Written pleadings filed by the Attorney General of Canada with the Quebec Superior Court

Appendix 7A

Chronological Excerpts from Parliamentary Business (Bills C-71 and C-42)

BILL C-71: TOBACCO ACT

On December 2, 1996, Mr. David Dingwall, Canadian Minister of Health, tabled before the members of Parliament Bill C-71 "An Act to regulate the manufacture, sale, labelling and promotion of tobacco products, to make consequential amendments to another Act and to repeal certain Acts." The short title is the "Tobacco Act" (s.1).

Minister's statements during the tabling of Bill C-71

In his speech presenting the Tobacco Act (Bill C-71, ED-52) in his first reading, the Minister of Health presented:

1. That the Tobacco Act was:

   ... a central element in our government's comprehensive tobacco control strategy. It complements the tobacco tax increase and the anti-smuggling initiatives announced last week, as well as the education programs designed to make Canadians more aware of the health consequences of tobacco use.

   ED-55, p. 1

2. The focus of the bill is simple: health. Let there be no doubt on this particular point. While there are many interests involved in this debate, health, especially the health of young Canadians, is of paramount concern.

   ED-55, p. 1

3. The government recognizes the complex and pervasive nature of tobacco use in our society. It designed a balanced and an integrated strategy that takes into account the various factors that influence the smoking decision process, particularly how these factors affect young Canadians.

   ED-55, p. 1

4. This bill addresses the environment, messages and opportunities that affect attitudes, beliefs and behaviours about tobacco use. It does so by restricting the access young people have to tobacco products. It places reasonable limits on the marketing and promotion of these products. It increases health information on tobacco packaging and it establishes powers needed to regulate tobacco products.

   ED-55, p. 2

The cost of tobacco on the Canadian economy

Smoking costs Canadians approximately $15 billion a year, a staggering figure.

ED-55, p. 3

Youth

Of particular concern is the pattern of youth smoking. Approximately 250 000 Canadians each year take up smoking. Eighty-five per cent of these new smokers are under the age of 16 ...

ED-55, p. 3

Madam Speaker, 29 per cent of young people between the ages of 15 and 19 smoke. Fourteen per cent of kids between the ages of 10 and 14 smoke. Half of these smokers will die prematurely of tobacco related illness. The need for action is clear.

ED-55, p. 3

The result is a bill that is balanced and reasonable and that responds to the factors that lead far too many Canadian children to smoke. About two-thirds of all young people try cigarettes. For about half of them, experimentation leads to a habit that becomes regular and addictive over a two or three year cycle.

ED-55, p. 4

Restricting youth access to tobacco products as much as possible is therefore critical. Restraining access and making it difficult for children ages 10 to 14 and teenagers to purchase cigarettes decreases the likelihood that those experimenting with tobacco will graduate to addiction. The Tobacco Act will introduce such restrictions.

Photographic identification will be required when proof of minimum age is requested by retailers. As corner stores and gas stations become less viable as a source of supply for young smokers, they will turn to other avenues.

ED-55, p. 4

Health information

In order to enhance public awareness of the hazards of tobacco use, this legislation will increase the amount of health information to be displayed on tobacco product packaging.

Studies confirm that cigarette packaging is second only to television as a key source of health information about tobacco. A 1996 survey conducted for Health Canada revealed that 75 per cent of smokers want health warning messages to remain on cigarette packages as a reminder of some of the health consequences of tobacco use. Half of these smokers who tried to quit or cut back confirmed that labelling on the packages contributed to their decision.

In another study that same year, the majority of Canadians favoured expanding the amount of information on tobacco packages about the presence and effects of some of the toxic constituents in tobacco and tobacco smoke, such as arsenic, lead and others.

This bill will require that information. The Tobacco Act will also address the role that promotion plays in the decision to smoke. Promotion does much more than just convey factual information about a product. Through associations with people, objects, events and ideas, promotion creates a brand identity or image that influences and shapes the attitudes, beliefs and behaviours of consumers and potential consumers.

ED-55, p. 5

Tobacco product promotion

Clearly it is not the exposure to one ad, one display in a convenience store or one tobacco sponsored event that triggers the decision to smoke. People do not get up in the morning and decide suddenly to take up smoking, as some people may have suggested. As I have said before, the decision to smoke, which includes the decision to start and the decision to continue, is a gradual one.

Tobacco promotion contributes to that decision and hinders the quitting process by conveying as many positive and reassuring impressions as possible that smoking is desirable, socially acceptable and more prevalent in society than it actually is, that it is sexy and cool. One should do it to be part of the game.

It is the cumulative effects of tobacco promotion that we as legislators, not members who are bound by political ideology, but those of us as legislators transforming the political ideologies that are in the House, that we must address.

...

The tobacco industry insists that its marketing campaigns do not target youth but that is not the issue here. Whatever the ostensible intent of the tobacco companies, their rich promotional campaigns reach youth. Kids cannot help but be exposed to the images of tobacco that appear on every possible medium in every conceivable location across this country. Being more aware of promotional activities than other age groups, they are susceptible to it. An Ontario study showed that they can name the tobacco sponsors of sports and cultural events. In a Canada-wide survey, 88 per cent could name the country's two most popular brands of cigarettes. That is alarming.

It is not possible to promote a particular brand of a cigarette without at the same time promoting smoking. Our objective is to diminish the prominence and the exposure of tobacco promotion in order to diminish its reach and its influence.

The bill will therefore prohibit tobacco product advertising such as broadcast advertising and billboard, bus panel and street advertising. It will permit tobacco companies to communicate product and brand preference information in print ads in publications that are primarily read by adults, in direct mailings to adults and in places where children are not permitted by law, for example premises that are licensed to sell various alcoholic beverages.

Under the bill the use of tobacco brand names or logos on youth oriented products or those with lifestyle connotations will not be permitted. Young people should no longer serve as walking billboards for tobacco products by wearing ball caps or backpacks emblazoned with cigarette brand names or symbols.

...

Finally this legislation will give government the authority to regulate tobacco products. While we do not plan to exercise this authority right away, it is important that we have the flexibility to respond quickly to new products that may be introduced on to the market, as well as the developments in social and scientific knowledge as it evolves.

If and when it becomes possible to make tobacco products less hazardous without inadvertently creating new health hazards or triggering negative economic effects, we will have the means to do so.

The legislation will also ensure that we have the information we need to effectively monitor and enforce the production, promotion and sale of tobacco products. Tobacco manufacturers will be required to provide the government with product and sales information as well as information about their manufacturing, distribution and promotion practices.

ED-55, pp. 5 to 7

Taking into account the Supreme Court ruling

Great care has been taken to ensure the measures contained in this legislation reflect the guidance provided by the Supreme Court of Canada and respect the Charter of Rights and Freedoms.

...

Contrary to what the tobacco industry may suggest, the Supreme Court of Canada recognized a link between certain forms of tobacco advertising and consumption. In particular the Court stated that lifestyle advertising may as a matter of common sense be seen as having a tendency to discourage those who would otherwise cease tobacco use from doing so.

The Court identifies options which would be a reasonable impairment of the right of free expression, namely: a partial ban on advertising which would allow product information and brand preference advertising; a ban on lifestyle advertising; measures to prohibit advertising aimed at children and adolescents; and attributed health messages on tobacco product packaging. These are precisely the measures that are incorporated in this bill. These clarifications are important because they set the context for the comprehensive and integrated set of measures that are contained in the legislation before us.

This legislation is a product of a deliberate and thoughtful process. We have taken the guidance of the Supreme Court of Canada. We have studied the results of the research conducted by and on behalf of Health Canada as well as the extensive body of international data on tobacco promotion and tobacco use.

ED-55, pp. 7-8
(also see ED-59, p. 4)

Solution to the tobacco epidemic

There is no magic solution to the public health epidemic of tobacco use in our society. There is no law that can turn this problem around overnight, but we can take steps to make tobacco less acceptable and less accessible to youth. We can take measures to counter the positive aura that so often contributes to kids' decisions to smoke. We can ensure that people have the information they need to understand what smoking does to their body and to those exposed to tobacco smoke. We can strike a balance between the reality of tobacco use, the charter of rights and the health interests of Canadians.

Our first priority is the health of Canadians and young Canadians in particular. We have proposed steps which should reduce their tobacco use and lessen the encouragements to smoke they encounter all around them. The bill will help to reduce the sense that tobacco use is just a right of passage for young people on the way to a glamorous adult life.

ED-55, p. 8

On December 5, 1996, the Tobacco Act was referred to the Standing Committee on Health.

The Tobacco Act at the Standing Committee on Health

On December 6, 1996, the Minister of Health commented to the members of the Standing Committee on Health:

The factors at the source of the Act

Hon. David Dingwall (Minister of Health): ... Let me briefly outline the factors that shape this bill, Mr. Chairman. Last December the government released its Blueprint to protect the health of Canadians. The document defined our health objectives and the approach to tobacco control we proposed at that time.

Since the release of the Blueprint, we have consulted extensively with Canadians from coast to coast to coast. We have considered the views expressed in follow-up consultations with medical and public health experts, provinces and territories, community groups, non-governmental organizations, affected industries, arts and sports groups, and individual Canadians. We have reviewed more than 3,000 submissions presented to Health Canada. Let me emphasize here that we will follow the normal regulatory process and will consult further on the regulations. Those affected will have ample opportunity to comment on the regulations as they are developed.

We also considered research undertaken by Health Canada and a significant and increasing international body of research. We consulted and worked closely through the drafting process with the Department of Justice to ensure our proposals reflect the decision of the Supreme Court of Canada. The Justice Minister has already expressed his confidence that Bill C-71 respects the Supreme Court ruling and the Charter of Rights and Freedoms.

All these factors shaped our proposals. They account for the fact that while our approach reflects the directions outlined in the Blueprint, we have refined the original proposals in some areas.

On advertising, for instance, the Blueprint called for the most comprehensive prohibition on advertising possible. That is what we are proposing. Bill C-71 will prohibit all tobacco advertising except non-lifestyle ads in publications with primarily adult readership and in direct mailings.

...

The government is not proposing to prohibit tobacco advertising or sponsorship promotion, but rather to limit and control the manner in which these activities may be carried out. This responds to the decision of the Supreme Court, which recognized the validity and importance of the government's objective, but stated that tobacco companies should be allowed to communicate with consumers of their product. We are acting to limit the damage ultimately done by the inducements to use tobacco products and brands, inducements that counter health education and the best health advice society can offer to young people: simply, don't smoke.

...

In conclusion, Bill C-71 has been very carefully drafted, taking into account the decision of the Supreme Court of Canada. Its goal is to achieve all that a law favouring health could hope to achieve while preserving rights protected by the Charter of Rights and Freedoms.

ED-56, pp. 3 to 5

The Act is not a total ban on advertising

Ms. Judy Ferguson (Director General, Health Policy and Information Directorate, Department of Health): Advertising will be restricted at the point of sale. We are limiting advertising to printed material in publications with primarily adult readerships. We are limiting it to direct mail to adults, which includes e-mail, and we will be limiting it to signs in places where young persons are not permitted by law.

As for advertising that companies will be allowed to do, we are looking at the kind of ads that would be detailed in regulations that would be the subject of consultations with the industry. There would be health messages on the ads. There would be toxic-constituent information on the ads, but there would likely as well be a depiction of some sort of the tobacco package, which is one of the more significant advertising tools the tobacco company has.

...

Mr. Dingwall: If I may, Mr. Chairman, to my colleague, they will be able to put their name on the product. If they weren't allowed that, we would be in violation both of trademark and of the Charter of Rights and Freedoms because the product is not deemed to be an illegal product. That's the balance here.

ED-56, pp. 10-11

Mr. Dingwall: ... As to the legislation and the policy, we looked at the four key elements of marketing strategies, and whether it be Nike, Pepsi, Coca-Cola - you name it - there are four key elements: the price, the place, the product itself, and the promotion. What we've done in the legislation and in the policy is try to address each of those key elements in a very balanced and comprehensive way.

...

On the place, there have to be some restrictions on the place in terms of where this product is sold and the kinds of conditions in which it is sold.

I say to that individual who says government is overstepping the threshold that the fact of the matter is that 41,000 Canadians die each year because of tobacco consumption. Ministers of health in Quebec, Alberta, B.C. and Nova Scotia say, "This is $3.5 billion to our health care systems." Therefore we had to put some restrictions on the place, on the promotion of the product, and on the product itself. We've tried to do that.

On the question, why not ban the substance, if we were to ban the substance, I can just see what would happen. We have seven million Canadians who are addicted to smoking in this country, and I think we would trigger a round of smuggling and racketeering in this country that we haven't seen since the days of prohibition. Certainly it's not our intention both to go to racketeering and, if you will, smuggling, because we think in the end more people will end up smoking as a result of that.

We can't ban the substance, but we certainly can put restrictions on the various elements to deny, as much as humanly possible, the access for young people to cigarettes and their effects on them. The longer we can keep the substance away from them, the greater the probability they will not be addicted.

ED-56, p. 14

Regarding the regulation of tobacco products (s. 7 of the Act)

Mr. Speller: ... RJR-MacDonald sent out a fax overnight. I got it this morning. It says:

Regulatory powers - the Bill enables and requires the government...to enact extensive regulations which are not subject to review by Parliament.

Is that true?

Under another area, they say:

Penalties are extreme - any person can accumulate full penalties for each day that an offence is committed. A sign visible for 30 days is punishable by 60 years in prison.

I'm wondering also if that's the case.

Finally, very briefly, on the whole question of regulating nicotine, are there any studies on what happens, for instance, when you lower nicotine? Will people go to other brands, such as U.S. brands, and as a result hurt my tobacco growers? What happens when you lower nicotine? Do people try to get the nicotine somewhere else? Do you have any answers to those?

Ms. Ferguson: About regulation of nicotine, there are studies, and we would have to do research of our own, to assess what the impact of lower rates of nicotine would be. Nicotine is the addictive substance of tobacco products. It's what gives people the buzz; the hit. With every draw, it takes seven seconds for the nicotine to reach the brain. There are different strengths of nicotine within various brands of cigarettes, as you know. One of the things we would want to ensure is that if we do adjust the level of nicotine we wouldn't be encouraging some kind of compensatory behaviour whereby people would smoke more or they would attempt to get their supply of higher-level-nicotine cigarettes elsewhere. It's not something we are contemplating doing in the immediate future. Clearly research would have to be done to make sure, as I said, we wouldn't inadvertently create negative health consequences or trigger economic impacts that are undesirable.

