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

Appendix 9

Tobacco Products Information Regulations

Table of Contents

1. Introduction
2. Reasons for the challenge
   1. Feasibility of printing the warnings
   2. Inability to comply with the Regulationsregarding the manufacturing and insertion of a prospectus containing health information
   3. Toxic emissions and constituents
   4. Power of delegation
   5. Federal jurisdiction
   6. Expropriation
   7. Freedom of expression
   8. Effectiveness of health messages
3. 1.  Conclusions

A. Introduction

1.  The Tobacco Products Information Regulations went into effect on June 26, 2000, and required tobacco manufacturers to affix health warnings and information on cigarette packages as of December 26, 2000, for brands with sales representing more than 2% of total cigarette sales in Canada. The other brands were to comply with the regulatory requirements within one year.

2.  On September 12 and 13, 2000, the appellants ITL, RBH and JTI presented before this Court, then presided over by the Honourable Judge Danielle Grenier, an interlocutory motion requesting a stay on the enforcement of the Regulations.

3.  The appellants mainly pleaded the impossibility of printing the warnings in colours that matched as closely as possible those of the source document.

4.  On September 20, 2000, the Honourable Judge Grenier rejected the motion as being unfounded.

5.  The allegations of the appellants as to the impossibility of printing the warnings "in colours that matched as closely as possible those of the source document," on their inability to comply with the Regulationsregarding the manufacturing and insertion into the packages of a pamphlet measuring "approximately 50 x 88 mm" and the fears of imprisonment that could result from it, were not founded in reality.

6.  During the trial, the appellants did not submit any evidence listing these impossibilities on which they were basing their argument for the request for a stay.

7.  It was also proven that the appellants had complied with the Regulations and had printed the health information, the warnings and the information regarding the constituents, as required by the Tobacco Products Information Regulations.

8.  This argument on the impossibility of complying with the Regulationsdue the lack of precision in its provisions was not pursued in the plaintiffs' briefs.

9.  If it had not been for this ruling rejecting the arguments of the appellants, Canadians would have been deprived of essential information on the damaging effects of smoking on health, on the basis of an argument without any factual basis.

10.  In order to understand the dispute regarding the Tobacco Products Information Regulations, it is necessary to go back to part of the argument as presented in the interlocutory motion requesting a stay on the enforcement of the Regulations.

11.  First of all, it is important to observe that the appellants did not contest during the hearing on the motion and still do not contest to this day:

• The contents of the warnings (subs. 3(2) - Tobacco Products Information Regulations);
• The contents of the health information that must appear on the package or the pamphlet;
• Disclosure of the contents of toxic emissions and constituents.¹

The reasons for the challenge were the following:

• Feasibility of printing the warnings;
• Inability to comply with the Regulationsregarding the manufacturing and insertion of a prospectus containing health information;
• Toxic emissions and constituents;
• Power of delegation;
• Federal jurisdiction;
• Expropriation;
• Freedom of expression;
• Effectiveness of health messages.

B. Reasons for the challenge

1. Feasibility of printing the warnings

12.  The appellants alleged that the warnings had to be identical from one brand to another² while the Regulations (subs. 3(3)) mention that the colours must match as closely as possible those of the source document with the greatest clarity possible given the printing technique used.

13.  The evidence tabled as part of motion for a stay revealed that the number of colours used in printing the packages varies from one package to another so that for several packages, adding additional colours would be possible, while others would be required to work with the available colours to reproduce the health messages. The regulations do not impose a specific reproduction technique, the manufacturers have all the latitude needed to print the warnings (including the affixing of labels).

14.  Trial evidence finally demonstrated that the appellants had complied with the Regulations and had printed the warnings, as required by the Tobacco Products Information Regulations.

15.  This argument on the impossibility of complying with the Regulationswas not pursued in the plaintiffs' briefs.

2.  Inability to comply with the Regulations regarding the manufacturing and insertion of a prospectus containing health information

16.  The slide top packages represent 94.51% of the sales of the plaintiff ITL. However, ITL had requested, through an interlocutory motion, the total suspension of the regulations since for certain small "flip-top" packages, it alleged it was impossible to insert the prescribed pamphlet measuring "approximately 50 x 88 mm" (subs. 7 (2)) but rather a 42.5 mm x 77.5 mm³ pamphlet. This argument does not take into account the fact that subs. 7(2) of the Regulations mentions that the dimensions are approximately 50 x 88 mm or that the pamphlet can be folded.

17.  Only ITL presented this argument.

18.  The evidence demonstrated that ITL has complied with the Regulations regarding the manufacturing and insertion into cigarette packages of a pamphlet "approximately50 x 88 mm," as required by the Tobacco Products Information Regulations. This argument regarding the impossibility of complying with the Regulationsdue to the imprecision of the provisions was not pursued in the plaintiffs' briefs.

3.  Toxic emissions and constituents

19.  In their motion for a stay, the plaintiffs requested the immediate suspension of sections 8 to 11 of the Regulations on the grounds that the information on emissions and constituents appearing on the side of certain packages would be printed using a font point size of less than 10 points.

20.  The Regulations (para. 11(b)) do not stipulate any minimum size of the characters, stipulating only that the information required must be adapted to the size of the package.

21.  The plaintiffs complied with the Regulations and did not pursue this argument in their briefs.

4.  Power of delegation

22.  The plaintiffs allege that the Tobacco Products Information Regulations is ultra vires of the Act (para. 3(a) of ITL's re-amended statement).

23.  However,

• Sections 4(d) and 17 of the Tobacco Act delegates to the Governor in Council the power to impose health messages on the packaging. Section 42.1 adds that the Governor in Council may not make any regulations pursuant to sections 7, 14, 17, 33 or 42 unless the Minister has tabled the proposed regulations before the House of Commons.
• Section 42.1 adds that the competent committee of the House of Commons is automatically given the draft regulations and can conduct an enquiry or hold public hearings on this issue and report its findings to the House.
• The following steps have been completed regarding the challenged regulations:

- May 12, 2000 :

Tabling of the proposed regulations before the House of Commons, following numerous consultations with the industry.⁴ May 30, 2000

- May 31, 2000, June 1, 2000, June 5, 2000, June 6, 2000, June 7, 2000:

Public hearings before the House of Commons Standing Committee on Health.

- June 8, 2000:

Tabling before the House of Commons of the report from the Standing Committee on Health and unanimous approval by the House.

24.  The challenged regulations benefit from a presumption of validity:

CÔTÉ, Pierre-André, Interprétation des lois, 2e édition,
Les Éditions Yvon Blais Inc., 1990

On pages 349 and 350:

[Translation]

The presumption of validity indeed applies to the interpretation of statutes with respect to the Constitution as well as to regulations with respect to the enabling statutes and Common Law regulations relative to excess of power.

Intent of the regulations

25.  The appellant party did not contest the validity of s. 4 of the Tobacco Act or its intent:

4. The purpose of this Act is to provide a legislative response to a national public health problem of substantial and pressing concern and, in particular,

(a) to protect the health of Canadians in light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases;

(b) to protect young persons and others from inducements to use tobacco products and the consequent dependence on them;

(c) to protect the health of young persons by restricting access to tobacco products; and

(d) to enhance public awareness of the health hazards of using tobacco products.

