigarette displays would be replaced by displays of other tobacco-branded products or promotions for tobacco-branded services. The organization recommended that the regulations ensure no replacement products or services are developed to continue tobacco brand promotions at retail. Another NGO, suggested that consumers be given access to a binder or catalogue at point-of-purchase from which they could obtain information on these branded products.

One respondent described the proposal to restrict the display of branded accessories as inadequate, stating that tobacco-branded products equal tobacco advertising. The respondent questioned the need for any additional advertising material for these products. An NGO commented that permitting the display of branded accessories, as long as they are not visible to people under 18, is not in the best interest of the health of all Canadians.

An NGO asked that any federal restriction on the display of accessories bearing tobacco-related brand elements not be preemptive of stronger provincial legislation.

C.3 Proposal to Restrict Signs Indicating the Availability and Price of Tobacco Products in Retail Outlets

C.3.1 Opposition

Those opposed to the proposal to restrict signs in retail outlets argued:

• The proposal would go against the federal Competition Act and would be an unlawful exercise of the regulation-making powers of the Tobacco Act.
• Many different kinds of cigars are sold in retail outlets and it is important for the consumer to know the price of each cigar, with the price displayed close to the product.

Contravene Existing Laws
Two tobacco companies contended that the proposal would go against current federal legislation. One company asserted that any "legislation which inhibits price competition undermines the principles of the Competition Act" and argued that to respect that Act, signage must reflect that different products are sold at different prices. As mentioned earlier, another tobacco company stated that the mere presentation of individual tobacco packages at retail in association with signs on availability and price does not constitute promotion as defined by the Act. Restrictions would be viewed as "an unlawful exercise of the regulation-making powers of the Tobacco Act."

One retail association pointed out a concern for retailers linked to gas stations: many regulations regarding the sale of gasoline require unobstructed sight lines and that "(a)ny regulation which would necessitate a retailer to impede sight lines to prevent tobacco products or signage from being seen from outside the retail environment would contravene existing laws."

Price of Cigars
One specialty tobacco company noted that many different kinds of cigars are sold in retail outlets and that it is important for the consumer to know the price of each cigar. The company commented that it is necessary for basic information, such as the price of the product, to be displayed close to the product itself. Requiring signs indicating prices to be close to a cash register would confuse the consumer. The company reported that Ontario had found limiting the number of price signs for tobacco products to be unworkable. The company also reported that Ontario, while prohibiting signs from being posted facing a window, had decided that signs could be visible obliquely through the window so that small stores and those with large windows would not be disadvantaged when compared to big stores or those with small windows.

C.3.2 Support

Non-governmental and governmental health organizations supported the proposal. One NGO reported that the impact of the retail display ban in Saskatchewan had been reduced because it was not accompanied by the removal of outdoor signage advertising product availability. The organization explained that it is not uncommon to find that the only signs stores place at the street are ones advertising cigarettes for sale. Because they are placed in areas of high visibility to passing pedestrian and vehicle traffic, the signs are viewed by people of all ages. The organization added that outdoor signs do not depend on people entering the store but are visibly forced on all. Further, "children go into stores but they enter the store far less frequently than they pass the store where they are reminded of cigarettes by the signs."

Several organizations proposed various restrictions on signs such as a maximum of one per store, a small size with plain black text, the inclusion of a prominent graphic health warning and that signs not be visible from outside the store. One organization stated that "every attempt should be made to reduce the non-informational contents of displays." Another respondent suggested that the regulations provide for "severe penalties for violations" and a mechanism for toughening the regulations at short notice "if manufacturers and retailers find a way around such measures."

Several of the non-governmental and governmental health organizations called for a ban on all price and availability signs at retail, with one suggesting that the Tobacco Act be amended to institute the ban. These organizations also proposed that a binder, catalogue or other publication be accessible on the counter top or elsewhere in the retail premises but only to adult consumers wanting information about availability and price. One organization was confident that such an arrangement would allow even a total ban on signage, including at bars and other locations to which minors are denied access, to withstand a Charter challenge.

C.4 Responses to the Questions Regarding Restrictions for Retail Outlets Where Sale of Tobacco Products is the Major Activity, for Cigar Rooms and for Duty-free Stores

The questions regarding whether retail display restrictions of tobacco products should apply to specialty tobacco stores, duty-free stores and cigar rooms yielded a sharp division in responses.

C.4.1 Opposition

Respondents opposed to these restrictions wanted exemptions or special rules for tobacconists. The duty-free industry also argued for special status.

Exemptions for Tobacconists
Most of the tobacco companies responding to the questions argued that special rules should be made for tobacconists and duty-free stores. One company argued that there would be no basis for extending display or signage restrictions to tobacconists because it would not protect any of the "at risk" groups identified in the consultation document. Given the nature of their clientele, there would be no reasonable basis for applying the proposed regulations to duty-free stores and cigar rooms.