ED-56, p. 21

Mr. Dubé: Why did you call this the "Tobacco Act?" That creates a bit of a problem, because when you say "tobacco," that can also concern tobacco producers even though it says the opposite in the legislation. It's clear that the purpose of the legislation is to control the selling of advertising and tobacco products. Why did you only refer to tobacco?

Ms. Pégeot: There are many reasons for this. First of all, it was short and simple and in parallel with other legislation, such as the Food and Drugs Act, Secondly, the legislation affects various aspects of tobacco control, the product itself, access, promotion and labelling. Therefore, we felt that the title properly reflected the content of the legislation. Lastly there are also provincial laws as you probably know which concern tobacco; they refer to tobacco control and regulations. We wanted to distinguish our legislation from provincial laws.

Mr. Dubé: Let me jump ahead to clause 7, which stipulates that the Governor in Council may make regulations establishing standards for tobacco products, etc. I would like you to explain what "prescribing the amounts of substances" means.

Ms. Pégeot: That means that when toxicological knowledge or social science knowledge about the level of use of the product will evolve, or if a new product comes on the market and the Governor in Council believes that this product should not be on the Canadian market, this power will enable the Governor in Council to prescribe the amount of substances.

For instance, this could be nicotine, carbon monoxide contained in smoke or tar contained in tobacco and smoke. The prescription of amounts of substances allowed will mean that the product can be relatively safe. These measures will only be taken when the Governor in Council is convinced that they must be in order to protect the health of Canadian men and women.

...

Ms. Pégeot: This kind of power exists in other legislations administered by the department, more particularly the Food and Drugs Act or the HazardousProducts Act. This kind of power did not exist before for tobacco products and it was judged necessary that this kind of power could be exercised. If science evolves and gives us the necessary knowledge that would allow the Governor in Council to take certain steps so that the product becomes safe, or if a product is put on the market and, for all kind of reasons, is really judged to be unacceptable for Canadians from a health point of view, the Governor in Council, at that time, should take these kinds of steps. It is his responsibility.

ED-56, pp. 26-27

Regarding section 30 of the Act

Mr. Speller: Thank you. I have a few questions, Mr. Chair. As you know, the Ontario Flue-Cured Tobacco Growers' Marketing Board is coming next, so they will ask my growers' questions for me.

I want to go back to this thing that I got overnight - I think all members did - from RJR-MacDonald. I'm not sure if you've seen it. They bring up a couple of other interesting points and I would like your response to them.

Under the heading of "Product advertising," they say:

"the Bill infringes upon rights, affirmed by the Supreme Court, to communicate product and brand preference messages, by prohibiting brand signage at a point of sale."

In terms of retail displays, they say:

"retailers would lose millions of dollars in contract payments due to the ban on brand signage and further regulations that limit retail displays."

Finally, in terms of sponsorship, they say:

"limitations on the ability to promote events using brand names significantly reduces their commercial value so that major contracts will not be renewed."

Could you comment on RJR-MacDonald's assumptions?

Ms. Ferguson: With respect to their first point, as I understand it, that brand signage is being prevented at point of sale, promotion is being prevented at point of sale, but display is not. The one thing that the Minister did mention briefly in his opening statement is that the Blueprint suggested that we limit the display to one package per brand. Through the consultation process we agreed that was not practical, so the display of brand signage will be permitted. It will be regulated and we will discuss with or consult with the industry as to what that display will look like and how big it will be.

ED-56, p. 35

Regarding sections 18(2) and 21 of the Act

Mr. Dubé: On page 7, subsection 18(2)(b), just at the top of the page, it says:

(b) a report, commentary or opinion in respect of a tobacco product or...

The way it's worded and in that context, it's as though it were prohibited. For example, the wording leaves the impression that someone, either an expert or a promoter who, once the law is passed, wanted to talk about that, even if it's just before a committee, during a public meeting, to say that in his opinion it goes too far, would not have the right to express that opinion any more.

Ms. Pégeot: No, that is not the intent of the subsection. You have to read subsection 18(2) in the context of the definition of the word "promotion" in 18(1). This definition would not at all prohibit the kind of intervention you have just mentioned.

Mr. Dubé: I don't know in what clause, but it says that in the regulations, the only things allowed are those that are authorized by the Act. You say that it's allowed, but it's not written. If it's not written, then it's prohibited.

Ms. Pégeot: This paragraph has to do with the application of the Act and what it says...

Mr. Dubé: No, I'm talking about 18(2).

Ms. Pégeot: That's it. Subsection 18(2) deals with what the law does or does not apply to. It says that the definition of "promotion" does not apply to that kind of activity. So, for example, it does not cover lobbying activity or the activity of people making reports or giving opinions for or against any specific tobacco products.

As a matter of fact, this paragraph was specifically drafted so that the kind of activities you described would not come under the Act.

Mr. Dubé: I had similar reservations concerning clause 21. Line 25 in subclause 21(1) says:

...by means of a testimonial or an endorsement...

That struck me as a bit excessive but if it's taken to refer to the representatives of a tobacco company merely speaking to people about a particular company or commenting on it without necessarily advertizing or using a loudspeaker... Would that type of situation be targeted?

Ms. Pégeot: No, clause 21 applies to a well-known personality saying that he smokes a particular brand, for example, and receiving payments for such an endorsement. So it amounts to having some personality promote the product. I don't know whether you are familiar with the Joe Camel character in the US. He has become a character used in comics and is now seen on packs of cigarettes playing golf or baseball. This is the type of concept that comes under clause 21.

Mr. Dubé: It may depend on where you happen to be. Personally I'm not known in Ottawa but I think I am known in my constituency.

Ms. Pégeot: Yes, if you were paid by a tobacco company to say that you smoke Rothmans, du Maurier or any other brand, you would then come under section 21.

Mr. Dubé: So it's the fact of being paid that counts. If I did it free, what would happen?

Ms. Pégeot: The purpose of the Act is to control the promotion of tobacco products. So whenever the activity is considered to be promotion, it would come under the Act.

Mr. Dubé: Even if I weren't paid to do so?

Ms. Pégeot: That depends. You can certainly tell your friends what brand of cigarettes you smoke. That is not a commercial activity. It's not someone with a commercial interest who is asking you to do that.

ED-56, pp. 38-39

Directions given by the Supreme Court in the RJR - MacDonald case

Ms. Ferguson: The Supreme Court set out some fairly clear directions, some parameters within which the government could act. We have looked at those provisions and we feel the legislation has been crafted - we've taken a lot of care to ensure it has been crafted - to respect the Charter. The Supreme Court indicated that tobacco companies have a legal product, that they are entitled to communicate information to adult consumers about that product, and the bill is structured and crafted in such a way as to permit them to do that.

The Court also indicated, accepting the evidence that there was a relationship between advertising and consumption and validating the federal government's wherewithal to regulate the promotion of tobacco products, that it would be a reasonable limit on freedom of expression if the promotion is targeted at youth or has a lifestyle connotation. We have taken those parameters and that is how we've crafted the bill, so that any promotion that appeals to youth or is associated with youth or has a lifestyle connotation is an area that is restricted. We feel we have taken a lot of care to reflect the guidance provided by the Supreme Court.

The Chairman: I'm sure the tobacco manufacturers will say before this committee what they've said to some of us in writing already: that the bill infringes upon rights affirmed by the Supreme Court to communicate product and brand preference messages by prohibiting brand signage at point of sale. What do you say to that?

Ms. Ferguson: The Court did allow certain alternative approaches. I understand that the tobacco companies have indicated or alleged that this would be a freedom of expression issue. But the Court did mention options such as a partial ban on advertising, a ban on lifestyle advertising, measures to prohibit advertising aimed at children and adolescents, as well as health labelling requirements with attribution.

We have taken that advice and have structured the bill accordingly. I can only refer you again to the comment of the Attorney General, who indicated that he was confident that the bill respects the Charter. We have worked with the Department of Justice to ensure that this is the case.

ED-56, pp. 47 and 48

Concerns over restrictions on sponsorship advertising

On December 9 and 10, 1996, the members of the Standing Committee on Health met with several groups with opposing interests regarding the smoking problem:

1. Industry representatives opposed to the Act;
2. Representatives from sports and cultural organizations sponsored by the tobacco industry;
3. Representatives from health organizations;
4. An expert witness consulted by the Committee on the economic consequences of the Act regarding job losses.

The monetary issues raised by the sponsorship of cultural and sports organizations by the three plaintiffs took up a significant part of the Committee's work and generated fear that these cultural or sports organizations would disappear because of the withdrawal by the plaintiffs who would no longer be interested in sponsorship given the restrictions listed in section 24 of the bill.

For example:

Mr. Yves Rocheleau (Trois-Rivières, BQ): Mr. Speaker, I will continue in the few minutes I have left to tell you how important the Grand Prix de Trois-Rivières mentioned earlier is for jobs. It generates 150 jobs, including 80 directly. It is an event of considerable economic importance for the Trois-Rivières region. It is an international event, because it is broadcast throughout North America. It is televised because it is permitted.

ED-59, p.1

Mr. Roger Pomerleau (Anjou-Rivière-des-Prairies, BQ): Mr. Speaker, I am pleased to speak to the amendments to Bill C-71. I would like to thank the hon. Member for his passionate speech; it was probably because of the subject: tobacco.

The core of the problem with this bill is indeed sponsorship. The measures included in the bill could eliminate a number of cultural, sporting, and social events. Most Bloc members decided today, a Friday, to come back from Montreal to oppose this crazy bill, as Quebecers have asked us to.

On this entire issue, things are far from clear. Members opposite are telling us that it is clearly a health issue, and that we must legislate. Everybody recognizes that smoking is not healthy, and that we must do all we can to prevent our young people from starting to smoke. Unlike the two previous speakers, I am a long-time smoker and, despite several tries, I have not been able to quit. I think it is important to tell our young people not to start smoking, so they will avoid the problem of trying to quit later.

Since we agreed on this in principle, we voted for the bill at second reading. However, we must admit that sponsored cultural and sporting events are basically healthy and may even encourage potential smokers to be more active. We know that, generally speaking, athletes are not heavy smokers.

We are here today to speak to this bill. I would like to point out that not too many members across the way stood up for Quebec's interest in this matter. If I may, I would like to quote from an article published in LaPresse on February 16, in which the Liberal member for Outremont, who was just mentioned as the exception in that he stood up for Quebec, is quoted by Réjean Tremblay as saying something like the following: "Everyone agrees with the intent of the legislation put forward by the Minister of Health of Canada."

ED-59, p.10

Mr. Maurice Dumas (Argenteuil-Papineau, BQ): ... The Health Minister maintains, without providing any exact figures, that several events have only a fraction of their funding coming from tobacco companies. It is important to note that, according to 16 compatible studies on 88 cultural and sporting events across Canada, it is estimated that these events generate $133 million in economic benefits as well as 2,179 jobs.

In fact, the public is clear on the subject: cultural and sporting events are greatly appreciated by Canadians. Several of these events provide fun and relaxation to some people and jobs to other people.

Bill C-71 is threatening these events and that is why the Bloc Quebecois cannot vote in favour of this bill at third reading. In Canada, tobacco companies sponsor cultural, sporting and other events to the tune of $60 million. In Quebec alone, sponsorship by tobacco companies totals nearly $30 million.

One must not think that the Bloc Quebecois' voting against this bill at third reading means it does not care about the health of Canadians. On the contrary, by voting in favour of this bill at second reading, the official opposition recognized the validity of the government's objectives, particularly the importance of the health of our young people under 18. We disagree with the steps taken by the government to meet its goals.

We agree with what was said by the representatives of the Quebec medical community who have formed a common front reminding federal and provincial governments that they unconditionally support any initiative to put an end to smoking. Unfortunately, Quebec is the province with the highest rate of smokers in the 15 to 19 age group, a third of whom start smoking before 13.

ED-59, p. 17

Second and Third Readings in the House

On December 11, 1996, the Standing Committee on Health reported to the House and during the second reading, amendments were made to sections 8, 12, 13, 14(e), 20, 22, 29, 31(3), 40, 44and 45. Section 42.1 was also added.

ED-53, ED-61 and ED-62
P-13 to P-16, P-37 and P-38

On March 6, the Minister of Health presented Bill C-71 to the House so that it could proceed to its third reading.

ED-63

In his presentation speech during the third reading, the Minister of Health, David Dingwall, stated the following:

As debate on Bill C-71 has already revealed, smoking has complex and diverse impacts and as the research mounts all around the world we are learning much more about the effects of that use. We are coming to understand more of the factors that influence the decision to smoke and yes, the decision to continue to smoke.

Let me underline one tragic fact. The decision to smoke is being made overwhelmingly by teenagers. Some 85 per cent of all smokers started before the age of 16. Those who suggest that this issue is about adult choices should keep that in mind.

...

Tobacco must be the best example of a preventable cost to medicare. But we estimate that tobacco use costs our society approximately $15 billion each and every year, about $3.5 billion resulting from the kinds of direct health care costs I have been talking about.

...

I wish to present to the House some facts that ought to be examined both in light of their substance and in terms of the devastating effects they can have on young people: 29 per cent of 15 to 19 years old and 14 per cent of 10 to 14 years old are currently smoking. Let us imagine a 10 [sic] disease, emphysema and other lung diseases? No. Smoking among teens aged 15 to 19 has increased by as much as 25 per cent since 1991.

...

The National Cancer Institute of Canada has issued a report entitle "Tobacco Marketing and Youth: Examination of Youth Attitudes and Behaviour on Tobacco Industry Advertising and Sponsorship." This is Canada's premier cancer research organization. It concluded an exhaustive review of the available science not only in Canada but indeed beyond our borders.

...

The United States will be implementing a full ban on sponsorship promotion in August 1998. I would like to share the following points from the federal registry of August 28, 1996.