26.  Paragraph 17(a) of the Tobacco Act provides the Governor in Council with the power to impose health messages on the packaging:

17. The Governor in Council may make regulations

(a) respecting the information that must appear on packages and in leaflets about tobacco products and their emissions and the health hazards and health effects arising from the use of the products and from their emissions;

27.  The Tobacco Products Information Regulations participates in the legislative objective:

ED-115 Tobacco Products Information Regulations - Regulatory Impact Analysis Statement, SOR/2000-272, June 26, 2000, Canada Gazette, Part II, Vol. 134, No. 1.

On page 1748:

These Regulations support the Tobacco Act ("the Act") in providing a legislative response to a national health problem of substantial and pressing concern. In particular, the Regulations serve to uphold the purposes of the Act by:

° protecting the health of Canadians in light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases;

° protecting young persons and others from inducements to use tobacco products and the consequent dependence on them; and

° enhancing public awareness of the health hazards of using tobacco products.

On page 1749:

However, the positive overall trend masks the fact that smoking rates remain alarmingly high in certain populations. The smoking rate among youth aged 15-19, in contrast to that observed among adults, has increased significantly during the last ten years. In 1999, 28 percent of Canadian teens smoked. This is a significant increase from 23 percent in 1991. Approximately 62 percent of First Nations and 72 percent of Inuit smoke. This rate is more than double that of the general population. In addition, tobacco use is higher among Canadians of lower socio-economic status and among Francophones.

The primary objective of the federal government's tobacco control strategy is to reduce the use of tobacco products among all Canadians and, to the extent possible, the related adverse health impacts of tobacco use - including among young persons. The Regulations, which require the display of health warnings and health information on tobacco packaging, will be a key component of the federal government's public education campaign on tobacco use.

On page 1750:

Research has indicated that the impact of the current health warning messages seen on packages of tobacco products is wearing out.^{5 6 7 8 9}. They are no longer as effective as before since they have been in place for some years. In addition, they do not address a number of knowledge gaps on the part of users, nor do they reflect the true level of hazard associated with the product.¹⁰Additionally, as current labelling practices are done on a voluntary basis, not all tobacco products sold in Canada are labelled.¹¹

On page 1752-1753:

"As indicated earlier, the display of information on packages must be noticeable, believable, relevant and memorable to be effective. Research has indicated that enlarging the area occupied by the health warning (when compared to the area currently utilized by tobacco manufacturers on a voluntary basis), using colourful graphic images for health warnings and adding facts and statistics, increases the effectiveness of the displayed health warning.^{12 13 14 15 16 17 18 19 20 21}All these elements are found in the Regulations, and contribute to make the required health warnings more easily noticed, believed and recalled. As for relevance, the contents of the health warnings were selected to make them relevant to the target groups, especially the smokers known as "quitters" and "pre-quitters."

Because smokers have indicated they want more information on what compounds are found in the smoke they inhale^{2223 24 25 26 27}, six toxic emissions are now required to be displayed on the packages (compared to three in the former Regulations). Similarly, toxic constituent information is required on smokeless tobacco packages to provide important information to the users of these products as well.²⁸ Finally, smoking cessation messages were developed in order to assist smokers who are trying to quit, or are considering quitting. ²⁹

Given the significance of the adverse health consequences of tobacco use^{30 31}, and the importance of providing essential information in the most effective way, the Regulations are considered the best option."

28.  All of that connects with the concerns expressed by the Supreme Court of Canada in RJR-MacDonald v. Attorney General of Canada, [1995] 3 S.C.R. 199:

La Forest J., on page 274:

The most distressing aspect of the evidence is that tobacco consumption is most widespread among the most vulnerable, the young and the less educated, at whom much of the advertising is specifically directed.

29.  Ian Potter, Assistant Deputy Minister, Health Canada, testified before the Standing Committee on Health on May 30, 2000, as part of the hearings on regulations.³²

On page 38/496:

Health warning messages are a vital part of any tobacco control regime. They fulfil one of the key goals of the Tobacco Act, and that is to enhance public awareness of the health hazards of tobacco use. Research indicates that the impact of the current health warning messages now seen on the packages of products is wearing out. The current messages also do not address the knowledge gap.

Our research shows that Canadians are generally aware that tobacco is bad for health, but they are not aware of the range and seriousness of the diseases caused by smoking.^{33 34} In particular, smokers are less likely than non-smokers to think tobacco use is a major health problem. This is one of the fundamental reasons we are pursuing these regulations.

For example, young people who smoke are notably less likely, at 68%, than non-smoking youth, at 89%, to see tobacco as a major health problem.³⁵ That is, of young people who are non-smokers, 89% see tobacco use as a major health problem, but of young smokers, only 68% see it as a major health problem. This is the knowledge gap that these regulations are intended to address.

Not all tobacco products in Canada are labelled, and currently no labelling regulations are in place since the Supreme Court decision. These will fill that gap.

With the proposed products information regulations, there would be specific requirements in place to ensure effective health warning messages are placed on all tobacco products sold in Canada. The labels would call renewed attention to the health warning messages and fill in knowledge gaps among smokers and non-smokers."

30.  The intent of the warnings on the packaging is to educate the public on the dangers of smoking and contribute to its reduction:

- R.J.R.-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311:

On page 353:

Further, both parties agree that past studies have shown that health warnings on tobacco product packages do have some effects in terms of increasing public awareness of the dangers of smoking and in reducing the overall incidence of smoking in our society. The applicants, however, argued strenuously that the government has not shown and cannot show that the specific requirements imposed by the impugned regulations have any positive public benefits. We do not think that such an argument assists the applicants at this interlocutory stage.

- Attorney General of Canada v. R.J.R.-MacDonald Inc. [1993] R.J.Q. 375 (C.A.):

Brossard J., on pages 436 and 437:

[Translation]
As for s. 9, neither the judgment in appeal nor Respondents contest the fact that negative messages are likely to discourage consumption. In my view, this is more of a probability than a mere possibility. The argument invoked by Respondents, which is accepted in the judgment in appeal, is simply that it was not shown that an unattributed negative message has a greater impact in this regard than a message which is attributed to those imposing it.

- Tobacco Products Information Regulations - Amendment of March 20, 1993, Regulatory Impact Analysis Statement:

On page 795:

[Translation]
The increased number and revised format of the health messages reflect the strong consensus of the public health community that the serious health hazards of using these products be more fully and effectively communicated to consumers."

On page 797:

[Translation]
Moreover, the examination of results from six surveys, including a survey conducted on behalf of Imperial Tobacco Inc and made public during legal proceedings against the Act, revealed that the Canadian population possesses a superficial knowledge of the consequences of smoking on health. These surveys showed that Canadians underestimate the potential lethality of lung cancer (65% compare to the actual rate of 90%); only half of Canadians know that smoking is an important cause of cardiac disease and although most of them consider tobacco to be an addictive substance, 30% of Canadians continue to smoke and nearly 47,000 took up the habit in the last year. Improved health messages would help smokers become more aware of the damaging effects of smoking. This measure is part of the logic of the Tobacco Products Control Act. Although it is difficult to predict the impact of this measure on smokers, certain data tends to demonstrate that consumption should drop by approximately 0.6% per year and that the improved messages could encourage smokers to give up the habit and induce potential smokers not to start at all.

- Regulatory Impact Analysis Statement, January 18, 1989:

On page 70:

The new medical public health notices that must appear on all tobacco products will replace the current notices, which are published voluntarily and inform the public on the dangers connected to the consumption of these products.