Another company questioned how Health Canada could propose restricting tobacconists from selling a legal product that constitutes the majority of their sales and commented that it would be "asking the owner to go bankrupt because he cannot show his goods to smokers who choose to purchase those goods." That company also opposed any restrictions on cigar rooms stating that "cigar rooms are for people who know exactly what the are getting into." It questioned how covering up tobacco or tobacco-related accessories in cigar rooms would help cigar smokers since they are not addicted to smoking.

One health NGO suggested there may be grounds for an exemption for tobacconists from a generalized display ban because there "may be little in the way of 'accidental' exposure to tobacco promotion: in contrast to the situation in a convenience store or gas station, presumably most customers come with the intent of buying tobacco." That organization did suggest however that the exception be based on percentage of sales from tobacco and be available only to establishments that were already tobacconists at time the regulations come into effect and which prohibit access to minors. One of the governmental health organizations recommended that displays of tobacco and accessories bearing tobacco-related brand elements be permitted in those places designated as tobacconists. Tobacconists would have to meet certain criteria, as in the Smoke-Free Ontario Act, with the proviso that access to those outlets be restricted to those 18 years of age and older, regardless of adult accompaniment, and that the tobacco products not be visible from outside the premises.

An individual responded that, while all establishments open to the public should have displays regulated, he could envision a compromise as long as an establishment derived a significant portion of sales (for example, 50%-75% of sales receipts) from tobacco products and that access to the establishment was restricted to those 19 years of age and older. Another individual wrote that as long as displays are restricted to approved retail outlets, the issue of restrictions in these outlets is the lesser concern since it can be assumed that persons entering the store do so for the explicit purpose of purchasing tobacco products. However, because displays within these stores may still influence the quantity purchased, he suggested that coloured graphic displays that promote the use of tobacco products not be permitted and that there be a requirement for graphic information about the health dangers to be prominently displayed on posters. Another individual commented that it would be useful to partially exempt tobacconists, provided that their displays are not visible to passers-by. For example, a provision allowing children access if in the company of an adult "gets over the situation where a mother may have to leave a pram with baby or toddlers outside a shop in order to buy cigarettes."

Duty-Free Industry The duty-free industry, in comments from individual owners of stores at land borders and their association, stated that the imposition of the proposed restrictions on their industry would have disastrous consequences while not furthering the goal of reducing inducements to underage smokers, infrequent smokers and former smokers. The industry asked that Health Canada recognize that duty-free shops are substantially different from domestic retailers and convenience stores. Significant physical and regulatory safeguards have already been put in place by the federal and provincial governments. It asked that Health Canada exempt duty-free stores from any further restrictions on retail tobacco displays.

Respondents from this sector argued that duty-free stores are in fact "inconvenience stores" because "the rigorous purchase process at land border duty-free shops constitutes an onerous obstacle for consumers" compared to convenience stores and other retail establishments. They also mentioned that:

• Duty-free shops account for less than 1% of tobacco sales made in Canada.
• Neither illicit tobacco nor illegal tobacco products are sold in duty-free shops because inventories are strictly controlled by both federal government and shop licensees.
• Duty-free stores are not the destination of choice for people making a quick impulse purchase of a tobacco product because:
  • duty-free shops are located in isolated and secure locations only accessible by vehicle;
  • potential customers often must pay tolls each way to cross the border;
  • potential customers are subject to lengthy delays due to border congestion and can be subjected to customs border inspections on both sides of the border; and
  • duty-free shops only sell cigarettes by the carton, removing temptation from both first time smokers and struggling former smokers.
• The regulatory environment in which duty-free stores operate effectively ensures that tobacco products are not sold to underage consumers, unlike domestic retail and convenience stores (92% of duty-free customers are over 30 and 97% of customers making tobacco purchases are over 26 ).
• The U.S. government prohibits the importation of tobacco by a minor.

The duty-free industry also made reference to exemptions in Ontario and Québec legislation which deal with the retail display of tobacco products and to the existing exemption in the federal Tobacco Act and regulations (exemption from the prohibition on handling tobacco products before purchase).

C.4.2 Support

One retailer association argued against an exemption from any retail display restrictions for tobacconists and duty-free stores because it would provide them with an "explicit unfair advantage." If exempted, they "could continue to reap the benefits of tobacco displays and promotions while stores that are no longer allowed to display and promote tobacco products may be forced to give up the revenue derived from tobacco product sales and merchandising agreements." One of the tobacco companies also took the position that retail display restrictions should apply to tobacconists and duty-free stores provided that a reasonable age-restricted format can be jointly developed and implemented.