The FDA has found that image based advertising is particularly effective with young people and that the information conveyed by imagery is likely to be more significant to young people than information conveyed by other means in advertisement.

The FDA also pointed to studies showing that children are exposed to substantial and unavoidable advertising... that advertising plays a role in leading young people to overestimate the prevalence of tobacco use, and that these factors are related to young people's tobacco initiation and use.

In essence it is a way in which to present an image and an environment that smoking is okay, that smoking some how is sexy, and that smokers should not worry about getting some form of disease in the future. It is a very well carved and focused strategy by the advertisers but in particular the tobacco companies.

The FDA also looked at sponsored events and found that the effect of sponsored events on young people who attend such events was enormous. Advertising affects young people's opinion of tobacco products, first by creating attractive and existing images that can serve as a badge of identification; second, by utilizing multiple and prolonged exposure in a variety of media; and, third, by associating the product with varied positive events and images.

The World Health Organization also recognized the link between tobacco sponsorship and consumption. It has found that the tobacco industry uses the sponsoring of sports and entertainment to complement and/or replace other marketing activities to reach large audiences and to associate their products with positive images.

...

We introduced a Blueprint in December 1995, whereby numerous consultations took place. We consulted widely with provincial and territorial governments, the health community, tobacco manufacturers, collateral industries, sports and cultural groups, and concerned Canadians. There were over 2,700 submissions in response to the Blueprint. Now, 15 months later, I stand before the House at third reading of Bill C-71. The bill contains reasonable measures that will restrict advertising and sponsorship promotion.

...

The government has taken into consideration the concerns of the arts and sports events that rely on tobacco company sponsorship. We have set an implementation period for the sponsorship restriction provisions. We will bring them into force in October 1998. This is effectively a two-season adjustment period.

ED-63, pp. 2, 3, 5 and 6

On March 6, 1997, the House of Commons adopted Bill C-71 (ED-64).

Study of the Tobacco Act by the Senate

On March 10, 1997, the Senate began study of Bill C-71 (ED-65).

On March 11, 1997, the Honourable P. Derek Lewis presented Bill C-71 during second reading and stated the following:

Honourable senators, I am pleased to rise today to begin the second reading debate of Bill C-71, the Tobacco bill. This bill has one clear and compelling purpose - the health of Canadians, especially the health of young Canadians. Let there be no doubt on this point.

Honourable senators, as the Minister of Health has made clear during debate in the other place, this bill is a central and critical element in the government's comprehensive tobacco control strategy. It complements education programs designed to make Canadians more fully aware of the serious health consequences of tobacco use, as well as the tobacco tax increase and anti-smuggling initiatives announced last November.

The government's tobacco control strategy recognizes the complex and pervasive nature of tobacco use in our society. It takes into account the various factors that influence the smoking decision process: the social environment, messages and events that affect attitudes, beliefs and behaviours about tobacco use. Bill C-71 addresses all of these, but most particularly how these factors affect the decision of young people to start and continue to smoke. Bill C-71 does this in a number of ways: One, it strengthens existing restrictions on the access young people have to tobacco products; two, it places reasonable limits on the marketing and promotion of these products; three, it increases, health information on tobacco packaging; and four, it establishes the powers the government will need to regulate the physical nature of tobacco products.

...

Of particular concern, honourable senators, is the pattern of youth smoking. More than 250,000 Canadian youths take up smoking every year. Eighty-five per cent of these new smokers are under the age of 16. Right now, 29 per cent of young people between the ages of 15 and 19 smoke. Fourteen per cent of children between the ages of 10 and 14 smoke. The majority of those young people who continue to smoke into adulthood will die of tobacco-related illness. The need for action is clear.

Some people argue that smoking is a matter of personal choice. Honourable senators, that is simply not so. All Canadians pay for the ravages of smoking. Smoking costs Canada's health care system over $3.5 billion annually. That is a lot to ask of the health system at a time when all levels of government are trying to restore fiscal sanity to their budgets.

The cost of smoking does not end at the hospital or the doctor's office. Canada's overall economy must also bear the consequences of smoking through lost productivity and lost income. Statistically, smokers are more likely to miss work than non-smokers. Smokers cost Canadian employers approximately $2 billion annually in employee absenteeism. That is 28 million days that are not worked by people who smoke. All told, the economic cost borne by Canadian society as a whole, due strictly to smoking, is approximately $15 billion.

...

Honourable senators may recall that in 1988 the government of the day introduced and Parliament passed, the Tobacco Products Control Act. This act banned advertising and restricted the promotion of tobacco products, and required packaging of tobacco products to display prominent health messages and information on toxic constituents. In a 1995 Supreme Court of Canada decision, key parts of the Tobacco Products ControlAct were struck down. In rendering its decision, however, the Court made some very helpful observations and rulings which provided guidance for acceptable legislation.

In the aftermath of the September 1995 Supreme Court decision to strike down key parts of the Tobacco Products Control Act, the tobacco industry said that it could regulate itself; but the industry's voluntary code failed at the starting gate, and the people it has failed the most are Canada's young people. That is the very same group which is most vulnerable to lifestyle advertising, sponsorship promotions and tobacco brand name associations. These promotional activities reinforce the mistaken notion that tobacco is normal or innocuous.

The government has taken great care to ensure that the legislative measures contained in Bill C-71 are consistent with the directions provided by the Supreme Court. In doing so, the government recognized that, in order to promote the health of Canadians, the tobacco control measures contained in Bill C-71 must be able to withstand court challenges as already threatened by the tobacco industry. The Supreme Court recognized that the detrimental health effects of tobacco consumption are both dramatic and substantial. The Supreme Court acknowledged that tobacco kills, and confirmed the right of the federal government to legislate controls on the advertising of tobacco products. As Justice LaForest wrote:

...the Parliament can validly employ the criminal law to prohibit tobacco manufacturers from inducing Canadians to consume these products, and to increase public awareness concerning the hazards of their use.

The Supreme Court also held that the purpose of the previous Tobacco Products Control Act, to reduce inducements to use tobacco in light of the health effects of tobacco consumption, is a valid and important legislative objective warranting limitations to the right of free expression.

In the majority judgment, Justice McLachlin wrote:

...even a small reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of free expression.

The government is firmly of the view that Bill C-71 accomplishes this in a reasonable and proportionate manner.

ED-66, pp. 3, 4 and 5

Before the Standing Committee on Legal and Constitutional Affairs

On March 19, 1997, the Minister of Health appeared before the Standing Committee on Legal and Constitutional Affairs and stated the following:

The government recognizes the freedom-of-speech issues raised by the control of tobacco promotion. In crafting this legislation, we have drawn on the guidance provided by the Supreme Court of Canada in its 1995 ruling on the Tobacco Products Control Act to ensure that Bill C-71 respects the Charter of Rights and Freedoms.

The Supreme Court of Canada recognized a link between tobacco advertising and consumption, and clearly confirmed that the federal government can control tobacco advertising under the criminal law power. The Court held that Parliament can:

...validly employ the criminal law to prohibit tobacco manufacturers from inducing Canadians to consume these products, and to increase public awareness concerning the hazards of their use.

The debate, therefore, is whether the restrictions in Bill C-71 are reasonable--reasonable in terms of the problem they attempt to address and reasonable in terms of the consequences they can be expected to have.

We believe that they are. While there may be some economic impact depending upon the business decisions ultimately taken by the tobacco companies, an assessment of this impact must also factor into the equation the economic costs caused by tobacco use, costs that amount to $15 billion each year in direct health care and lost productivity.

...

It is important to remember first that advertising and consumption are related. As I mentioned earlier in my remarks, the Supreme Court recognized this in its 1995 ruling on the Tobacco Products Control Act. However, it is also important to understand that the relationship cannot be reduced to a simplistic mathematical equation of cause and effect. It is clear to those who have researched the issue that the smoking decision process is extremely complex. There is no magic bullet. It is not just one factor that causes individuals to start or to continue to smoke. It is clear from the great weight of research in Canada and, yes, internationally, that a combination of factors, including sponsorship promotion, contributes to the decision to smoke.

The decision to smoke is not just about starting. It also includes the decision to continue to smoke and the decision to delay or avoid quitting. In my view, it is simply untenable to maintain that tobacco promotion does not influence these decisions. Since tobacco promotion is so pervasive in our society, it cannot help but reach young Canadians, so it is equally untenable to maintain that tobacco promotion does not influence youth smoking behaviours.

The tobacco industry has said that the decision to smoke or not to smoke is one for informed adults to make, but what they do not say is that the people who make the decision to start smoking are rarely adults. They are kids, your kids and my kids, young kids between the ages of 14 and 16. By the time they become adults, the decision not to smoke is too often undermined by the addiction to tobacco that has already set in.

...

The approach in Bill C-71 is consistent with the guidance provided by the Supreme Court of Canada. The Court determined that restrictions on the promotion of tobacco products are a legitimate means to achieve the government's health objectives and that such curbs are an appropriate response to the health impacts of tobacco use. These restrictions meet the Court's requirement that a causal connection be established between the legislative measures proposed and the benefits which are sought.

Madam Justice McLachlin said:

Where...legislation is directed at changing human behaviour... the causal relationship may not be scientifically measurable. In such cases, this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic without insisting on direct proof of a relationship between the infringing measure and the legislative objective.

...

I have emphasized from the outset of the debate over this legislation that Bill C-71 is, first and foremost, a health bill. It is about protecting the health of Canadians, particularly young Canadians, from the predictable and preventable consequences of tobacco addiction.

In writing the majority decision of the Supreme Court of Canada, Justice McLachlin said:

...protecting Canadians from the risks associated with tobacco use... constitutes an objective of sufficient importance to justify overriding the right of free expression guaranteed by the Charter.

Justice McLachlin further stated:

...even a small reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of right of free expression.

Senators, we have moved with care and diligence in order to get this legislation right. We have considered the effects of tobacco use. We have followed closely the guidance of the Supreme Court of Canada. We have weighed the available research and the potential impact of the proposed legislative measures.

...

Just as the government has taken guidance from the Supreme Court of Canada in drafting Bill C-71, I would hope that this legislation will offer some assistance and hope to parents. Parents do not want their children to smoke. They want their children to stay healthy. I believe the government has a responsibility to help fathers and mothers keep their children smoke-free.

ED-68, pp. 6 to 10

On page 17, he continues by saying:

In terms of the linkage [between promotion and tobacco use], which is a crucial issue for all of us to reflect upon, let me cite a few things. The National Cancer Institute of Canada has said clearly that there is substantial evidence that young people are aware of and respond to cigarette advertising. We will provide this information to you.

The U.S. Food and Drug Administration has said that evidence from social psychology and marketing research shows that image-based advertising, such as that employed by the cigarette and smokeless tobacco industries, is particularly effective with young people and that the information conveyed by imagery is likely to be more significant to young people than information conveyed by other means of advertisement.

The American Psychological Association provided expert opinion and specific citation to numerous studies to show that tobacco advertising plays directly to the factors that are central to children and adolescents and thus plays an important role in their decision to use tobacco. I have a number of others things that I will leave with the committee as well. There is good evidence available which makes the link between advertising and tobacco consumption by young people.

ED-68, p. 17

From March 19, 1997, to April 10, 1997, the Standing Senate Committee on Legal and Constitutional Affairs received 33 briefs and met with 61 witnesses representing opposing interests (ED-68 to ED-75), as well as experts in constitutional law summoned by the Committee itself (see Appendix B: List of Witnesses Heard by the Various Parliamentary Committees), for example:

• Hester Lessard, Faculty of Law, University of Victoria (ED-69)
• Gerald Gall, Faculty of Law, University of Alberta (ED-69)
• William Schabas, Professor, Université du Québec à Montréal (ED-70)

who commented on the 1995 RJR-MacDonald decision and Bill C-71.

The industry's point of view

On April 1, 1997, Mr. Robert Parker, attorney representing the Canadian Tobacco Manufacturers Council, consisting of the three plaintiffs, as well as their attorneys, Mr. C. Irving, Mr. S. Potter and Mr. Stephen Sofer, appeared before the Senate Committee.

ED-70, pp. 24 to 60

According to the industry, the fight against smoking is a controversial issue:

Mr. Robert R. Parker, Chairman and Chief Executive Office, Canadian Tobacco Manufacturers Council: ... Obviously, tobacco control is a contentious public policy issue. One of the reasons for that ongoing controversy is that various proponents often make unfounded assumptions about the industry's motives. Many assume wrongly that the manufacturers seek an entirely open marketplace with an uncompromised right to market their products as they see fit. In reality, the manufacturers have no quarrel with the right of the federal government to pursue policies aimed at reducing smoking preference and consumption. Nor do they oppose out of hand responsible and legally acceptable restrictions on the manufacture, promotion and sale of tobacco products, so long as they are workable. In fact, we have imposed such restrictions on ourselves for more than two decades.

The issue of effectiveness, however, and more specifically any evidence as to whether these tobacco control measures actually achieve their intended consequences, is the point at which we part company with many of the critics of tobacco and, indeed, with Health Canada.

ED-70, p. 25

The arguments put forth by Mr. Irving before the members of the Committee are similar to those presented before this Court.

ED-70, pp. 26 to 31

Industry research on their advertising

Mr. Potter: Yes, there are surveys conducted on people, just as Statistics Canada does quantitative surveys to find out how many people are smoking. That does not go to the question of whether an ad is produced on the basis of that information, and there are none. No ad is ever used unless it is repeatedly and extensively tested on people belonging to the target group. The target group of people on which those ad campaigns were tested were always current smokers of legal age to smoke.

ED-70, p. 35

Studying the link between sponsorship and consumption

Mr. Potter: You are right, the lawyers here are the outside lawyers of the three companies. My client thought, this being the Legal and Constitutional Affairs Committee of the Senate, that the way to be helpful to you was to send someone who could speak about legal and constitutional matters. That is why I am here. We had no forewarning of the question which has come from Senator Milne. I did not prepare for it, but I have given an answer on the basis of what I have seen, and I have seen a lot. I can go back and see if there is another answer or a more complete answer.

However, I do want to be clear, Senator Lewis. Surveys are one thing. Studies trying to come to grips with the link between a factor, for example sponsorship, and a result, let us say consumption -- if there is such a link -- is quite different. All companies that sell anything survey their market all the time to try to learn what the market actually is.