- D-142 Surgeon General of the United States "Reducing the Health Consequences of Smoking," 1989:

Page 14:

One element of the decision of whether or not to smoke is personal understanding of the dangers involved. Chapter 4 reviews changes in public knowledge since 1964. The most basic findings from scientific research on the health consequences of smoking have been conveyed to and accepted by the American public, at least at a generalized level. Nevertheless, survey research reveals important gaps in public understanding of the hazards of smoking. Smokers report less understanding of the basic consequences of smoking than do nonsmokers; furthermore, smokers often do not internalize, or personalize, the hazards they acknowledge as applying to smokers in general. In addition, knowledge of smoking-and-health facts beyond the most basic information is not possessed by significant numbers of Americans. Thus, a substantial educational task remains.

Page 478:

Effectiveness of Cigarette Warning Labels

In May 1987, the Assistant Secretary for Health, Department of Health and Human Services, transmitted a report to Congress on the effects of health warning labels (US DHHS 1987d). Based on a review of the research literature, the report reached three major conclusions. First, health warning labels can have an impact on consumers if designed to take account of factors that influence consumer response to warning labels (e.g. a consumer's previous experience with the product, previous knowledge of the risks associated with product use, and education and reading levels). Second, health warning labels can have an impact upon the consumer if the labels are designed effectively (e.g. visible format and providing specific rather than general information). Third, studies that have examined the impact of health warning labels in "real world" situations have concluded that the labels did have an impact on consumer behaviour. The report cautioned, however, that the results of these studies "cannot be regarded as conclusive evidence that health warning labels are necessarily effective in all situations". This Section reviews evidence related to the effectiveness of cigarette warning labels in the United States.

Page 480:

Furthermore, information in the current warnings is presented technically and abstractly rather than in a concrete and personal manner. A reader is more likely to read and learn information that is made personally relevant as opposed to that which is abstract and technical (Fishbein 1977). Researchers who have addressed the format of warnings have found that consumers' attention will be most effectively caught by novel formats (Cohen and Srull 1980). This line of study has suggested that the communications effectiveness of the post-1984 warnings may have been diminished because the same rectangular shape of the pre-1985 warnings was maintained (Bhalla and Lastovicka 1984).

31.  The appellants allege that the Regulations are ultra vires because the government adopted them with the intent of reducing the value of their trademarks and to deprive them of the possibility of communicating with their consumers (ITL Brief, p. 59).

32.  They refer the court to P-10 New Directions for Tobacco Control in Canada - A National Strategy, in which the word denormalization means, according to their allegations, that this could be the government's objectives.

33.  However, that document explains in detail the meaning of the government policy of denormalization:

Normalize - to make normal or regular

Normalization - the process of making normal or regular

Denormalization- to remove, or steer away from, what seems to be normal"

...

"Denormalization, in the context of social behaviour, aims to change attitudes toward what is generally regarded as normal or acceptable behaviour, including through social marketing. When attitudes change, behaviour will also change because humans generally want to act in ways that are acceptable to others.

There are many examples of how social behaviour has been "denormalized", for example:

• Failure to use safety belts and child restraints;
• Drinking and driving;
• Poop and scoop laws for dogs; and
• The shift away from corporal punishment for children.

There is clearly scope to consider further behavioural denormalization, particularly where it focuses on the consequences for others, rather than just the person smoking:

• Working to discourage smoking in enclosed public or private spaces where others could be affected by second-hand smoke, including children in the home;
• Working to discourage smoking by and around pregnant women. (Appendix C)

34.  Nowhere in this document is there mention of reducing the value of the trademarks or depriving the plaintiffs of the possibility of communicating with their consumers. The plaintiffs presented no evidence regarding these allegations.

5.   Federal jurisdiction

35.  In paragraph 3(c) of the ITL re-amended statement, it can be read:

They are ultra vires the Parliament of Canada in that they constitute the regulation of an industry within the exclusive jurisdiction of the Provinces and not a valid exercise of the federal criminal law power.

36.  It would appear that the appellants abandoned this argument in their briefs. It is still useful to point out to the Honourable Court the basis for federal jurisdiction in this matter.

- In RJR-MacDonald v. Attorney General of Canada, [1995] 3 S.C.R. 199, the Supreme Court of Canada unanimously concluded that the imposition of health messages prescribed by the Tobacco Products Control Act in 1989 was a federal jurisdiction in criminal law.

La Forest J., on page 257:

In my view, once it is accepted that Parliament may validly legislate under the criminal law power with respect to the manufacture and sale of tobacco products, it logically follows that Parliament may also validly legislate under that power to prohibit the advertisement of tobacco products and sales of products without health warnings. In either case, Parliament is legislating to effect the same underlying criminal public purpose: protecting Canadians from harmful and dangerous products.

La Forest J., on page 263:

The appellants' third argument is that the Act is fundamentally regulatory, not criminal, in nature.

...

In my view, this argument fails because it disregards the long-established principle that the criminal law may validly contain exemptions for certain conduct without losing its status as criminal law.

La Forest J., on page 321:

In a modern state, labelling of products, and especially products for human consumption, are subject to state regulation as a matter of course.

...

Seen in this way, the mandatory health warnings under s. 9 are no different from unattributed labelling requirements under the Hazardous Products Act, under which manufacturers of hazardous products are required to place unattributed warnings, such as "DANGER" or "POISON", and hazard symbols, such as skull and crossbones on their products; see Consumer Chemicals and Containers Regulations, SOR/88-556. I should add that the issue has ramifications for many other spheres of activity where individuals may in certain prescribed circumstances be required to place danger signs on facilities used by the public or on construction sites, and so on.

McLachlin J., on page 326:

The first issue is whether Parliament had the power to enact the ban and warning requirements, given that advertising and promotion of particular industries generally are matters of provincial competence. I agree with my colleague, Justice La Forest, that Parliament may impose advertising bans and require health warnings on tobacco products under its criminal law power.

Major J., on page 364:

The Act, except for s. 9 and its associated provisions relating to mandatory health warnings on tobacco packaging, cannot be upheld as valid criminal legislation. The Act is a regulatory measure aimed at decreasing tobacco consumption.

6.   Expropriation

37.  Paragraph 3(d) of the re-amended ITL statement, reads:

They effect the virtual expropriation of Imperial's assets in its trademarks and in its packages, without the slightest compensation being paid or contemplated and without Parliamentary authority to this effect, even assuming Parliament could give it.

38.  Economic and property rights are not protected under the Charter.

- Irwin Toy Limited v. A.G. of Quebec, [1989] 1 S.C.R. 927:

On page 1003:

The intentional exclusion of property from s. 7, and the substitution therefore of "security of the person" has, in our estimation, a dual effect. First, it leads to a general inference that economic rights as generally encompassed by the term "property" are not within the perimeters of the s. 7 guarantee.

- Reference Re Criminal Code (Man.), [1990] 1 S.C.R. 1123:

On pages 1170 and 1171:

In short then I find myself in agreement with the following statement of McIntyre J. in the Reference Re Public Service Employee Relations Act (Alta.), supra, at p. 412:

It is also to be observed that the Charter, with the possible exception of s. 6(2)(b) (right to earn a livelihood in any province) and s. 6(4), does not concern itself with economic rights.

39.  The exercise of regulatory power, notably for purposes of public interest, does not equal expropriation. The government is not appropriating 50% of the package for its own use, but to promote public health.

- HOGG, P.W., Constitutional Law of Canada, 4th Edition, Toronto, Carswell, 1997:

On page 714:

Most forms of regulation impose costs on those who are regulated, and it would be intolerably costly to compensate them. Moreover much regulation has a redistributive purpose: it is designed to reduce the rights of one group (manufacturers, employers, for example) and increase the rights of another (consumers, employees, for example). A compensation regime would work at cross-purposes to the purpose of the regulations.