Non-governmental and governmental health organizations generally supported extending retail display restrictions to tobacconists, duty-free stores and cigar rooms. One organization stated that there is no health rationale for exemptions while another commented that "the fact these outlets may restrict their clientele to adult smokers should not be considered a rationale for an exemption for this type of retail outlet from a general prohibition, as smokers are also entitled to protection from tobacco marketing." It added that "the only rationale to not restrict displays of tobacco products and branded accessories in specialty stores would be a political decision to appease the short-term commercial interest of tobacco specialty shops." Another organization supported display restrictions in these venues as a way of reducing impulse purchases by adults. Several organizations and an individual respondent supported a complete display ban in all retail outlets including duty-free stores because "youth are free to enter without restriction." One individual respondent wrote that smokers are at risk wherever they purchase their tobacco products, that they are not exercising free will when they enter these establishments and that they should be afforded the same protection as all other consumers.

Some organizations suggested conditions for these retail outlets if exemptions are allowed. Suggestions included a requirement for 75 - 90% of sales to be from tobacco products and accessories, that displays not be visible from outside the store, that prominent cessation information and health warnings be part of requirements to balance product displays, that no person under the age of majority be permitted access, that retailers not receive any payment or consideration for displays and that there be a sunset date for the exemption.

One health NGO described the exemption of cigar rooms in Québec from the provincial display ban as "an unfortunate loophole that needlessly exposes some workers to second-hand smoke." One individual recommended that the display of tobacco products be allowed in cigar rooms provided the cigar room is adult only and sells only tobacco products, that the displays are not visible from outside the room and that the room is subject to signage and other relevant regulations. He also argued that since duty-free stores sell non-tobacco products, they should not be allowed to display and promote tobacco products.

C.5 Responses to the question regarding the regulation of displays of non-tobacco products (other than accessories) carrying tobacco product brand elements

Similar to the proposal on branded accessories, most of the responses to this question came from non-governmental and governmental health organizations. As with branded accessories, these organizations thought that the display of non-tobacco, non-accessory items bearing brand elements should be restricted like tobacco products.

One NGO commented that branding collateral items serves the same purpose as any other advertising and should therefore have the same restrictions. Another echoed that idea, stating that there is no logical reason to accord different treatment to tobacco-branded accessories and to other unrelated products bearing tobacco brand elements. Another asked what other purpose there would be to having a tobacco related-product brand element on a mug or clock than to advertise.

Another NGO reported that Health Canada has had significant experience with tobacco companies undermining promotional restrictions by creating alternative products to promote. Another respondent asserted that these products should not just be regulated, but eliminated.

One individual correspondent referred to a professor of human learning who had said that "part of the problem of quitting smoking lies in persistence of the 'habit family hierarchy' that supports smoking behaviour." This hierarchy includes "seeing a pack of cigarettes, packing a pipe, operating the lighter" and other activities and the "presence of these cues initiates and reinforces smoking on the part of persons having this habit."

Response from the tobacco industry was limited. One respondent supported guidelines similar to those for tobacco products. The other stated that durable goods bearing a tobacco logo do not portray smoking as a normal activity. Rather, these products are just a novelty. There is no logical reason for restricting them.

C.6 Responses to the Question Regarding the Regulation of Dispensing Devices, as a Means of Promoting Tobacco Products

Most of the responses to this question came from non-governmental and governmental health organizations. Many of these organizations and individuals supported further regulating dispensing devices such as vending machines. One organization wrote that vending machines "have historically served as mini-billboards for tobacco products, displaying brand imagery and product descriptions." Another warned that "if displays in adult-only venues are restricted but vending machines are not subject to any restrictions, expect a proliferation of brand-specific machines with brand-related imagery."

One of the organizations favouring further restrictions on vending machines argued that the devices "encourage people to smoke making it difficult for smokers who are trying to quit or to maintain their cessation status" and that it is difficult to prevent underage people from using them. The latter view was echoed by one of the individual respondents who considered vending machines to be "static promotional vehicles for cigarettes" which offer no way to verify the age of the person purchasing the cigarettes. The organization recommended that only simple lettering in black and white be allowed on the machines with no glass windows for viewing the product. Another organization recommended that the dispensing devices "be altered to displaying only name brand in plain print next to the dispensing button to reduce the impact of product advertising cues." This organization also suggested that cessation information be prominently displayed on dispensing devices.

Several organizations went further, recommending that dispensing devices be banned as in a number of provinces. One organization commented that evidence illustrates that increasing access to products generally increases use and that therefore reducing the number of outlets, including dispensing devices, can be expected to reduce tobacco use. On the other hand, several of the organizations felt that no further regulation was needed for dispensing devices in non-public places.