All companies do surveys trying to find out what is happening but I am aware of no study of what link there is, if any, between sponsorship and consumption.

ED-70, p. 39

Understanding sections 18 to 22 of the Tobacco Act according to Mr. Potter

M. Potter: Senator, with all due respect for Professor Schabas, I believe he is looking at it from a professor's chair. I encourage you, when you look at these articles, to look at it as if you had an ad in mind. You must ask yourself whether that ad can pass three hurdles. Can you satisfy yourself that no one would be able to construe that ad on reasonable grounds to be appealing to anyone under the age of 19? If you get over that hurdle, can you satisfy yourself that that ad will not evoke an emotion, positive or negative, or an image about a style of life such as one that includes several examples?

The third obstacle is clause 20. Will you be accused of using an ad which is likely to create an erroneous impression in anyone who sees it?

When you get over all three of those obstacles -- and I submit you cannot -- you cannot safely say to yourself, "I won't be punished for using this ad," but let us say you can. You then have to look at clause 22(2) and realize there are only three places you can put that ad. It cannot go in any stores, billboards or flyers. It cannot go anywhere except in a publication with a particular kind of readership, in the mail addressed to people by name, or on signs in places from which young people are prohibited by law.

After you get over your three obstacles -- and I submit you cannot -- you have to ask yourself, "Is it worth it for me to use the ad?" You do not get there either. You must come to the conclusion that this is tantamount to a full-blown prohibition, therefore the Supreme Court has already decided that it is an unsavable violation of the Charter.

ED-70, p. 47

Information

M. Potter: As a matter of constitutional and Charter law, senator, it is clear also that lawyers who may complain about an attack on freedom of expression cannot complain about the government putting out more information rather than making less information available to people.

ED-70, p. 53

Several witness with opposing interests appeared before the Senate Committee

On April 2, 1997, the Senate Committee heard several other witnesses with opposing interests, notably Pierre Bourque, the mayor of Montréal, who expressed his fears regarding the economic repercussions of the measures on sponsorship and asked for an extension of the transition period, from two years to three to five years.

ED-71, p. 90 et seq.
Appendix B: List of Witnesses Heard by the Various Parliamentary Committees

On that same date, Mr. John Luik appeared before the Senate Committee (ED-71, pp. 99-100) and stated that:

... In some sense, the submission is a joint one, although Professor Waterson is unable to be here today.

Which was denied by Mr. Waterson (cross-examination of Mr. Waterson, questions 54 to 74).

On June 4, 1988, Mr. Luick appeared before the Standing Senate Committee on Social Affairs, Science and Technology. He presented himself as follows:

Mr. Luik: Mr. Chairman and members of the committee, my name is John Luik and I am a professor of philosophy at Brock University. With me today are Mr. John Foss, President and Chief Executive Officer for the Association of Canadian Advertisers Inc., and Mr. Claude Thomson, a partner in the legal firm of Campbell, Godfrey and Lewtas and a past President of the Canadian Bar Association.

We are here today to represent Coalition 51, a diverse group of Canadians drawn together by a serious concern about certain aspects of Bill C-51.

...

Mr. Luik: I would also like to respond. I have absolutely no vested interest in this. I am an academic. I do not receive - nor does my university - any money from the tobacco industry. Like Mr. Thomson, I approach this entirely as a civil liberties issue, not as a professional lobbyist. The activities or the interests of the tobacco industry are not privy to me. However, as our brief has attempted to point out, we feel that, in a democratic society, the rights under the law protect even those groups that tend to be most socially out of favour, whether it be Mr. Keegstra, the tobacco industry or anybody else. That is the unfortunate thing about rights - they are there precisely to protect people who may need them the most.

Volume 126 of the volumes submitted to the Court of Appeal and
the Supreme Court in the first case on TPCA, pp. 25846 and 25854

According to ED-27, John Luik has close and secret ties with the tobacco industry (pp. 35-36, more particularly note 34 appearing on page 55).

Regarding the amendments to Bill C-71

On April 9, 1997, the Minister of Health appeared again before the Senate Committee and made the following statements:

The Honourable David Dingwall, M.P., P.C., Minister of Health: Honourable senators, I followed your hearings with considerable interest. I would like to address some of the matters which have been raised and answer any questions you may have.

In the past weeks, this committee has heard from individuals and organizations who have expressed diverse points of view on issues related to Bill C-71 whereby we will legislate in four key areas: access, labelling, product regulation and tobacco promotion.

Sixteen months ago, my predecessor released the tobacco control Blueprint, a consultation document that set out the legislative directions proposed by the federal government. At this point, we have received about 3,000 submissions regarding tobacco legislation. There were numerous organizations that carefully examined the document and submitted analytical briefs.

Based on these briefs, we held consultations with the tobacco growers, manufacturers, distributors and retailers; arts organizations, including representatives of major festivals; sports associations and major national health groups. We also consulted with provincial and territorial governments.

For the edification of the committee, I wish to table a list of those who submitted comprehensive briefs, which I am sure the clerk will want to have.

Where it was possible for us to accommodate the concerns of interested parties without compromising our health objectives or departing from the guidance of the Supreme Court, we have done so.

When retailers told us that the blueprint proposal to restrict the display of cigarettes at retail to one package per brand would not work in practice, we modified that approach.

At the time the legislation was tabled, the tobacco industry expressed the concern that Bill C-71 would prevent them from distributing their products across provincial boundaries. To further clarify that distribution between manufacturers and retailers would not be affected, we amended the clause on interprovincial delivery during standing committee consideration in the other place.

Growers feared that the bill would unduly interfere in the internal workings of their industry. At report stage, we amended the definition and application clauses of the bill to assure them that it focuses on matters which touch the public rather than the internal workings of industry.

To respond to the concerns of the producers of tobacco-related accessories like matches, we amended the relevant clause to confirm that it was never the government's intention to control the distribution of accessories bearing logos other than those of tobacco companies.

Finally, as we are all aware, some of the proposed restrictions on tobacco sponsorship promotion will not go into effect until October of 1998. This implementation period responds to the concerns of tobacco-sponsored arts and sports groups.

You have all seen the amendments submitted by the Canadian Tobacco Manufacturers Council. They have proposed amendments which would essentially transform the bill before you to a bill much like the Tobacco Products Control Act which they fought to have defeated by the Supreme Court.

I am sure all members of the committee have this. This is a summary of the list of all the amendments the tobacco industry has asked me, as the Minister responsible, to implement, which, in essence, would take us back to where we were previously.

You have heard from critics who disagree with Bill C-71. They suggest that the bill is unreasonable. One witness even referred to it as fatally flawed and unconstitutional; a reimposition of the provisions struck down by the Supreme Court of Canada. He also suggested that it is difficult to imagine a tobacco promotion which would not send the advertiser to prison.

When I appeared before you previously, I talked about what this legislation will and will not allow. I explained that it has been carefully tailored to respect the guidance of the Supreme Court of Canada. The bill provides for a series of comprehensive restrictions on tobacco promotion; not a total prohibition. Tobacco companies will be allowed to communicate information to their adult customers. However, the use of lifestyle and youth-oriented approaches will be restricted.

ED-74, pp. 6-7

Example of the Player's Première Cigarette

On that same day, the Minister of Health, Mr. Dingwall, also stated:

Despite claims to the contrary, it is possible for me to show you some examples of the kinds of promotions that would likely be permitted under the new legislation. For instance, this ad for Player's Première is along the lines of what you would expect to see after the act comes into force, with the warning on the bottom 10 per cent. Is that unreasonable to ask of the tobacco companies as we proceed with our legislation?

Once the sponsorship restrictions take effect in October 1998, one might see ads like this one for sponsorship by Export "A" of extreme skiing. We have simply moved the brand name to the bottom 10 per cent of the ad as an illustration. This would be acceptable.

I will now show you what would not be acceptable. The difference, I suggest, is not an unreasonable difference.

Perhaps this could be circulated to members of the committee.

Senator Jessiman: I can see no difference.

The Chair: For clarity, senators, the one with the brown backing is acceptable and the one with the white backing is not.

Senator Nolin: Minister, is what you have showed us the poster that they will be allowed to post?

Mr. Dingwall: Yes. Or, in terms of reasonableness, you might see one of Canada's greatest, Jacques Villeneuve, appearing in a suit bearing the corporate colours of his tobacco sponsor, but not the company's logo, as he does when he competes in some European countries.

ED-74, pp. 7-8

ITL's philosophy

On that issue, Mr. Dingwall pointed out:

Justice McLachlin, writing the decision of the Supreme Court of Canada on the Tobacco Products Control Act stated:

... even a small reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of right of free expression.

We are placing, in my view, reasonable limits on tobacco promotion to protect the health of Canadians, particularly young Canadians. Tobacco marketing strategies create and maintain the perception that tobacco use is desirable, socially acceptable, healthy and more pervasive in society than it really is.

The industry itself acknowledges that. For example, an Imperial Tobacco document entitled "Overview 1988" was submitted in evidence to the Supreme Court of Canada in 1995. It states that the marketing objectives and philosophy should be to:

... support the continued social acceptability of smoking through industry and/or corporate action, (e.g. product quality, positive lifestyle advertising, selective field activities and marketing public relations programs).

ED-74, p. 8

The link between advertising and young people

Mr. Dingwall also explained that:

While this is interesting, the real issue is not whether tobacco companies knowingly target young people, it is whether their promotional strategies reach and influence youth. We know that they do. Young people are exposed to ongoing and pervasive strategies that blanket the environment with tobacco promotions. The industry contests such facts with claims that "No one ever took up smoking after attending a tobacco-sponsored event."

We have never suggested that the relationship between tobacco promotion and youth smoking is that simplistic. Attending a tobacco-sponsored event is just one instance of exposure to tobacco promotion.

Whether they are marketing soft drinks or cigarettes, marketing professionals know that there is no one ad or promotion that will translate into instant sales. They know that the cumulative impact of their promotional strategy is what ultimately affects consumers, not a single ad or a single poster.

In the case of tobacco promotion, each of the dozens of brands on the market in Canada attempts to sell its own uniquely appealing brand image.

With regard to marketing experts, I wish to quote from a study by Professor Richard Pollay:

Content analysis of advertising shows that cigarette advertising imagery largely consists of pictures of health and images of independence, which are known to the industry to resonate with adolescent needs for autonomy and freedom from authority.

Children and teenagers process many conflicting messages, and tobacco promotions are only one of them. Often, they acknowledge the health hazards of smoking, but tend to discount longer-term health effects and to emphasize more immediate needs like staying slim or being part of the crowd. Tobacco promotions, whether they show the package or promote a tobacco-sponsored event, reinforce and respond to these needs.

The National Cancer Institute of Canada puts it this way:

In sum, both qualitative and quantitative studies examining the effects of advertising on adolescents suggest that the content of advertisements influence attitudes, beliefs and values related to tobacco. They do so by portraying benefits of smoking that resonate with the issues and concerns of adolescents; namely, peer bonding, social approval, independence/autonomy, self-image, body image, adventure-seeking and normative behaviour.

Other countries such as France and Australia have also acknowledged the existence of a link between tobacco advertising and smoking. President Clinton has firmly set the United States on a course quite similar to Canada's, with restrictions on tobacco advertising and promotions because of their effect on young people.

In this country, the Supreme Court of Canada has already recognized a link between tobacco advertising and consumption and clearly confirmed that the federal government has the right to restrict tobacco advertising. This legislation is important. That is beyond dispute. However, as I have said before, both here and outside, it is not the panacea.

Clearly, there are many reasons why people start smoking -- invariably as kids -- or keep smoking as adults. Individual decisions on each of these issues are based on factors that include self-esteem, how much it costs to smoke, and to what extent smokers are concerned about the health consequences of their habit. Other factors include the behaviours of friends and family and environmental influences, such as the messages conveyed by tobacco promotion.

...

Furthermore, when the president of the Canadian Medical Association appeared before you, she confirmed that "children are more vulnerable to addiction."

The World Health Organization and national governments around the world recognize that the best way of arresting this global public health epidemic is by adopting a comprehensive approach to tobacco control. Canada has such an approach. The federal government has many partners in this effort -- all of the provincial and territorial governments, as well as the national non-governmental organizations.

ED-74, pp. 9-10

Senators' comments

Senator Doyle

Senator Doyle: Minister, I might say that I find the bill too tentative and too anxious to avoid prohibitions. I would have been far more forthright. However, I did look at the advertisements which you circulated. I was struck by one which offered a cross-hatch of a cigarette and told me what was right with that cigarette. On the reverse side of it, it said that this, with slight modifications, might be permitted. It tells me that this cigarette has full flavour and less irritation. It has dispersion qualities. I have never heard of a dispersion quality. It provides, again, reduced irritation. Reduced from what? Less irritation than what? It is based on research with smokers. Which smokers? Me, for instance?

I do not find that this pseudo-scientific presentation is something at which we should laugh. I think the teenager who tries to persuade his mother that he has found a nice safe cigarette with dispersion qualities might find a good argument on the second trip round and might even find it more persuasive than looking at hockey stars. Do you not think that that type of this-is-good-for-you ad should be totally run out of the business?

Mr. Dingwall: Now you are starting to hit home, Senator. Yes, the substance, in our view, is a very lethal one. There is certainly good evidence, which has been adduced here at your committee on several other occasions, in terms of the effects.

Unfortunately, Senator, I must deal with the decision of the Supreme Court of Canada. That Court has told me, our government and Parliament, that, within reason, you have to allow the manufacturers of the product the opportunity to present their product to the Canadian people.

If we knew years ago what we know today about tobacco consumption, I am certain that it would not be a legal product. However, we must live, as you know, sir, in the real world, in which a large number of our citizens are addicted to tobacco consumption. We did not believe the answer would be a Draconian law which would breach the Supreme Court of Canada.

I fully appreciate the intent of your remarks in terms of just how bad some of this stuff is. It is equally bad for young people when stars in various vocations are supporting the habit of tobacco consumption. That ad is just further inducement to that statement.

Senator Doyle: I still find it very difficult to believe that the Supreme Court of Canada would stand behind dispersion qualities as a reason for smoking.