40.  The plaintiffs had pleaded the argument of expropriation unsuccessfully during the introduction of the new regulations in 1993.

- ED-209, RJR-MacDonald Inc. v. A.G. of Canada - Transcript of audio tapes of proceedings: Mr. Colin K. Irving:

Page 34:

The statute authorizes the government to convey information. It does not authorize the government to expropriate the company's packaging. That is what they are doing now and in my submission they are doing it without any supporting evidence at all. That is the point.

41.  This three-line argument presented in the JTI brief on page 9 is completely identical to the one submitted and rejected by the Supreme Court in 1995 in the RJR case. Such an argument has no better chance of being accepted in this case.

42.  The plaintiffs are already committing approximately 35% of their package surface to health messages. The new regulations will only be increasing this surface area by 15% to bring it up to 50%.^{36 37}

43.  Several federal laws and regulations require the affixing of messages on the packaging of certain products without it diminishing the value of the product's trademark:

- RJR-MacDonald v. Attorney General of Canada, [1995] 3 S.C.R. 199:

La Forest J., on page 321:

In a modern state, labelling of products, and especially products for human consumption, are subject to state regulation as a matter of course.

...

Seen in this way, the mandatory health warnings under s. 9 are no different from unattributed labelling requirements under the Hazardous Products Act, under which manufacturers of hazardous products are required to place unattributed warnings, such as "DANGER" or "POISON", and hazard symbols, such as skull and crossbones on their products; see Consumer Chemicals and Containers Regulations, SOR/88-556. I should add that the issue has ramifications for many other spheres of activity where individuals may in certain prescribed circumstances be required to place danger signs on facilities used by the public or on construction sites, and so on.

- Regina v. Steinberg's Ltd., 80 D.L.R. (3d) 741:

On page 751:

... that a statute which in its entirety deals with honest labelling has a pith and substance which is the protection of the consumer, and is legislation "in relation to" criminal law. The categories of crime are not closed, and the development of new commercial trade practices in recent years requires that these categories be broadened to include what has become known as consumer protection legislation.

On page 753:

The Consumer Packaging and Labelling Act has the public purpose of safeguarding the peace and security of consumers (i.e., their peace of mind and their security arising from the knowledge that they are not being fraudulently imposed upon by suppliers in cases where the consumers' means of knowledge is clearly inferior to that of the supplier) and of preventing the commercially immoral acts of false or intentionally misleading labelling and packaging, and thus, in my opinion, complies squarely with the tests prescribed by Lord Atkin and Rand, J., supra.

- R. v. Westfair Foods Ltd., 111 Man. R. (2d) 47:

On page 50:

[13] The Consumer Packaging and Labelling Act has two primary purposes. The first purpose is to ensure that any information provided to a consumer on a prepackaged product is not false or misleading in any way. However, there is a second purpose and that is to provide information to consumers so they can make informed choices. That is the mischief which s. 4 is intended to prevent.

On page 51:

The purpose of this legislation is clearly to arm the consumer with the knowledge necessary to make an informed buying decision about products being offered for sale.

- R. v. Importations cachères Hahamovitch Inc., 500-36-001436-982:

On page 2:

[Translation]

In effect, the protection of Canadian health, as in the case there, is justification for federal Parliament to legislate standards for labelling food products, and in the case of these being contravened, to impose penalties upon summary conviction. This is a criminal matter within federal jurisdiction and was definitively ruled as such by the Supreme Court in R v. Wetmore (1983) 3 S.C.R. 284.

In other classes, The following judgements follow the same course. RJR-MacDonald Inc. v. The Attorney General of Canada [1995] 3 S.C.R. 199 and R v. Hydro-Québec [1997] 3 S.C.R. 213.

- Hazardous Products Act, R.S.C., c. H-3, para. 15 (c), (d), (e);

- Consumer Chemicals and Containers Regulations, SOR/88-556, sections 13 to 19;

- Consumer Packaging and Labelling Act, R.S.C., c. C-38, subs. 18(1);

- Consumer Packaging and Labelling Regulations, C.R.C., c. 417.

44.  The presence of health messages on packages is also justified in order to counteract the image projected by certain packages, to the effect that certain tobacco products are better for one's health.³⁸

- RBH 3802 (JM-3) Canadian Classics Historical:

Page 9267:

Response to "Without Additives" was highly positive. It appears to generate more positive impact than "100% Canadian tobacco".

· Smokers appear to take the phrase at face value...i.e. that it implies a "healthier...more natural" product. While a healthier product was not a preoccupation among these individuals, it was one which they would appear to value.

· The benefit of a cigarette without additives may be more related to the smoker's relationship with others. There was some evidence that a cigarette positioned as "healthier" would deflect or reduce criticism... "it would get critics off my back...it sounds not as bad".

- ED-275 Federal Trade Commission - Cigarette Report for 2000 - issued May 2002:

Page 2:

In August 1999, the Commission gave final approval to a consent agreement with the R. J. Reynolds Tobacco Company that resolved charges that advertisements for Winston no additives cigarettes implied, without a reasonable basis, that Winston cigarettes are less hazardous than otherwise comparable cigarettes because they do not contain additives. The settlements requires Reynolds to include the disclosure No additives in our tobacco does NOT mean a safer cigarette" in most advertising for Winston or any other tobacco products Reynolds advertises as having no additives. In addition, the disclosure must be included in all advertising for Winston no-additive cigarettes for one year, regardless of whether that advertising contains no additives claim. Reynolds need not include the disclosure, however, if it has scientific evidence demonstrating that its no additives cigarette poses materially lower health risks than other cigarettes.

7.   Freedom of expression

45.  Paragraph 3(e) of ITL's re-amended statement, states:

They violate section[s] 2 of the Charter and cannot be justified under section 1 of the Charter.

46.  The government action, namely the impugned regulations, is not intended to restrict the plaintiffs' freedom of expression:

- Irwin Toy Limited v. A.G. of Quebec, [1989] 1 S.C.R. 927:

Page 976:

With regard to freedom of expression, if the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee.

47.  The effect of the government action is not to restrict the plaintiffs' freedom of expression.

48.  The plaintiffs did not prove that the effect of the government action was to restrict the freedom of expression.

- Irwin Toy Limited v. A.G. of Quebec, [1989] 1 S.C.R. 927:

On page 976:

Even if the government's purpose was not to control or restrict attempts to convey a meaning, the Court must still decide whether the effect of the government action was to restrict the plaintiff's free expression. Here, the burden is on the plaintiff to demonstrate that such an effect occurred. In order so to demonstrate, a plaintiff must state her [sic] claim with reference to the principles and values underlying the freedom.

49.  These values are:

1. The search for truth;
2. Participation in decision-making on interests of a social and political nature;
3. Diversity in the forms of individual self-fulfillment and human flourishing.

50.  The plaintiffs must therefore provide evidence and describe the contents of the message they would like to transmit, but which they are unable due to the regulations and what connection there is with the search for truth, participation within society or individual self-fulfillment and human flourishing of the consumers in their message?

- Irwin Toy Limited v. A.G. of Quebec, [1989] 1 S.C.R. 927

On page 976:

We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They were also discussed by the Court in Ford (at pp. 765-67), and can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.

On page 977:

But the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing.