Three tobacco companies responded to this question, with one agreeing that there should be guidelines similar to those for the retail display of tobacco products, one confirming that the location of dispensing devices should be regulated and one stating that they did not understand the question since the surface of dispensing devices is not exempt from the ban on the promotion of tobacco products set forth in section 22 of the Tobacco Act.

Appendix - List of Respondents

Retailers and Distributors

• Bee's Food Market (British Columbia)
• Canadian Convenience Store Association
• Cigar Studio (Toronto, Ontario)
• Costas Michael - Store Owner (British Columbia)
• Gas King Oil Co. Ltd (Southern Alberta)
• Mac's Convenience Stores Inc. / Couche-Tard
• National Association of Convenience Stores
• Ontario Convenience Store Association
• Viva express (Ontario)
• Western Convenience Stores Association

• A store owner (British Columbia)

Tobacco Industry

• Afficianado -Wholesale Cigar Corp. (plus attachment of ~12 survey forms from current regular retail and wholesale customers) (Edmonton, Alberta)
• Casa Cubana (St-Laurent, Québec)
• Havana House (Toronto, Ontario)
• House of Horvath (Toronto, Ontario)
• Imperial Tobacco (Montréal, Québec)
• JTI-Macdonald Corp. (Mississauga, Ontario)
• Kretek International (Mississauga, Ontario)
• National Smokeless Tobacco
• Old Port (Longueuil, Québec)
• Rothman, Benson & Hedges Inc. (RBH) (North York, Ontario)
• Small Guys Tobacco Group

Non-Governmental Organizations

• Action on Smoking & Health
• Alberta Cancer Board
• Alberta Medical Association
• Alberta Medical Association, section of Community Health Physicians
• Canadian Cancer Society (plus 3 supporting responses)
• Canadian Lung Association
• Canadian Medical Association
• Cancer Society of New Zealand
• Central Alberta Tobacco Reduction Action Coalition
• Centre for Addiction and Mental Health
• Citizens for Civil Liberties
• Coalition for a Healthy Dryden (Ontario)
• Coalition for a Smoke-Free Huron (Ontario)
• Coalition for a Tobacco-Free Peterborough (Ontario)
• Coalition québécoise pour le contrôle du tabac (plus 12 supporting responses)
• Comité des travailleurs du tabac
• Hamilton Crew for Action Against Tobacco (Ontario)
• Hastings & Prince Edward Counties (Ontario)
• Heart & Stroke Foundation of BC & Yukon
• Info-tabac
• Lung Association of Saskatchewan
• Niagara Council on Smoking & Health (Ontario)
• Non-Smokers' Right Association
• Ontario Campaign for Action on Tobacco
• Ontario Lung Association
• Ontario Lung Association, Ontario Offices (6 identical responses)
• Ontario Tobacco Research Unit
• Ottawa Council on Smoking and Health (Ontario)
• Physicians for a Smoke-Free Canada (plus 1 supporting response)
• Saskatchewan Coalition for Tobacco Reduction (plus 15 reporting responses)
• Saskatchewan Medical Association (plus 1 supporting response)
• Saskatchewan Public Health Association
• Saskatchewan Registered Nurses' Association (plus 9 supporting responses)

Government Organizations

• Algoma Youth Action Alliance (on letterhead of the Algoma Public Health Unit) (Ontario)
• Calgary Health Region
• Exposé youth group (initiative of Ottawa Public Health) (15 e-mail messages) (Ontario)
• Halton Region Health Department (Ontario)
• Health Canada - Youth Action Committee on Tobacco Issues member (Winnipeg)
• Kingston, Frontenac and Lennox & Addington Public Health (Ontario)
• Mississauga and Brampton Youth Action Alliance (on behalf of Extinguish, a group of 13 peer leaders) (Ontario)
• Municipality of Chatham-Kent (Ontario)
• North West Youth Action Alliance (2 almost identical responses) (Ontario)
• Ottawa Public Health (Ontario)
• Peel Region Public Health Department (Ontario)
• Peterborough County-City Health Unit (Ontario)
• Porcupine Health Unit (Ontario)
• Province of New Brunswick (tobacco inspector)
• Renfrew Country & District Health Unit (Ontario)
• Saskatchewan Health
• Simcoe Muskoka District Health Unit (Ontario)
• South West Health Authority (Nova Scotia)
• Thunder Bay District Health Unit (Ontario)
• Toronto Public Health (Ontario)
• Wellington-Dufferin-Guelph Public Health (Ontario)

The Public

• 42 respondents

Other Respondents

• Dingwall Medical Clinic (Dryden, Ontario)
• Marshall McLuhan Catholic Secondary School (Toronto, Ontario)
• Stan Shatenstein, Contributing Editor - Tobacco Control