ED-74, pp. 26-27

After its deliberations on April 9, 1997, the Committee reported to the Senate on April 15, 1997.

ED-74
ED-75-76

Senator Lewis

Let me first address the concerns with this bill expressed by spokespersons and counsel for the tobacco manufacturers. They told us that they have no quarrel with responsible and legally acceptable restrictions on the manufacture, promotion and sale of tobacco products, as long as they are workable.

They then expressed objections to Bill C-71. They said that It contains provisions clearly in violation of the Canadian Charter of Rights and Freedoms and that it imposes the same total ban on advertising which the Supreme Court found to be unconstitutional. They also claim that the wording of the bill is vague and does not provide certainty, that the legislation's proposed regulatory power and penalties are excessive.

Let us consider, first, the issue of constitutionality. In developing this bill, the government fully recognized the freedom of speech issues that control of tobacco promotion raises. The Health Minister has told us that the drafters followed carefully the guidance provided by the Supreme Court of Canada in its 1995 ruling on the Tobacco Products Control Act to ensure that Bill C-71 respects the Charter of Rights and Freedoms. Constitutional experts who appeared before the committee clearly recognized that fact. For instance, Professor Lessard of the Faculty of Law at the University of Victoria said:

The drafters of Bill C-71 clearly took their directions from the Court's decision and basically redesigned the act so that now we have partial bans and partial restrictions. So you have a direct response to what the Supreme Court of Canada said in RJR-MacDonald.

In that decision, the Supreme Court recognized a link between tobacco advertising and consumption and clearly confirmed that the federal government can control tobacco advertising under the criminal law power. The Court held that Parliament can validly employ the criminal law to prohibit tobacco manufacturers from inducing Canadians to consume these products, and to increase public awareness concerning the hazards of their use.

The Court further held that even a small reduction in tobacco use may work a significant benefit to the health of Canadians and justify a properly proportioned limitation of freedom of expression.

I share the view of the Minister of Health and that of several constitutional experts who appeared before the committee that this bill respects the Canadian Charter of Rights and Freedoms.

The tobacco industry argued repeatedly that the bill amounts to a de facto ban on advertising and event sponsorships. This is simply inaccurate. The argument does not stand up to scrutiny because the proposed legislation does not ban tobacco promotion. On the contrary, it allows product advertising; it allows the display of tobacco products at retail outlets; it allows tobacco companies to communicate information about their products to adult consumers; it allows the tobacco companies, with some restrictions, to continue to associate the brand names of tobacco products with sponsored events; and it allows the broadcasting of those events.

With respect to the manufacturers' third charge, independent legal expert witnesses who appeared before us confirmed the views of the government's own constitutional experts. The proposed legislation may be technically complex, but it is not vague. The bill is clear in setting out what will and will not be permitted. Details specifying the time, place and manner in which these permissions and restrictions will apply will be spelled out in regulations.

The Minister of Health is also on record as being willing to work with the industry to set up some kind of pre-clearance mechanism that would provide greater certainty with respect to potential contraventions.

On the issue of regulations, concern has been expressed that this legislation would confer excessive regulatory authority on the government. The regulatory powers in Bill C-71 are neither unusual nor unique. They are consistent with the powers in other statutes pertaining to, for example, food, drugs, hazardous products, transportation and the environment.

Furthermore, the government will consult with all affected parties in a meaningful and transparent fashion as it develops regulations pursuant to this bill. There will be ample opportunity for stakeholders to comment, both before and after the proposed regulations have been published in the Canada Gazette. The transparency of the regulatory process would be further enhanced by the requirement in Bill C-71 that proposed regulations be referred to an appropriate committee for study and consideration.

Much has been made of the issue of excessive penalties and of the search and seizure provisions of the bill. I want to be clear on these points, honourable senators. The search and seizure provisions here do not violate the Charter. They are common to other federal and provincial regulatory schemes which have been upheld by the courts. The Supreme Court has clearly defined the appropriate threshold for the expectation of privacy and warrantless inspections of commercial regulates, and the bill respects that threshold.

Seizure without warrant is only contemplated where a product or promotion contravenes the law, but prosecution will not occur in relation to such a seizure. Where the purpose of any seizure is to gather evidence for a prosecution, inspectors will be required to obtain a warrant under the Criminal Code. Here as elsewhere, the government will work with affected parties to ensure that they are aware of their obligations.

...

On the issue of nicotine addiction, industry spokesmen told us that whether smoking is addictive or not is a matter of opinion, not of fact. They also said that there are definitions under which smoking is clearly addictive. They went on to say that coffee is addictive, chocolate is addictive and potato chips are addictive. The analogies do not do justice to the gravity of the issue before us.

...

Finally, industry spokespersons repeatedly told committee members that no one ever took up smoking after attending a tobacco sponsored event. That is misleading. Health experts have never suggested that the relationship between tobacco promotion and youth smoking is that simplistic. Attending a tobacco-sponsored event is just one instance of exposure to tobacco promotion. It is the cumulative impact of tobacco advertising and promotion that influences consumers.

Health Canada has released the tobacco research reference list of more than 150 studies and reviews, as well as industry marketing reports, that guided the legislation and that documents a link between tobacco promotions and consumer attitudes, beliefs and behaviours, including the beliefs and behaviours of young people.

Tobacco marketing strategies create and maintain the perception that tobacco use is desirable, socially acceptable, healthy and more pervasive in society than it really is.

Research also tells us that 85 per cent of smokers began smoking before they were 16 years of age. I will quote briefly from four of these 150 studies on the issue of whether tobacco advertising and promotion reaches and influences young people.

An 1988 Imperial Tobacco Limited report on overall market conditions notes:

The industry is dominated by the companies who respond most effectively to the needs of younger smokers. Our efforts on these brands will remain on maintaining the relevance to younger persons.

A 1990 study in the British Journal of Addiction found that children are highly sensitive to cigarette brand advertising which promotes cigarettes advertising among the young. In 1994, the report of the Surgeon General of the United States similarly noted that tobacco promotion provides a conduit between a young person's actual self-image and their ideal self-image.

On the issue of sponsorship promotions, a 1996 report by an industry leader noted that sponsorship generally outperforms advertising. Sponsorship can suggest that the brand is sanctioned and approved. It provides a positive, emotional connection between people and product that cannot be achieved through traditional advertising.

A few weeks ago, a major United States cigarette company, the Liggett Group, admitted that tobacco was addictive and that it caused significant health problems. Liggett further admitted that the United State's tobacco industry has for some time specifically targeted teenagers through is advertising and promotions.

Whether Canadian tobacco manufacturers intentionally target young people is not the point. However, their arguments that they do not influence youth are wearing thin. Tobacco advertising and sponsorship promotion has become so pervasive that it cannot help but spill over into segments that are not the primary targets of tobacco marketers. That spillover affects children and youth.

Honourable senators, I am convinced that this bill respects the Charter, and that it is flexible enough to respond to changing marketplace conditions. I also believe that it is reasonable, balanced and warranted. The bill's objective is to protect the health of Canadians, particularly young Canadians, from inducements to smoke. It will achieve its objective by placing reasonable limits on tobacco marketing and promotion, while at the same time allowing companies scope to communicate factual information to adult consumers, as well as to associate the brands names of tobacco products with sponsored events.

Let there be no misunderstanding: It is primarily young people whom we are concerned about, and it is young people who will ultimately benefit from this bill. We are not restricting tobacco sales to adults, and we allow advertising that is clearly targeted to adults. We are, however, saying that tobacco products are inherently hazardous and addictive, and that young people are most vulnerable to taking up smoking and developing a lifelong addiction to tobacco.

Honourable senators, Bill C-71 is an important element of the government's tobacco control strategy, but it is only one element. It will be complemented by health education and awareness programs which will be developed increasingly by young people, for young people. Last year, the Health Minister created a youth advisory committee to advise him on smoking and other issues. This reflects the youth-oriented nature of the current tobacco programs. The Minister is consulting and involving Canadian youth, and will continue to do so. They are best positioned to develop effective resources to resist peer and social pressures to smoke and to help counter the appealing images that tobacco promotions create.

I want to preface my concluding remarks by noting that this is the second time Parliament has debated tobacco control measures. In 1989, Parliament passed the Tobacco Products Control Act. While that act banned tobacco product advertising, it was by no means the end of tobacco promotion in Canada. The tobacco industry likes to say that the 1989 ban has not reduced smoking. What the industry neglects to add is that they continue to market tobacco products aggressively through sponsorship promotion. Since 1989, the industry has invested hundreds of millions of dollars in this effective marketing tool.

In some respects, our deliberations and debates over the past weeks have an element of déjà vu. Some things have not changed appreciably over the last eight years. Tobacco companies continue to vigorously promote the products in a pervasive and strategic manner. They continue to predict dire economic consequences if their activities are constrained in any way. Sadly, Canadians continue to take up smoking as children and teens, and continue to die as adults at the rate of 40,000 each year from tobacco-related diseases.

One important thing has changed, honourable senators: We know more than we did in 1989 about the health consequences of smoking. Medical science continues to advance our understanding of those debilitating and deadly consequences. We also know more about the link between promotion and the decision to smoke.

Some honourable senators have suggested that none of the experts who appeared before the committee were able to produce one single study pointing to one single factor that causes someone to start smoking. As the Health Minister and other witnesses emphasized, the smoking decision process is not just about starting to smoke; it is also about continuing to smoke, how much to smoke, and whether or when to quit. We also know that whether or not to smoke is rarely a decision taken by adults. Kids decide to smoke based on the cumulative impact of a number of factors that influence them.

In 1996, the National Cancer Institute of Canada found after extensive review that the weight and consistency of the evidence strongly supports the conclusion that marketing plays a significant role in youth tobacco use. The report reached the following conclusions: one, tobacco advertisements appeal to youth: two, youth are aware of tobacco marketing; three, awareness and perceptions of marketing are linked to smoking intentions and behaviour; four, tobacco marketing campaigns increase youth tobacco use; and five, youth are particularly likely to smoke highly advertised brands.

Honourable senators, while the proposed legislation before us may not be perfect, as both its supporters and critics have charged, it is based on an extensive and growing body of international research that supports findings such as those I have cited.

My final point of comparison is that in terms of public health priorities, very little has changed since this body last debated tobacco control measures. Smoking remains this country's most pressing public health issue. Tobacco is the most costly and relentless killer in this nation. It kills more people than drugs, car accidents, suicides, homicides and AIDS combined. It is responsible for one in every five deaths, and costs $3.5 billion per year in direct health care costs.

This bill will achieve the government's health objectives, but this will not happen overnight. The industry wants us to measure its effectiveness in terms of days and weeks and months. This is too simplistic.

ED-76, pp. 40 to 45

Senator Wilbert J. Keon

I should also like to remind senators that Bill C-71 is a compromise. Regulating, not banning, tobacco is the issue here. The bill restricts the access young people have to tobacco products, places reasonable limits on the marketing and promotion of these products, increases health information on tobacco packaging, and establishes powers needed to regulate tobacco products. From my perspective, this represents, quite simply, good health policy.

The bill does not include a total band on tobacco sponsorship advertising, as has been the practice in a number of other countries, including Australia, Italy and France. It is also important to note the World Health Organization has, on a number of occasions, urged a total ban on all direct and indirect advertising and promotion of tobacco products. The United States itself has adopted a law that will ban all tobacco sponsorship advertising effective August 1998.

In many respects, the bill is weaker than the tobacco control Blueprint released by the government on December 11, 1995. For example, the Blueprint called for a total ban on advertising, a total ban on the use of trademarks on non-tobacco goods and a limit on point of sale package displays to one package per brand. None of these provisions are found in Bill C-71 as they were initially proposed by the government.

I will not take the time here today to recite the long list of statistics that you have all heard many times before related the incidence and prevalence of premature death resulting from tobacco use. Indeed, I am aware of some 700 scientific publications on this subject, all leading to the same conclusion.

Suffice it to say that tobacco use is the cause of about 30 per cent of cancer deaths and more that 80 per cent of lung cancer. Of the 45,000 smoking-related deaths per year, almost 40 per cent are from cardiovascular disease. In my own medical career, I have seen, on a daily basis, the tragic damage done to patient's hearts, resulting in premature death and disability.

ED-78 p. 25

Senator Raymond J. Perrault

Honourable senator, I will support the bill, but I believe it needs amendment. At meetings with the Minister in the past two days, he has told us that he is working on alternative ideas which will make up for some of the revenue lost by deserving organizations. That is a move in the right direction.

...

I believe the bill needs amendments, and I have said that. However, given the parliamentary schedule, it is obvious that the bill cannot be sent back to the other place with any reasonable hope it can be amended by Parliament.

Honourable senators, for these reasons, it is with some reluctance that I support the bill. I should like to see it in a more perfected form. I know we can do better. I also know that money is required to finance many good causes in our community.

Following vigorous representations from all parts of the country, the Minister has stated - and I repeat it for the Leader of the Opposition - that other options will be pursued to make it possible for significant sports and cultural events to be sponsored by private and/or public sectors. I support this bill only with this assurance. I believe that, apart from commendable efforts to reduce tobacco and alcohol consumption, the arts in Canada and certain other events must be supported adequately. It is highly desirable that world-class events such as the Indy, worth millions of dollars to the western economy, should go ahead. The number of drama companies and symphonies across the country that are recipients of revenues from the private sector need and must have support, honourable senators.

ED-78, pp. 27-28

Senator Mira Spivak

On sponsorship advertising, the tobacco manufacturers representative told the committee that manufacturers regard such advertising "as quite a different category from product advertising." Again, let me cite an Imperial Tobacco Limited internal document, "A National Media Plan." Under "Sponsorship" - "Media," the objective is clear:

To "Brand" the events we sponsor via media advertising so as to increase the level of awareness, particularly amongst smokers, and potential smokers, of our (trademarks') association with major world class sporting events and artistic productions.

One of these benign, benevolent ads was for live performances in Calgary of the children's Broadway musical Annie.

The committee also heard repeatedly, that advertising, whatever its form, has one purpose - to convince smokers to switch brands at the expense of a competitor.