51.  In other words, and to paraphrase McLachlin J. in RJR-MacDonald v. Attorney General of Canada, [1995] 3 S.C.R. 199, on page 343, the plaintiffs must prove to the Court that due to the effect of the regulations being challenged, the consumer is:

... deprived of an important means of learning about product availability to suit their preferences and to compare brand content with an aim to reducing the risk to their health.

52.  There is no evidence in the file to the effect that the regulations deprive the consumer of some information on the product brand.³⁹

53.  In fact, the regulations increase the quantity of information available to the consumer.

• See the examples of cigarette packages to compare the quantity of information given:
  • Before 1972
  • 1972 to 1989
  • 1989 to 1994
  • 1994 to 2000
  • 2000 and onward

54.  See the excerpts of the testimony by Michel Poirier, President and CEO of the plaintiff JTI-MacDonald Corp., July 21, 2000:

• pages 30 to 35
• pages 45 to 47

55.  The plaintiffs tend rather to want to reduce the quantity of information available to the consumer:

-  Michel Poirier, July 21, 2000
Pages 109 to 130

-  MP-14 (RJR-1389) Vantage Concept Research:
On page 80153 3116:

They [the smokers] were reminded of the alleged negative side of cigarette-smoking by being taken to the idea of cigarette smoke containing, other than tar and nicotine, substances which are identified as harmful by such an authority as the Ministry of Welfare and Health. This was all the more surprising to smokers because tar and nicotine were generally all they knew about the content of cigarette smoke. They were also reminded that they kept taking in 100% of those compounds. The EW proposition was also interpreted negatively in such a way that as much as 50% of those allegedly harmful substance would still have to be inhaled through this filter having such an innovative design.

...

All of the three expressions explored in this project (harmful substances, impurities and problematic compounds) led respondents to become curious about exactly what they might be. Of these, harmful substances induced verbalized negatives most.

...

Of the four concept directions explored (EW, EW/LSS/EVG, LESS/BEST and FILTER STORY), LESS/BEST was found to be most acceptable in consumer terms. The three benefits were presented in a simple, itemized and smoker-friendly manner, with endorsement of the recent consumption tendency toward "less", and without hard scientific notes.

56.  The imposition of a health message does not violate the Charter as long as the plaintiff can, if they want, attribute it to Health Canada:

- RJR-MacDonald v. Attorney General of Canada, [1995] 3 S.C.R. 199:

McLachlin J., on page 349:

The government is clearly justified in requiring the appellants to place warnings on tobacco packaging. For the reasons given with respect to the advertising ban, a lower level of constitutional scrutiny is not justified in deciding whether it was necessary to prohibit the appellants from attributing the message to the government and whether it was necessary to prevent the appellants from placing on their packaging any information other than that allowed by the regulations.

8.   Effectiveness of health messages

57.  The plaintiffs' argument regarding the ineffectiveness of the warnings is based on two erroneous premises:

• That the warnings serve only to reduce the number of smokers and not to inform smokers regarding the damaging effects of smoking;
• That it is possible to isolate the effects of health messages on tobacco consumption although multiple factors influence the behaviours of smokers.

58.  Among the factors that generated fluctuations in the consumption of tobacco during the 90s, there are two that the plaintiffs cannot ignore: sponsorship advertising replaced traditional advertising and smuggling caused the price of cigarettes to drop.

59.  Based on statistics regarding the increase of tobacco consumption among young people as well as a draft report from Dr. William Leiss dated 1995, the appellants state that the government's policy "proved to be a complete failure" and "has not had any positive public benefit." ⁴⁰

60.  Since the intent of the health messages was to inform the public of the dangers of tobacco, it is impossible to seriously state that they have had no "positive public benefit."

61.  The primary objective of the health message was information justified by the importance and gravity of smoking; it is impossible to state that since 1989 the messages have had no "positive public benefit."

62.  Since the rate of tobacco-product consumption has diminished from 30% in the overall population in 1990 to 24% in 2000,⁴¹ it is therefore impossible to state as peremptorily that the health messages have had no "positive public benefit."

63.  The plaintiffs pleaded during the interlocutory injunction that the rate of consumption, during that same period, had gone from 21% to 28% among young people aged 15 to 19. Would this rate have been higher without the health messages? Would this rate have been lower without smuggling? What would this rate of consumption have been if the plaintiffs had not conducted any sponsorship advertising?

64.  Are the plaintiffs ready, now that the rate of consumption among the 15-19 age group has dropped to 25% in 2000, a year in which the new health messages were highly publicized, to admit their effectiveness? Once again, it is impossible to state that the health messages have had no positive effect.

65.  If, however, this suggestion were to be correct, it would not be of any assistance to the plaintiffs since it would further anchor the importance of increasing the impact of health messages.

66.  The plaintiffs are asking that the regulations be declared null by trying to discredit a research report written by Professor John Liefeld dated September 15, 1999, and entitled "The relative importance of the size, content and pictures on cigarette package warning messages."⁴²

67.  The plaintiffs brought forth no evidence on this subject and did not have Mr. Liefeld testify.

68.  The plaintiffs did not establish how the memo produced under EP-14 tainted the Liefeld report.

69.  Subject to what was stated previously, the plaintiffs, Rothmans Benson & Hedges, themselves commented on the previous work of Professor Liefeld in the following terms:

- RF-9 (RBH-3914) - A review of the expert panel report prepared for Health Canada:

Page 10837:

My overall reaction on first reading "When Packages can't Speak" is that it leans to being a typical scholarly, politically correct, piece of work designed to offend no one. The vagueness of conclusions would make it difficult to pin down the EXPERT PANEL on almost any aspect of the report involving a subjective interpretation. The words of the report are couched in such a manner that the EXPERT PANEL could neither be criticized for their work nor held accountable for non delivery of any anticipated results from the introduction of plain/generic packaging for tobacco products.

70.  The conclusions of the Canadian International Trade Tribunal on March 28, 2000, (EP-13) did not invalidate Professor Liefeld's report.

71.  Dr. John Luik, who had wanted to prepare the report, was in a conflict of interest since he had worked closely with the tobacco industry.

Studies by Health Canada

72.  Over the last many years, Health Canada has obtained several studies and reports on the packaging of tobacco products, warnings and the emission of toxic constituents. Here are a few of the titles and excerpts:

- D-142 (FC-20.1) Reducing the Health Consequences of Smoking, 1989, Surgeon General of the United States.

- ED-195 (FC-20.2.) Tobacco Health Warning Messages, Inserts and Toxic Constituent Information Study - Qualitative Study - 1992, by Tandemar:

Page 21:

Conclusions:

° Cigarette packages are an important and desired resource for health information on smoking, with current messages frequently referenced by the majority of smokers.

° Messages are particularly important to young smokers (12-15), who may be less aware of the health risks associated with smoking.

- JF-21 (FC-20.3.) "Youth Smoking Survey, 1994: Technical Report - Qualitative Study - 1994, by Stephens and Morin:

Page 67:

Implications for Education and Message Promotion

The majority of Canadian youth do not believe that one has to smoke many years to affect health, nor do they believe that smokers can quit anytime they want. Further, the majority believe that quitting smoking can reduce health damage. Such beliefs should be continually reinforced.

However, there is still a substantial proportion of Canadian youth smokers who hold beliefs that are counter to the existing medical knowledge concerning health effects and the ease of quitting smoking. More importantly, these beliefs may discourage quit attempts. The health knowledge and belief items indicate several areas in which those who have tried to quit and those who have not may differ. Those who have not attempted to quit recently are more likely to believe that smokers can in fact quit anytime they want and are less likely to believe that quitting smoking reduces health damage.