I have bibliographies of material presented to the Commission committee and Health Canada's research reference list. Here we find articles from such "disreputable" - quotation marks provided courtesy of the tobacco manufacturers - journals as The Journal of the American Medical Association: RJR Nabisco's Cartoon Camel Promotes Camel Cigarettes to Children; The Journal of the National Cancer Institute: Influence of Tobacco Marketing and Exposure to Smokers on Adolescent Susceptibility to Smoking: The American Journal of Public Health: Tobacco Promotion and Susceptibility to Tobacco Use among Adolescents Aged 12 through 17 years.

There are many more. The National Cancer Institute of Canada states:

The cumulative evidence...strongly supports the conclusion that marketing plays a significant role in youth smoking behaviour, both in terms of initial experimentation and brand preference.

The U.S. Surgeon General, in 1994 stated:

Even though the tobacco industry asserts that the sole purpose of advertising and promotional activities is to maintain and potentially increase market shares of adult consumers, it appears that some young people are recruited to smoking by brand advertising.

Last year the U.S. Food and Drug Administration, in publishing regulations to ban logos and brands completely from sponsored events, stated:

The effect of sponsored events on the young people who attend or see those events is enormous...The agency finds that the evidence regarding the effect of advertising and sponsorship on children's smoking behaviour is persuasive and more than sufficient to justify this regulation.

The World Health Organization, last year, stated:

WHO and its co-sponsors, World No-Tobacco Day, the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Olympic Committee (IOC) join forces in calling for all nations to end sponsorships which in any way associate tobacco products with sporting and cultural activities.

Frankly, there is evidence that young people come to the same conclusions as these institutions, that is, that sponsorship equals smoking, intuitively. When University of Toronto researchers showed Ontario students posters of the jazz festival and Grand Prix racing, having obscured the words on the posters, there was no doubt in student's minds what those posters were about. Some 53 per cent said the racing poster was about cigarettes; only 4 per cent saw it as a poster for Player's racing. Some 20 per cent saw the jazz festival poster as an ad for cigarettes; only 2 per cent recognized it as an ad for the festival.

What did the students say about these ads? They said they "do not think about cancer, driving is more exciting." "Children idolize car racers and kids want to be like car racers and smoke." They also said, "If you are into music, your are into smoking." That is why the back-door route to advertising cigarettes to young people through sponsorship posters and billboards, through television broadcasts that focus repeatedly on product logos on time clocks and banners or through T-shirts and other clever paraphernalia must be restricted.

Cigarette manufacturers claim sponsorship is just to increase market share but the true story about the market comes from the manufacturer's reported sales. In the year following the Supreme Court decision, ads were permitted, taxes were constant and sales in Canada increased by 1.4 billion cigarettes. That is equivalent to the number of cigarettes inhaled by 150,000 new pack-a-day smokers.

ED-78, pp. 42-43

On April 16, 1997, the Senate adopted Bill C-71 without amendments.

ED-79, p. 15

Bill C-42: amendment to section 24 regarding sponsorship advertising

First reading in House of Commons

On June 3, 1998, the Minister of Health, the Honourable Allan Rock, tabled Bill C-42 "An Act to Amend the Tobacco Act" for first reading.

ED-82
ED-86, p. 3

Second reading in House of Commons

On September 30, 1998, Mr. Lynn Myers participated in the debate on Bill C-42 during the second reading and stated the following:

Mr. Lynn Myers (Waterloo--Wellington, Lib.): Mr. Speaker, I am pleased to begin in this House the second reading debate on Bill C-42.

Bill C-42 is a short bill. It is a simple bill. It proposes an amendment to the TobaccoAct and focuses on one aspect of the tobacco issue, and one issue alone, and that is the promotion of tobacco products through the sponsorship of events.

What the bill does is straightforward. It will toughen the existing Tobacco Act. It will take a piece of legislation that is already one of the strongest in the world and make it even stronger.

The bill would ban the promotion of tobacco sponsorships following a five-year transition period. Although the bill is short, it is not an isolated action. It builds on the enormous step forward which our government took in proposing the Tobacco Act and which the last Parliament took in passing the legislation.

That act, members will recall, takes aim squarely at the number one cause of preventable death and disease in Canadian society. Its goal is to protect and promote the health of all Canadians. It is aimed specifically at keeping children and young people from starting to smoke.

The health facts are clear. Last year more than 40,000 Canadians died of tobacco related illnesses. That means that each day, on average, more than 100 Canadians died with tobacco standing in the background. Many of those people died of heart disease. Others died of lung disease. Still others fell victim to cancer or some of the many other illnesses that have their roots in the use of tobacco products.

There are some worrisome trends that could add to that toll over time. The percentage of young people between the ages of 15 and 19 who smoke has actually risen in recent years. We need to take continued and effective action to reverse those trends.

However, we must approach this in a way that recognizes that tobacco is a unique product, yet we simply cannot ban it. Tobacco is addictive and over time it is often deadly. It has made its way throughout our culture and indeed cultures throughout the world.

The reality is that to combat something that pervasive, simplistic solutions simply do not work. For that reason the federal government's approach to tobacco control has included a variety of elements. Legislation, educational programs and taxation have all been part of this mix.

Increasingly we have taken steps to affect other aspects of the process that lead young people to smoke. An important focus of the Tobacco Act was to cut the exposure of young Canadians to tobacco promotion. Tobacco advertising had been prohibited for some time and the Tobacco Act continues restrictions in a manner that we believe reflects the Charter of Rights and Freedoms.

However, as traditional advertising avenues were closed off to the tobacco industry they seized on the use of event sponsorships and promotions.

[translation] According to research, the people who market tobacco products are no different from those marketing any other product. They all seek to understand consumer behaviour, especially the behaviour of consumers who are likely to start using their product. We know they are studying the various factors involved in making the decision to smoke.

So who are they studying? Something like 90% of all smokers start before they are 20 years old, usually well before. In fact we can even say as young as 12. So they must logically be an important target.

Like all marketers, these tobacco people want potential customers to associate their brands with positive images. More than that they want to get their product names in front of as many people as possible. They want tobacco products to be linked to events and activities that people enjoy.

With less and less recourse to traditional advertising, association with sports, cultural and other community events has become very important. Events take on cigarette names. Posters and billboards advertising them are everywhere. Therefore people, especially young people, become familiar with the brands, the logos and the overall presence of tobacco in our society.

We might say in this regard that familiarity breeds contempt, not by itself and not in a simple, direct and crystal clear line, yet there it is. There are many factors that influence a 15-year-old's decision to smoke. There are many steps between a first puff and a consistent pack a day addiction. But the research indicates that event promotion is a very significant factor in the overall smoking decision process of our young people. Tobacco brand names can seem to become innocuous, present everywhere, as if they were a normal consumer product.

In making these points about the health impacts of smoking or the importance of event marketing to the tobacco industry, I am simply restating some important points that were made during the debate on the Tobacco Act in the last Parliament. Perhaps more important, I am simply restating points that were made on both sides of the House and in the other place in that debate.

This House has historically demonstrated its awareness that smoking kills. Historically it has demonstrated that its support for measures to cut tobacco use by young people are correct and necessary.

The same was true with the Tobacco Act. Mr. Speaker, I am sure you recall the outcome of that debate. Reformers, New Democrats and Progressive Conservatives stood with us on it. They stood with the 91% of Canadians who support efforts by government to discourage young people from becoming addicted to tobacco. They stood with the 73% of Canadians who support efforts to discourage smoking among people who already smoke.

It was only the Bloc that opposed the Tobacco Act, and that was largely because of concerns about the impact of sponsorship restrictions on events. Now that the Parti Quebecois government has moved in the same direction as we moved a year ago, I am confident that opposition will change there as well.

Of course, some people outside this Parliament expressed concerns about sponsorship restrictions. Event organizers were concerned that they would not be able to line up new sponsors quickly enough. Some people in communities that look to these events for tourism dollars were concerned about the possible loss of those marquee events.

A particular area that drew some attention was the impact of the Tobacco Act on motor sports. If you have ever watched a race you will have noticed that every possible space is adorned with advertising: the cars, the racing suits, the facilities. They are all full of logos of sponsors. Those logos are often of tobacco brands that Canadians, Americans, Europeans and Asians use. Because of the concerns of event organizers it was agreed that the federal government would take another look at tobacco sponsorship and motor sports. But I must add that this should never have been seen as a carte blanche to water down our commitment to reduce tobacco use.

At that time we said that we would respect the Charter of Rights and Freedoms, that we would respect international standards and that we would respect the health obligations and objectives of the Tobacco Act. As we consulted we heard from event organizers and we heard from health groups that were concerned with the potential influence of sponsorship on young people.

Through the process we remained determined to make this act even more solid than it was already. In the end we decided that we could not and would not create one set of rules for some motor sports events and another for everyone else. We recognized that we did and had to treat all currently sponsored events equally.

We also determined that we were being presented with an opportunity to really fine-tune the sponsorship provisions of the Tobacco Act, and the result is Bill C-42.

I will now turn to the regime the bill sets out.

At the core of this bill is a five-year transition period. During that time we will move to a total ban on the display of tobacco brand elements in sponsorship promotions.

There are two types of events for the purpose of this bill. The first type includes events that were in existence and had tobacco company sponsors before April 25, 1997. If Parliament agrees, these events would begin with a two-year period under the status quo. Tobacco promotion would be able to continue for that two years and we would continue to allow off-site and on-site promotions.

The next phase for those grandfathered events would last three years. On-site promotions involving tobacco product related brand elements would continue at those events, but these promotions could only be in place for the duration of the event. We would close off opportunities for off-site promotion and we would impose a 90:10 rule that appears in the Tobacco Act on those that are permitted. That is to say, only the bottom 10% of the space in the promotional material can display tobacco brand elements.

Direct mailings to identified adults would be permitted, but banners with large tobacco logos on lampposts all over town would not be. Advertizing in publications with primarily adult readership would be permitted, but placement in corner stores of posters with cigarette names in bold, big type would end. Promotions such as tent cards in bars, which are legally off limits to young people, would be acceptable, but the same tent cards in regular restaurants would not be.

In short we would cut the tobacco marketers' off-site access to young people dramatically. That stage would end after three years, as I said. That brings us to five years from the date this amendment to the Tobacco Act would come into force. On that date, tobacco sponsorship promotions would end.

The second group of events are those in which sponsorships began on or after April 25, 1997. Those events will not be grandfathered. The restrictions currently in the Tobacco Act would apply to these events and after five years, the days of complacent sponsorship promotions will end.

...

That ban is more than even the Tobacco Act originally envisaged. That Act would have simply brought in the 90-10 rule as a new status quo.

[translation] We have gone one step further in protecting the health of Canadians by cutting any ties between appealing and wholesome activities and tobacco consumption.

Some may ask why we have decided on a period of five years. The five-year transition period provides event organizers with plenty of time and plenty of opportunities to seek alternative sponsors. In our consultations with those organizers, it was clear that if we were determined to eliminate the use of sponsorship as a promotional vehicle for tobacco products, and we are, then they wanted time to make alternative arrangements and they could. In fact I know that process has already begun.

next year. we believe that the five-year time frame will allow other event organizers to demonstrate to other potential sponsors how valuable an association with their event can be.

If this was all we were doing on tobacco control, it would be noteworthy enough. Yet we are actually doing far more and that is why Canada is recognized as a world leader in tobacco control. Indeed we keep track of the steps that other governments are taking on this issue. I want to tell my hon. colleagues on both sides of this chamber that our approach is consistent with evolving international standards. Let me offer some examples.

The European Union recently announced that it is moving in the same direction as we are. It intends to ban tobacco sponsored promotions by the year 2006. It intends to pursue a transitional strategy on the way to that ban.

Australia announced last week that it too will totally prohibit tobacco sponsored promotions by the year 2006.

The United States is moving ahead on actions that will limit the exposure of children to tobacco promotion in ways that are consistent with much that is already in our Tobacco Act.

Canada is on a course to beat them all. Our legislation is among the toughest and most far reaching in the world. The initiatives that the Tobacco Act enables us to take include the regulation of the product, its components and emissions, more comprehensive reporting requirements for tobacco companies and stricter regulations on sales of tobacco products to minors.

It is also backed up by our continuing efforts to promote and protect health through anti-tobacco initiatives. For example last June we announced $100 million in spending on the tobacco control initiative. We are proud of that. That money followed through on a commitment that our government made during last year's election. It was a commitment that we were proud to keep because it was really an investment in the health of Canadians.

The tobacco control initiative is co-ordinated and it is comprehensive. It pays particular attention to tobacco use among children and teens, groups vulnerable to taking up smoking.

Reducing the health damage caused by tobacco consumption is increasingly an issue, not only for the federal government but for our colleagues in the provincial governments as well.

A New Democratic government in British Columbia has taken legal steps against tobacco companies because of the costs their products place on the health care system. In Quebec, the Parti Quebecois government has passed strong legislation that among other things restricts tobacco sales to minors and the promotion of tobacco products.

Both provincial strategies complement our own actions at the federal level. They complement our legislative and health promotion approaches. They demonstrate, just as the history of tobacco control legislation does here, that this is not a partisan issue. It is a health issue.

[translation] After all, that is the purpose of this bill, a short and straightforward piece of legislation that establishes a new and stricter framework for tobacco promotion through sponsorship and paves the way for the elimination of sponsorship by the year 2003.

It positions us to be heard and be ahead of the United States, most European states and Australia, all countries that have their own solid records on tobacco control.

The action that this bill proposes, together with the restrictions set out in the TobaccoAct as well as our tobacco control initiative are individual parts of a unified strategy.

We are continuing to work and invest significant resources to reduce smoking in Canada. We are taking action that we hope and believe will help reduce the percentage of young people who take up smoking.

This bill then is ultimately about the health of Canadians. It is about making a strong piece of legislation even stronger, all the while making it more realistic. It is a bill that I believe merits the support of all parties in this House.

ED-87, pp. 52 to 57

Standing Committee on Health

Bill C-42 was debated in the House on October 8, 1998, and was referred to the Standing Committee on Health.

ED-88 and 89

Health Canada representations

On October 29, 1998, Ms. Elinor Caplan appeared before the Standing Committee on Health on behalf of the Minister of Health and stated the following:

As most of you know, the bill's primary focus is a five-year timetable to end the marketing of tobacco products through event sponsorships. We propose to do this through a transitional process. Events that were in place with tobacco sponsorships prior to April 25, 1997, would have two-year period without new sponsorship restrictions, but only during that time.

During the following three years, we want to tighten the limit significantly. The on-site promotion of tobacco sponsorship would be able to continue, but off-site promotions would have to meet the 90/10 rules of the current TobaccoAct. We would place stringent conditions on those off-site promotions to limit the exposure of young people to this marketing.

In five years, there would be no more promotions of tobacco sponsorships. Event names and facilities would no longer serve as a none-too-subtle reminder of tobacco.

This bill came after substantial discussion with all interested parties. We heard from the arts, sports, and other groups who would be affected by these changes. They indicated that they needed appropriate timeframes to line up new sponsors, and our bill recognizes that.

We also heard from the health community. Those organizations have been front and centre in the work to make Canada tobacco-free. In particular, I'd like to mention the work of the Canadian Cancer Society, Physicians for a Smoke-Free Canada and the Non-Smokers' Rights Association in this broader effort. They have been leaders in the action over time to get the anti-smoking message out to Canadians. They have been powerful forces in encouraging Canadians to keep moving ahead on the tobacco issue.

Health organizations looked at what we were doing with this bill. They understand where we want to go and how we want to get there. I believe they support the direction that we're taking in C-42 toward a prohibition of tobacco sponsorship promotions. Still, we know they had concerns.

They understand that the tobacco industry has constantly sought out new ways to market its products as we have closed off the old channels by laws such as this one. For example, tobacco companies by begun to use the Internet to support events marketing in Canada, something that many could not have foreseen just three or four years ago.

With that in mind, the Canadian Cancer Society identified amendments that it wanted to see in this bill. And during second reading debate, I know that some opposition members indicated their support for those amendments.

Today, I am announcing on behalf of the government that we are prepared to amend this bill to address three of those proposals.

First, we will propose that October 1, 1998, be specifically identified as the start date for the transition under this bill. In effect, that means the five-year clock has already begun to tick down on sponsorship promotion - if this amendment and bill pass.

Second, we will propose that the only events that can be grandfathered would be those that were already promoted in Canada. Although it was never our intent to allow otherwise, this change will make it clear that events cannot be moved from the United States or Australia or wherever into Canada and be treated as if they've always been here.

Third, we will propose that only events that have been in Canada during the 15 months prior to April 25, 1997, can be grandfathered. Once again, it was never our intent to allow events to be restructured solely for their value as tobacco-marketing vehicles. This amendment formalizes that intent.

In all three cases, we see these as clarifications. They are now completely consistent with the intent of the bill and we are pleased to include them now.

The Canadian Cancer Society proposed two other amendments. One would ban point-of-sale advertising and the other would set a ceiling on sponsorship spending. After review, we believe that both raise questions about feasibility and enforceability. For these reasons, we will be looking forward to what witnesses have to say about those amendments. We'll be looking to this committee for serious consideration of the real implications of both proposals.

I say this not the least of all because experience has taught us that there are limits to what we can achieve through legislation and direct government action.

The government will also be recommending some amendments to Bill C-42.

You will recall that in April 1997, the government made a commitment to accommodate the major concerns of motor sport organizers in Canada. One of the principles that we maintained during the development of the bill as the fulfilment of that commitment was to treat all arts and sports groups equally. The adjustment would update Bill C-41 with respect to the continuing evolving situation in motor sport. The wording of the bill would be changed to expand the criteria for the grandfathered status participants to include not only their personal sponsorship status, but that of events in which they're taking part. The amendment will ensure that all participants in a particular event are treated equally.

We now have a generation of experience with large-scale tobacco control policies and programs. That experience has shown us that are no simple answers.

ED-90, pp. 2, 3 and 4

Representations from several organizations with opposing interests

Several organizations with opposing interests appeared before the Committee:

a.  Health organizations that found the transition period too long.

ED-90
ED-91

b.  A representative of the three plaintiffs who are opposed to Bill C-42.

Mr. Robert R. Parker (President and Chief Executive Officer, Canadian Tobacco Manufacturers Council): ... Some elements of this bill and of the Tobacco Act which it will amend meet those tests. Others, regrettably, do not. Members of this committee will be aware that the Tobacco Act's predecessor, the TPCA - Tobacco Products Control Act - had significant sections struck down by the Supreme Court of Canada in 1995. The TPCA was successfully challenged by our member companies; the Tobacco Act is the subject of a second challenge now underway.

For the record, in case any of my comments before you lead to misunderstanding, that challenge will continue and will include all of these amendments, whatever their final form. That's primarily because of what we believe to be the extreme unjustified and unconstitutional restrictions placed on the legitimate rights of manufacturers of a legal product to communicate with their adult customers.

ED-90, p. 49

Mr. Robert Parker: Bill C-42. In the context of sponsorship, it's going to be banned, but the choice is whether to ban it immediately or allow a transition period so event organizers can seek alternate sources of funding. I think that meets the test of reason. And the decision to apply the same rules to all sponsored events rather than treating them differently - I think that meets the test of reason.

And the decision to say there should be, as I believe will happen under the amendment, a firm start date to this, of October 1, which is what we had believed from the outset - the companies and event organized have generally been operating on that understanding - I think that meets the test of reason.

Overall, is it a common-sense proposal to ban sponsorship entirely? I do not believe that to be the case. I think it materially increases the chances of a piece of legislation once again being struck down by the courts because it is too extreme.

Should there be restrictions on sponsorship? Yes. Should there be restrictions on advertising? Again, yes. Should those be crafted to be reasonable and effective and non-attackable by the courts? I would think nobody more than members of this committee would be in favour of that.

But I must tell you that in regard the bill itself, which was passed by a previous Parliament - and this amendment is not central to that - much of the advice that you get from our friends who appeared earlier this morning leads straight in that direction.

Collectively, you would do yourselves, this issue, and everyone involved in it an enormous service if you would obtain from Statistics Canada and independent advisers accurate information on smoking prevalence in Canada. I've heard more nonsense in the last two days about what Canadians - young or old - have allegedly been doing over the last ten years than I've heard in quite a long time.

You've heard the suggestion that smoking increased after taxes went down. It didn't. You've heard the suggestion that smoking decreased when taxes were high. It didn't. Statistics Canada and Health Canada officials are able to tell you that. An accurate understanding of what really is going on in terms of behaviour by smokers and non-smokers would, I think, help you make improved policy decisions.

ED-90, pp. 60-61

Mr. Grant Hill: Mr. Parker, your assertion is that your ads don't direct themselves to kids. I don't agree with that at all and I'd like to address a specific promotional effort. It's the mountain biking championship. I'm a dad of a number of young men; I have boys who range in age from 14 to older. The mountain biking championship is attractive to those who are well under the legal age to smoke. Your company's efforts in that direction do not only advertise the event but, as one of the gentleman from Quebec said, go on long after the event.

I watch those ads in my own home community and they advertise events here in the east, in Quebec. Those ads can have no economic benefit to the event. They have only an attraction to mountain-biking-age kids. Your statement is absolutely ludicrous and you would do far more credit to your organization if you would stop saying these things.

Some of the other things you say can be debated and discussed, but this statement is beyond belief, I urge you to stop saying these foolish things.

The Chair: Mr. Parker.

...

Mr. Robert Parker: With respect, sir, I have to disagree that it's either foolish or inaccurate. The majority of adult smokers who are brand-switchers are in the 19 to 30 age group. It is very difficult to find any activity - The easy way to prove that is to talk to smokers, and you'll find out that they did what I did as an older teenager. Having occasionally smoked and finally decided I was a smoker and would start buying them instead of bumming them, I switched brands five or six times over the next ten years. That's the general pattern.

It's very difficult to find any activity or image that is attractive to a 19 to 30 year-old that is not attractive to 15-to 17-year-olds. They think they're adults. They want to be treated that way. You have children who I'm sure have told you that: "Dad, I'm old enough." They make up an incontestable part of audiences for family events, whether it's the Benson and Hedges thing or car racing. They're not the targets, not the principal audience. You simply don't find any examples of companies advertising - even when there were some restrictions - in vehicles or events that are primarily for 15-and 16-year-olds, like, for example, on the back of Jack and Jill or at soapbox derbies or in comic books.

ED-90, pp. 64-65

c.  A representative of the Alliance for Sponsorship Freedom, (comprised of 250 members, such as the Benson and Hedges Symphony of Fire at Ontario Place and even hotels) who asked that the following amendments be made to Bill C-42:

Hence, the alliance recommends that the government's new five-year transition period should be just that - five complete years with no off-site restrictions before the total ban comes into force. This would give our valuable events a reasonable time period to find replacement sponsors. It would be consistent with the approach agreed upon by members of the European Union, where sponsorship bans will apply in the years 2003 and 2006. Basically, we're saying don't put all those off-site restrictions on in years three to five.

If Canada's transition period is not harmonized with that of the European Community, then even the international motor sports events that are held in Canada run the risk of being dropped from the circuit entirely. Clearly, this would be in no one's best interest.

ED-91, p. 8

Another possible amendment we know you're considering is for sponsorship funding to be capped during the transition period. We again would ask you not to consider that cap because of expenses. We're in the business of trying to make these events grow bigger. We want to make a bigger contribution to the Canadian economy and to entertain more people through our events, and we would like to continue to see those events grow.

Some of the problems with caps would be things like prize money, and so forth. Du Maurier tennis would be a great example. To get big players in every year, they usually have to increase the amount of prizes they are giving, and a cap would certainly restrict that dramatically.

ED-91, p. 8

d.  In addition, the Committee received ten briefs.

ED-102 and 103

Amendments

On November 3, 1998, the Standing Committee on Health adopted amendments to Bill C-42.

ED-91

On November 4, 1998, the Committee reported to the House with the proposed amendments.

ED-83
ED-92

Third reading in the House of Commons

On November 16, 1998, Ms. Elinor Caplan (Parliamentary Secretary to the Minister of Health) participated in the debates during the third reading and stated:

Bill C-42 places us consistently among international leaders in controlling the promotion of tobacco. I hope all people watching the debate and those in the House know that the primary focus of the bill is a five-year timetable to end the marketing of tobacco products through event sponsorship. That is a very significant and important component of Bill C-42.

At the end of five years there will be a complete ban on tobacco sponsorship. We propose to accomplish this through a transitional process. Sports and cultural events that were in place with tobacco sponsorship prior to April 25, 1997, would have a two-year period without new sponsorship restrictions but only during that period. During the following three years we want to tighten the limits significantly.

On-site promotion of tobacco sponsorships would be able to continue. Off-site promotions would have to meet the 90:10 rules of the existing Tobacco Act. We would place stringent conditions on these off-site promotions to limit the exposure of young people to the marketing of tobacco products. In five years there would be no more promotions of tobacco sponsorship. Event names and facilities would not longer serve as a none-too-subtle reminder of tobacco and tobacco products.

Bill C-42 came after substantial discussions and consultations with all interested parties. We heard from the arts, sports and other groups that would be affected these changes. They indicated that they needed appropriate time frames to line up new sponsors. Bill C-42 recognizes that reality.

We also heard from the health community. Health organizations have been front and centre in the important work of the Government of Canada to help make Canada tobacco free and to ensure tobacco strategies and smoking cessation policies are in place. The Government of Canada acknowledges and supports the important work of the health community.

In particular I mention the work of the Canadian Cancer Society, Physicians for a Smoke Free Canada and the Non-Smokers' Rights Association in the broader effort. Many health groups have been a part of pushing appropriately for tobacco reduction strategies and strong anti-tobacco policies and legislation. They have been the leaders in the action over time to get the anti-smoking message out to Canadians. They have been powerful forces in encouraging Canadians to keep moving the tobacco agenda ahead and ensuring that Canada remains among world leaders.

Health organizations look at what we were doing in the bill. Most understand where we want to go and how we want to get there. Most support the directions we are taking in Bill C-42 toward the prohibition of tobacco sponsorship promotions. We recognize that most have concerns, and we are aware of those concerns.

They understand that the tobacco industry has constantly sought new ways to market its products. As we in government and previous governments have closed off old channel bylaws such as this one, we know the tobacco industry has found new channels. For example, tobacco companies have begun to use the Internet to support events marketing in Canada, something many could not have foreseen three or four years ago.

With that in mind, the Canadian Cancer Society identified amendments that it wanted to see in Bill C-42. During second reading debate many members of the opposition indicated support for those amendments. Many opposition members and I can tell the House that many members on the government benches also supported the amendments proposed by the Canadian Cancer Society.

Therefore, at committee, during the second reading clause by clause debate, we announced that we were not only intending to amend the bill, but we brought forward three particular amendments which were supportive of the proposals that had been made by the Canadian Cancer Society and supported by many, many others in the House and outside the House.

First, we proposed that October 1, 1998, would specifically be identified as the start date for the transition under this bill. In effect, that means that the five-year clock has already begun to tick down on sponsorship promotions. If that amendment passes, as it did at committee, and this bill passes in the House, the clock has already begun to tick and the original intent of the timeline is firmly in place, being October 1, 1998.

Second, we proposed that the only events that could be grandfathered would be those that were already promoted in Canada. Although we never intended that it would be otherwise, this change makes it crystal clear that an event cannot be moved from the United States or Australia or wherever into Canada and be treated as if it had already been here.

Third, we proposed that only events that had been held in Canada during the 15 months prior to April 25, 1997, could be grandfathered. Once again it was never the intention of the government to allow events to be resurrected solely for their value as tobacco marketing vehicles. However, this amendment, which was agreed to by the committee and is presently before the House in the amended format of this bill, formalizes that intent and makes it absolutely clear as to the way this bill will function and operate.

The Canadian Cancer Society, as I said at committee, proposed two other amendments. One would ban point of sale advertising and the other would set a ceiling on sponsorship spending. We looked at these very seriously and, after review, we believed that both raised questions of feasibility and enforceability. For those reasons we listened very carefully to what witnesses had to say at committee. Today we have a bill before us that does not reflect moving on anything that we do not believe is either feasible or enforceable.