Page 106:

Implications for Regulation and Legislation

A key component of the Canadian government's tobacco control strategy is to communicate to the public the health hazards of tobacco use. Cigarette pack health warning labels represent this strategy. The present survey supports the notion that these warning labels are an effective tactic, as almost all youth regard them as credible, and many have good recall of the health problems specified in the warning (see Chapter 7).

Page 122:

° There appears to be a positive relationship between the recall of pack warning labels and the recall of health problems for lung cancer, hears problems, strokes, and cancer, as those who have seen these warning labels are more likely to recall the corresponding health problem, relative to those who have not seen such labels.

° Current smokers aged 15-19 do not seem to know the levels of toxins in their cigarettes, as just about half (47%) could not identify at least one ingredient level. Only about one third of current smokers (ages 15-19) want more prominent toxic ingredient information on their cigarette packs.

Page 133:

As outlined in a recent government report, "strong" health messages are required on cigarette packs that are intended to "enhance public awareness of the hazards associated with smoking by ensuring effective communication of pertinent information about tobacco products and their use". Thus, given this objective, warning label "effectiveness" is not so much an issue of attitude or behaviour modification as successful communication of information. There are several components or stages to communication. To be effective, a message has to be noticed, read, understood, believed, seen as personally relevant, and recalled. Thus, warnings will have little impact unless they are seen, believed, personally meaningful, and memorable.

Page 135:

Findings from the YSS suggest that cigarette pack warning labels are a credible source of smoking - related health information, even without attribution of the warning to a source. However, not all health messages are equally effective; the more powerful and personally relevant messages seem to be more memorable. In order to be salient for youth, certain warning messages should be targeted to this age group. The messages should not only be powerful and dramatic, but also be perceived as relevant by this age group. This may be achieved by the use of certain features such as short, blunt wording, as well as the explicit mention of the target group on the label. Labels should also convey the fatal nature of the smoking related diseases by including information about prognosis, time to death, or years of life lost. Moreover, some research has shown that long-term health consequences of smoking are irrelevant to youth and that short-term or immediate health effects (e.g. shortness of breath, coughing, stained teeth) may be more powerful deterrents to smoking onset. Thus, the communication of the short-term effects caused by smoking should be included as additional or alternative messages on warning labels.

- ED-190 (FC-20.4.) When Packages Can't Speak: Possible Impacts of Plain and Generic Packaging of Tobacco - March 1995, from a expert panel (M. E. Goldberg, G. Kindra, J. Lefebvre, J. Leifeld, J. Madill-Marshall, N. Martohardjono, H. Vredenburg).

- ED-184 (FC-20.5.) Perceived Believability Among Adolescents of Health Warning Labels on Cigarette Packs - March 1996, by Cecil and Evans:

Page 503:

With respect to awareness and acceptance of the health risks associated with smoking, two main conclusions have been drawn. First, the majority of adolescents are unaware of the more specific health consequences of smoking (e.g., cancer of the oral cavity), even though they are generally aware that smoking may cause cancer (Dawley, Fleischer, & Dawley, 1985; O'Rourke, O'Byrne, & Wilson-Davis, 1983; Palmer, 1970. Second, compared to adolescents who smoke and intend to smoke in the future, nonsmokers and nonintenders are more likely to be aware of and to accept the general and specific health consequences associated with smoking (Dawley et al., 1985; Murray & Cracknell, 1980; Murray, Swan, Johnson & Bewley, 1983). In response to these findings, academic researchers (Evans et al., 1978; Fishbein, 1977; Murray et al., 1983) and the Federal Trade Commission (FTC, 1981; Waxman, 1985) suggested the need for more specific health warning labels on cigarette packs focusing on the more immediate physiological effects, instead of merely labels with the general admonition that cigarette smoking is dangerous to one's health.

Page 515:

In conclusion, we found high levels of belief in the validity of the health warning labels introduced in 1985. Differences in levels of belief according to smoking status were obtained, although the effect size was small. The development of different labels that are shorter in length, more visible, and include pictorial designs may be more effective than the current warning labels (Beltramini, 1988; CBRC, 1992; USDHHS, 1994). A carefully designed pre-test of possible labels on various target populations, including adolescents, should be the basis for developing more effective labels. Such labels incorporated in school-based smoking prevention programs could, in fact, highlight these warnings on cigarette packs for children and adolescents. On the other hand, as presently employed, the cigarette pack as a medium of dissemination of the health warning labels may be less than efficacious.

- ED-186 (FC-20.6.) Cigarette Packaging Study - The Evaluation of New Messages - Quantitative Study - March 1996, by Tandemar:

Page 13:

Cigarette packaging is considered an important resource for information about health risks associated with smoking. It is a particularly important resource for teens. Virtually all smokers have seen the messages and they are read an average 1.7 times per day.

- ED-178 (FC-20.7.) Public Attitudes Toward Toxic Constituent Labelling on Cigarette Packages - Qualitative Study - April 1996, by Environics:

Page 11:

4.7 General Awareness of Toxic Ingredients in Cigarettes

Virtually all participants mention tar, nicotine, and carbon monoxide as toxins that are in cigarettes. However, beyond that, few are able to name any other chemicals. In some cases, participants actually believe that there are only these three hazardous ingredients in tobacco, although in most cases, participants believe there are other hazards, but do not know exactly what they are.

Page 13:

Despite their mixed reaction to the list of toxins, most expressed the belief that it should be on cigarette packages. Although they felt it would have virtually no effect on current smokers, they felt that the list contained important and new information that people should have. They also felt it could have an effect on young people who have not yet started to smoke. Interestingly, this view was shared by both adults and teens.

- ED-176 (FC-20.8.) Public Attitudes Toward the Listing of Toxic Ingredients on Cigarette Packages: A Survey Report - Quantitative Study - June 1996, by Environics:

Page 4:

2.0 SUMMARY OF RESEARCH FINDINGS

• Although most Canadians (70% of adults and 72% of young people, aged 12 to 17) feel at least somewhat informed about what is in cigarettes, almost three-quarters (73% and 83%) feel there should be more information available about the contents of cigarettes.
• Canadians express almost unanimous support (89% and 91%) for requiring cigarette companies to display a list of toxic constituents on cigarette packages. Most Canadians (88% and 92%) also support the idea of requiring cigarette companies to display an informational statement about the effects of chemical constituents along with this list.
• A majority of Canadians believe a list of toxic constituents along with an informational statement would be at least somewhat effective in the following ways: providing information about the chemicals and toxins in cigarettes (78% and 79%); discouraging young people not currently smoking from starting (73% and 80%); discouraging themselves from smoking (57% and 77%); and discouraging smoking among young people who currently smoke (53% and 55%). Just under half (48% and 45%) think this will be effective in discouraging adults who smoke.

- ED-179 (FC-20.9.) A 3SC Analysis of Specific Control Measures - Report - June 1996, by Environics:

Pages 7-8:

First, we recommend that, if tobacco companies are required to list the toxic constituents of tobacco on product packaging, they should also be required to present this information in ways that meet certain standards of design and format. As we have shown, smokers in general do not put a great deal of importance on aesthetics, but their sensual side does, perhaps, make them more inclined than others to be attracted to materials that stimulate the senses of some way. As such, to attract the attention of smokers at all, it seems clear that information targeted at them must be presented with the "highest production values".

Second, we suggest that information about toxic constituents on cigarette packaging may attract some interest and have some influence if it is bolstered by other communications efforts with tough message that have the power to resonate with smokers. One such message that could be used as a king [sic] of lever to boost smokers' willingness to consider the toxic constituents of tobacco is the message that toxins increase profits for tobacco companies. This message builds on smokers' inherent distrust of private sector motivations and may, in fact, influence smokers to look twice at toxic constituent listings.

- ED-169 (FC-20.10.) Public Attitudes Toward Toxic Constituent and Health Warning Labelling on Cigarette Packaging - Qualitative Study - April 1997, by Environics.

Page 7:

3.2 Toxic Constituents

When those participating in the toxic constituent sessions were asked to name those ingredients in cigarettes that are dangerous, virtually all participants could recall the three ingredients currently listed on the package (i.e. tar, nicotine, and carbon monoxide). When asked if they could name anything else, only a small number could offer any other answers.

- ED-168 (FC-20.11.) Public Attitudes Toward Tobacco Advertising Warning Labels and Tobacco Packaging - Qualitative Study - 1997, by Environics.

Page 13:

Image Is What Matters

Another segment tended to like messages that addressed issues of appearance, and personal image. Among the labels examined "Smoking shortens your breath and decreases your energy level", "Smoking makes your breath smell and your teeth yellow", and "Smoking is a weakness, not a strength" were preferred. This group argued that smokers - particularly young smokers - do not think about their health. They do, however, think about their personal image.

- ED-165 (FC-20.12.) Focus Group Report on Warning Labels for Cigars, Pipe and Chewing Tobacco - Qualitative Study - March 1998, by Environics:

Page 13:

Opinion of Current Warning Labels

Participants were generally not very enthusiastic about the current warning labels and this is very consistent with what we have observed in past research with cigarette smokers. Since the participants are current users of cigars, pipes or chewing tobacco, the warning labels have clearly failed to deter these individuals from their habit. As a result, many comments are made that to the effect that reading a warning label is not going to make anyone suddenly stop smoking or chewing. In any case, as has been pointed out, the warning labels on these products are so inconspicuous, many people have not ever even noticed them. There was also a sentiment that the labels do not tell people anything specific about cigars or pipes and that the general idea that tobacco is unhealthy is something everyone already knows.

- ED-164 (FC-20.13.) Focus Group Report on Warning Labels for Cigars, Pipe and Chewing Tobacco - Qualitative Study - March 1998, by CROP.

Page 12:

[Translation]
Sources of information on the health risks of these products

Generally, the participants indicated there is little information in circulation regarding the health risks of products such as cigars and pipes. When the topic is addressed, there is a strong tendency to deal with the advertising and messages pertaining to cigarettes. The limited size of the market for pipe or cigar smokers may, according to some, explain the situation. According to others, the lack of information on this subject supports the perception that these products are less dangerous than cigarettes. However, various comments indicated that many would like to know more about the composition of cigars. That said, the notices issued in the past regarding the low risk for products consumed occasionally, without inhaling the smoke explains the weak predisposition regarding information on the health risks of these products.

- ED-163 (FC-20.14.) Smokers' Attitudes Towards "Light" and "Mild" Cigarettes - Quantitative Study - April 1998, by Environics:

Page 31:

"Additive-Free" and "100% Natural" Cigarette Labelling

Smokers are divided over the meaning of the phrases "additive-free" and "100% natural tobacco"; while pluralities feel that these statements mean that such cigarettes are just as toxic, large minorities feel that these statements mean that the cigarette are less toxic than other cigarettes.

Smokers were asked, if a cigarette package had a statement on it saying "additive-free", what would this mean to them in terms of how toxic the cigarette in the package would be. Just over four in ten each say that this would mean that the cigarettes are just as toxic (43%) or that this would mean that the cigarettes are less toxic (41%). Two percent say that this would mean that the cigarettes are more toxic, while 14 percent offer no opinion.

...

Smokers were also asked, if a cigarette package had a statements on it saying "100% natural tobacco", what would this mean to them in terms of how toxic the cigarettes in the package would be. About four in ten each say that this would mean that the cigarettes are just as toxic (45%) or that this would mean that the cigarettes are less toxic (38%). Five percent say that this would mean that the cigarettes are more toxic, while 11 percent offer no opinion.

- ED-160 (FC-20.15.) Focus Group Report to Health Canada - OTC - on Attitudes Towards "Light" and "Mild" cigarettes- Qualitative Study - January 1999, by Environics.

Page 3:

Almost all of the participants reported that they began smoking as teenagers - usually around the ages of 12-14. Smoking at that age was appealing because it was often associated with a minor act of rebellion (i.e. stealing cigarettes from the parents, sneaking out to smoke) or out of some desire to fit in with other teenagers. Only a handful of smokers reporter that they started smoking as adults.

- FC-20.16. Messages on Cigarette Package Slides and Flip-Tops- Qualitative Study - February 1999, by Environics.

Page 5:

Virtually all smokers claim that these warning messages will not make them quit smoking. Most do acknowledge that even if these messages will not make them quit, it is still good to get a reminder every now and then of the health risks of smoking. The warning labels may also act as a deterrent to new smokers and perhaps help people who are trying to motive themselves to quit.

There was also a consensus that the warning messages had been the same for so many years that they had stopped noticing them, whereas in the beginning when the warning labels were something new, they had definitely taken notice.

Most smokers have, at some point, read the information about tar, nicotine and carbon monoxide content. Many want more of this kind of information, including longer lists of toxic constituents.

- ED-149 (FC-20.17.) Health Warning Labels and Images on Cigarette Packages - Qualitative Study - March 1999, by Environics.

Page 5:

° Clearly, smokers were open to the idea of new messages and warning labels on cigarette packages. Smokers have typically memorized all of the current warning labels and are not paying much attention to them since they have seen the same messages for so long.

° In all of the groups, participants were extremely positive and impressed with visual images of the cancerous mouth, lungs and brain. The mouth was seen to be the most impressive because the mouth is what we see in a person, whereas the lungs are inside. Many participants said that if these images were on cigarette packages, they would be afraid to let anyone see their packs and they would be more motivated to try to quit.

Page 6:

° Most thought that putting these pictures directly on cigarette packages was a very good idea. Participants thought these pictures would capture a whole new segment of people who are currently ignoring the text warning messages.

Page 7:

° KOZ cigarettes were seen to be a great package and very appealing to young people. The target is clearly young teens (15 and under) and teenage girls in particular, as they have a very "cute2 [sic] look - sleek and portable.

° Most participants in all groups favoured 60 percent of the package being devoted to health information. They felt that this made the messages legible and still left some room for the manufacturer to identify the brand.

Page 9:

4.0 Current Awareness of Warning Labels and Sources of Information

All the participants were aware of the health messages on cigarette packages and could repeat the health messages in detail. Most of the participants however, were bored with the messages and claimed they did not read them anymore. "The messages are a joke" "[Messages] could be better", "I don't notice them anymore". Participants are becoming less influenced by the current health messages and think they can be improved substantially. Some smokers are also superstitious about certain messages ("Mom will only buy the packs with 'smoking harms your baby' on them").

However, while some of the potential quitters in all the age groups mentioned that they thought the current messages could be changed or improved, they still felt it was important to convey health information to the consumer. "I would like to hear more", "I want to hear about the effects", "If we allowed anybody to do what we do to ourselves, we would call it murder", were some of these comments.

...