We launched the tobacco control initiative in 1996. We started by setting aside $50 million a year over five years. We have made a commitment to public education, another key component of our strategy, one that we believe is critical, and we committed yet another $50 million.

From the very beginning we knew that getting the greatest impact out of these resources would take co-operation with the provinces, territories, communities and non-governmental organizations. We will be designing and are designing and implementing the elements of the strategy in conjunction with all of those stakeholders who share with us the determination to move the yardstick.

Many years of anti-tobacco programming have given us a great deal of information about what seems to work. Those years have taught us that to battle against tobacco is a step by step process and that it requires action in many areas.

Bill C-42 is one of the many valuable contributions to that work and I look forward to the debate and the passage in the House of the next step forward, a step that will lead to a complete ban in tobacco sponsorship within five years.

ED-93, pp. 31 to 34

On November 25, 1998, Ms. Elinor Caplan participated again, still as part of the third reading. She stated:

Permit me to briefly outline the contents of Bill C-42. As hon. members will recall, one section of the Tobacco Act includes restrictions on the way tobacco companies could advertise and promote their financial sponsorship of events such as automobile racing, show jumping, musical events and so forth.

In essence they could only display their brand names and logos on the bottom 10% on the face of ads, signs, billboards and so on. This restriction raised concerns. The motor sport industry, for instance, feared that the sudden loss of corporate sponsorship would jeopardize Canada's capacity to host international racing events.

Bill C-42 addresses these concerns. It proposes a phased approach which would delay the enforcement of the Tobacco Act promotional restrictions for two years. For the subsequent three years cigarette companies would be allowed to continue sponsoring events. However, their promotional activities outside the actual site, off-site, will be restricted to the 10% size restrictions specified in the Tobacco Act.

At the end of five years, by 2003, promotional sponsorship by cigarette makers will be banned altogether. That is why I say that Bill C-42 strengthens the Tobacco Act. Instead of merely restricting promotional activity, the bill will prohibit them entirely.

These legislative changes will put Canada ahead of other nations that hold the health of their citizens in high regard. Indeed we are moving faster than Australia and the European Union, which are both implementing a similar sponsorship ban in the year 2006, three years after ours.

There is no doubt that some of the cultural and sporting groups may feel the financial pinch when the cigarette manufacturing giants are forced to withdraw their millions of dollars in sponsorship promotion. However, the fact is arts organizations and sports promoters told us over and over again that what they really needed was time to find alternative sources of funding support. That, in a nutshell, is the purpose of Bill C-42.

These groups told us that they also needed fairness. Thus under the proposed amendments every group from the Newfoundland Symphony Orchestra to the Victoria International Jazz Festival will be treated the same. One group will not be entitled to cigarette money that is denied to another.

It is also important to point out that with Bill C-71, as with Bill C-42 before us today, the government has sought to protect public health while at the same time respecting legitimate concerns of cultural and sports organizations. As such Bill C-42 represents a careful compromise, a delicate balance between those who would desire a complete ban, preferably yesterday, and those who feel it is equally necessary to accommodate sponsored sports, cultural and entertainment events.

Striking that balance has necessitated extensive consultations both with health groups and with representatives of the arts and entertainment industry. In that context I wish to acknowledge the important contribution of the House of Commons Standing Committee of Health in carrying forward the consultation process and refining the bill before us today. As a result of the committee hearings, the government listened and further strengthened Bill C-42 as follows.

First, the start of the phase-in period of the bill is clearly identified as October 1, 1998. This means that if the legislation passes, the five-year clock will have already begun ticking.

Second, the grandfathering clause in Bill C-42 would only apply to events that had been held in Canada. In other words, promoters would not be able to move an event here from the United States or elsewhere merely to benefit from the phase-in provisions of the ban on cigarette sponsorship advertising.

Third, the new amendments would permit the grandfathering only of events that have been held in Canada in the 15 months prior to April 25, 1997. That would prevent promoters from resurrecting long dead festivals solely for their value as tobacco marketing vehicles. These changes to Bill C-42 were proposed by the health community, were adopted by the government and are consistent with our public health approach.

In conclusion, we have all heard the alarming facts. Smoking is far and away the major preventable cause of death and disease in Canada. It is estimated that nearly one in five deaths in Canada can be attributed to smoking and that is more than suicides, vehicle crashes, AIDS and murder combined. Every year 45,000 Canadians die of cancer, heart disease and lung disease as a result of tobacco use. Many more Canadians have their quality of life compromised by emphysema and other respiratory ailments.

We know that many people get hooked on smoking during their teen years and that young people are particularly vulnerable to peer pressure and messages, sometimes subliminal, encouraging them to smoke. Obviously as a caring society we have a moral obligation to act. We have a responsibility toward future generations and a duty to help our impressionable young people resist the lure of this deadly habit.

Health groups across the country urged us to lead the fight against smoking. We have not failed them. The Tobacco Act, as we propose to amend it, would give the government some meaningful ammunition in the battle against cigarette use. The legislation gives us as a society the power to look a gift horse in the mouth. We will have the wherewithal to say to tobacco manufacturers "Thanks, but no thanks. We value the health of our children too much to accept your money for event sponsorship."

ED-94, pp. 56 to 58

On December 1, 1998, Bill C-42 was adopted at third reading.

ED-96

Bill C-42 in the Senate

On December 7, 1998, Bill C-42 had second reading in the Senate and the Honourable Francis William Mahovlich stated:

Briefly, the amendments contained in Bill C-42 would strengthen the TobaccoAct passed by the last Parliament. This legislation would put us squarely at the international forefront of tobacco control. Other countries are developing similar bans, but we will have ours in place first, three years ahead of the European Union.

Bill C-42 introduces a transitional process that would give existing events a two-year period without new sponsorship restrictions. During the following three years, off-site promotions would be confined to the lower 10 per cent of any signs, banners, billboards, or posters associated with the event in restricted locations. This transitional period would allow events organizers the time they need to find alternate sponsors.

In five years, there would be no more promotions of tobacco sponsorship whatsoever. Event names and facilities would no longer serve as none-too-subtle reminders of tobacco, and the law would apply even-handedly to all - busker festivals, hang-gliding championships, dance competitions, or air shows.

Honourable senators, I should like to draw your attention to a few more changes that were made to the bill as originally drafted during committee hearings in the other place. These amendments, as I understand it, sought to address the concerns of the health community which has been so active in helping Canada combat the tobacco menace.

Specifically, the first of these amendments would clarify that the five-year phase-in of the promotions ban actually began last October 1. In other words, the clock is already ticking for tobacco companies.

The other two amendments restrict the legislation's grandfathering provisions to events recently held and already promoted in Canada. The intent is to ensure that events cannot be moved to Canada from the United States or elsewhere and be treated during the law's phase-in period as though they have always been held here. Similarly, it should not be permissible to resurrect long-abandoned events merely for their value as tobacco marketing vehicles.

I mentioned a moment ago that Bill C-42 would strengthen the Tobacco Act. That is true because there is no complete ban on those types of promotions under the existing Act. All that is required under the current law is that cigarette companies adhere to the 90-10 rule which restricts their advertising space to the bottom 10 per cent of signs and billboards.

The health community was not satisfied with that, nor should we be. If we believe in severing the noxious association between cigarettes and entertainment, then we must do it right. Simply shrinking brand names or moving them around on the billboard will not do the trick. We must be prepared to rid our nation of signs and symbols of smoking because they are a constant and unwelcome invitation to our young people. They are like a siren call, beckoning Canadians toward manifest danger.

Honourable senators, we in this chamber understand the importance of combating our single biggest public health threat with all the weapons at our disposal. Bill C-42 alone will not rid our society of smoking, but it would take us one more worthwhile step closer.

I would urge my honourable colleagues to support this legislation.

On motion of Senator Kinsella, for Senator Lavoie-Roux, debate adjourned.

ED-97, p. 39

Standing Senate Committee on Legal and Constitutional Affairs

Bill C-42 was examined by the Standing Committee on Legal and Constitutional Affairs on December 9, 1998. At that time, John Luik appeared again and he acknowledged having worked as a consultant for the tobacco industry and affirmed that he has a Ph.D. in social sciences.

ED-99, pp. 18, 19 and 24

Mr. Parker, representing the three plaintiffs, also appeared, stating:

Do I believe that advertising and promotion for tobacco-related events or for the tobacco products themselves should generally not be visible to children and certainly not be directed at them? Absolutely. There are many areas in which we are in general agreement with the goals and, in some cases, with the methods. There are an equal number of instances where we think that the methods are extreme and unworkable, however. Banning sponsorships, the issue before you, is certainly an example of that.

ED-99, p. 21

On December 9, 1998, the Honourable Allan Rock, Minister of Health, also appeared before the Senate Committee, stating:

Mr. Rock: When I was first appointed Minister of Health, I found on my desk a copy of a letter sent by my predecessor dated April 27, 1997, to an addressee whose name I cannot now recall. That letter was a commitment to amend the Tobacco Act so that international auto sports could continue to enjoy tobacco sponsorship in Canada.

It presented a challenge because it was a commitment that, in order to fulfil, would require us to change the Act. We thought at first that, in a way, it might weaken it. It was in that sense that I said, when asked, that in order to fulfil the commitment we would do the least amount necessary and we would open it as narrowly as possible in order to ensure that we kept our word but did not go further than we had to in doing so. I then added that we would increase taxes to the extent possible and add whatever other regulation we could to achieve our stated goal.

You ask what changed my mind. Frankly, we found a better way. We found a way to fulfil that commitment while at the same time making the Tobacco Act tougher on tobacco. We found a way to turn that difficulty into an opportunity. As I have already explained, the Tobacco Act approved by Parliament in the spring of 1997 would have allowed tobacco sponsorship to go on forever. Although it was limited, there would still be a tobacco company's name at the event and, indeed, off-site.

We found a way to fulfil the commitment to allow the motor sports to continue with sponsorship but, at the same time, we found a way to write into the law a date by which not only that sponsorship but all sponsorship would end forever. That date is only five years distant. In the meantime, as you have heard me say in opening and as you know from the bill, the sponsorship provisions would be severely restricted after the first two-year period.

My answer, in short, senator, is that although I thought at first that we would have to create an exception to permit motor sports to continue, the fact is we found a better way.

In answer to the question about what further legislation I have in mind, in the very short term, we will be tabling regulations dealing with reporting requirements. They will fulfil commitments we made in June of this year when I tabled Bill C-42 that arise from a long period of consultation with interested and knowledgeable parties.

We will also be publishing information letters with respect to other proposed regulations, including labelling, packaging and some other elements of marketing. Fundamentally, our intended steps in the short to medium term will involve regulations, which will exercise powers provided by the Tobacco Act and which form part of the overall strategy against tobacco.

ED-99, pp. 6, 7 (evidence for the evening session)

A bit further on, following a question by Senator Lynch-Staunton on the constitutionality of the Act, he explained:

Senator Lynch-Staunton: ... One of the reasons Minister Epp's bill was struck down by the Supreme Court is that the majority felt that it was not Charter-proof and that it violated the Charter by not allowing commercial free speech. Why would their opinion in that case not be the same as in this case since there is to be imposed, within five years, a partial ban on commercial free speech?

Mr. Rock: In essence, it is free speech in the commercial context. The Supreme Court of Canada found that there is a right in the commercial context for a vendor of goods to communicate with potential customers of goods, and to extinguish that communication is a violation of the right to free speech in the commercial sense.

I will give you a short answer because the long one would be very tiresome. It seems to me on a reading of the Supreme Court of Canada's judgment the first time around that they found on an overall consideration of the statute that it effectively deprived the vendor of the right to communicate with the customer. It cut off the communication altogether, and that was unreasonable.

Bill C-71 was drafted to permit a level of communication, which Parliament thought was commensurate with the nature of what is communicated. Those who smoke could get information from people who sold smoking materials relevant to the smoker's decision about which brand to purchase, in which size, and so on. Bill C-71 allows a degree of communication commensurate with the societal risk as Parliament assessed it.

Sponsorship is a form of communication; promotion is a form of communication. When Bill C-71 was adopted by Parliament, the balance was such that although such communication was limited, it was still permitted in some form. Bill C-42 goes beyond that and extinguishes that kind of communication. We looked carefully at the question of whether in doing so we crossed the line drawn by the Supreme Court of Canada.

Our best judgment, senator, is that this is constitutionally defensible because even after that form of communication is stopped, the other forms permitted by Bill C-71 will continue. There are still ways in which the manufacturers and purveyors of tobacco can communicate with their customers about their product, whether it is in limited circulation publications, in specific physical places where only persons of age are permitted to go, or whether it is on the package itself.

While it is fair to say that Bill C-42 affects the balance struck by Bill C-71 and further limits the communication between manufacturer and purveyor on the one hand and the customer on the other, it does not extinguish it. It does not commit the legal offence that the former statute did, although it further restricts the nature of the communication.

ED-99, pp. 10-11 (evidence for the evening session)

Third reading in the Senate

On December 10, 1998, the Honourable Gérald-A. Beaudoin participated in the debate on Bill C-42, stating:

Hon. Gérald-A. Beaudoin: Honourable senators, I have a few words to say on the legal and constitutional issue involving Bill C-42. We all know that Canada's Parliament can legislate on substances that present a danger because of its jurisdiction over criminal matters. Tobacco presents a health hazard. Canada's Parliament is inspired to intervene in this matter, particularly because it has considerable legislative authority, in my opinion. The provinces, of course, have jurisdiction in health matters and they too can intervene, but they do not intervene in the same way and for the same reasons as Parliament. They are in their field, that is property and civil law under section 92.13, whereas the federal government bases its legislative jurisdiction in criminal matters on section 91.27. Another problem is that of tobacco advertising.

A total ban on advertising contravenes the Canadian Charter of Rights and Freedoms under freedom of expression, but a relative and not absolute ban is acceptable according to current case law at the highest legal level.

I am glad that we covered this thoroughly in the Standing Senate Committee on Legal and Constitutional Affairs because the issue has not been resolved.

That having been said, I personally find the bill perfectly acceptable.

ED-100, p. 36

On December 10, 1998, Bill C-42 was adopted at third reading.

ED-100, p. 40