Most of the adults said they thought the concept of health messages was very important, not necessarily for themselves, but for children contemplating starting smoking. "I never read them, I'm only concerned for the kids". Many of the youth, on the other hand, did not care about the health messages and believed the health risks were implausible.

Page 29:

12.0 Amount Of Space on Cigarette Packages Devoted to Health Information

...

° Most participants in both the French and English groups favoured a greater amount of space being devoted to health messages.

° Most participants favoured 60 percent of the package being covered by health messages, but emphasized the importance of colour images and graphics as a key component and short messages that were new and factual.

° Some of the younger groups (13-16 years old) were not particularly interested in increasing the size of the warning messages, and they claimed they did not read them. However, if the coverage of the packages was to be increased, it was important to use coloured images and pictures to capture their attention.

- ED-148 (FC-20.18.) Attitudes Towards Tobacco Regulations - Quantitative Study - March 1999, by Environics.

- ED-147 (FC-20.19.) Health Warning Design Testing - Qualitative and Quantitative Study - June 1999, by Environics.

Page 6:

Current Message Awareness

° There is a high level of awareness of the current health warnings on cigarette packages. Many participants stated that the warnings had become virtually invisible and no longer had the power to seize their attention. Smokers and non-smokers alike said that the average smoker had become desensitized to these warnings.

° In general, those designs that emphasized the use of text were seen as less effective than those where the picture could deliver the message. The majority of smokers fall into the lower income and education groups, where functional illiteracy tends to be higher than among other socio-economic groups. Clear visuals, where the picture actually does say a thousand words, will have the greatest "across the board" impact on the smoking population.

° When participants were asked about the size of the warning, there was overall agreement that 60 percent of the package was an acceptable size for the health warning labels. It was also felt that there would be enough remaining room on the package for brand trademarks, text and other visual product identifiers.

Reactions to Individual Designs

° The saying "a picture says a thousand words" is applicable to the effectiveness of the tobacco warnings tested during this focus group exercise. The warnings that generated the highest level of positive interest tend to be the ones that rely on a visual, rather than a textual, approach.

- ED-143 (FC-20.20.) The Relative Importance of the Size, Content & Pictures On Cigarette Package Warning Messages - Conjoint Analysis - September 1999, by Dr. Liefeld:

Page iii:

8. For 95% of smokers and 80% of non-smokers, the time taken to correctly recognize their "regular brand" on store shelves, will not likely be affected by increasing the size of warning messages to 60% of the principal display surface of cigarette packages. For only 5% of smokers will increasing the size of warning messages from 35% to 60% of the principal display surface of cigarette packages, initially increase the error rate of recognizing their "regular brand". But this effect will likely disappear with learning.

- ED-146 (FC-20.21.) Effects of Increasing the Area Occupied by Health Warnings on Cigarette Packages - Quantitative Study - September 1999, by Créatec +:

Page 27:

In other words, an increase in the warning area has significant effects on all of the criteria used except for attractiveness of the package, and these effects begin with the first increase (to 40% on the package area, from 30%). These effects are even more significant when the area is increased from its current 30% to 50% or 60%.

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3.4 Conclusions

• All of the results point to the conclusion that simply increasing the warning area on cigarette packages to 40% from the current 30% causes two major changes in the perceptions of members of the four target groups:
  • it makes them see the warnings as more likely to discourage smoking among people in general, as well as among specific social types;
  • it increases the perceived credibility of the warning messages.
• Increasing the warning area to 40% from 30% has two other effects that are significant, but that at first glance appear more moderate if we consider only the broader categories to which they apply - smoker image and product image. However, on closer inspection, we see that this increase in warning area has substantially larger effects on certain perceptions that are crucial in the war against tobacco. Specifically, the larger warning area:
  • increases the perceived dangerousness of tobacco;
  • reduces the perceived intelligence, healthiness, and physical attractiveness of smokers.
• To achieve a negative impact on general attractiveness of cigarette packages, the warning area must be increased to at least 50%, because at 40%, the effects are too limited to be significant.
• When the area occupied by warnings is increased to 50% from the current 30%, the effects observed at 40% are amplified, and all categories of effects become significant.
• When the warning area is increased to 60% from 50%, the effects continue to increase, but the general attractiveness of the package is the main variable affected.

- ED-145 (FC-20.22.) Legibility and Visual Effectiveness of Some Proposed and Current Health Warnings on Cigarette Packages - Quantitative Study - September 1999, by Nilsson:

Page 1:

SUMMARY

At the Health Canada - UPEI Legibility Testing Laboratory, seven new designs for warnings on cigarette packages were tested along with two designs presently in use. Legibility was measured in terms of the maximal distance at which the warnings could be read. Visual effectiveness was measured using a rating scale. The new designs included pictures as well as words. Three sizes were evaluated. The results based on over 7,000 observations made by 14 persons with normal acuity and normal colour vision had a reliability of 98% for legibility and 97% for effectiveness. The best new designs were about 2 times as legible and 3.5 times as effective as those in present use. Size of the printed words was the principle factor determining legibility. Doubling the size of the letters more than doubled the legibility. Warnings with bigger pictures were more effective than those with smaller pictures. Warnings with colour pictures were more effective than those with black and white pictures. Some other implications of the data for the design of warnings are discussed. Establishment of a comparative standard to ensure legibility of warnings is recommended.

- ED-144 (FC-20.23.) Canadian Adult and Youth Opinions on the Sizing of Health Warning Messages - Quantitative Study - October 1999, by Environics:

Page 6:

° Large majorities of Canadians of all ages, both smokers and non-smokers, agree that current health warning messages on cigarette packages provide important information for smokers to be reminded of and are worth re-reading. However, majorities also feel that the messages are worn-out and have lost their effectiveness; this sentiment is particularly strong among smokers.

...

IMPROVING HEALTH WARNING MESSAGES

° Adults, both smokers and non-smokers, are most likely to suggest the use of pictures in health warning messages as a way to make them more effective. Young Canadians, both smokers and non-smokers, tend to advocate more detailed information as well as the use of pictures.

- ED-142 (FC-20.24.) Tobacco Labelling and Packaging Strategies - October 1999, by Focus Strategies and Communications Inc. (Fassbender, HP):

Page 3:

It is my considered opinion, that based on the existing strength of all the current cigarette brands in the market, a warning message that takes up to 60% of the package will have no significant detrimental effect on current brand recognition by smokers. All of the research that I have seen conducted by Health Canada and other agencies, such as the Cancer Society confirms that existing smokers recognize most cigarette brands by their colour alone, not only the brand name. If you accept this premise, then each package does not need a significant amount of space for the brand identity in order to be recognized.

I would also like to add that up to now, it has never been the practice of the tobacco industry to use the package itself to communicate any product attributes. Other than a simple positioning line or benefit statement, the package has solely been the brand identity not a positioning or advertising vehicle. Examples of the benefit statements used might be such lines as, "Light and Mild", "Smooth Flavour", etc. I do not believe that these would be impaired by a smaller space as they have no direct relationship to consumer choices at the point of purchase.

- ED-140 (FC-20.25.) Tobacco Warning Labels and Packaging: Issues, Prospects and Strategies - December 1999, by CMRDI (Kindra, GS):

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In the overwhelming consensus of current studies 25 [sic], marketing research has found that, as compared to word-only communications, the inclusion of pictorial stimuli in marketing communications increase [sic] levels of recall for messages, (Leong, Ang, Tham, 1996; Miniard et al., 1991; Mitchell, 1986; Childers and Houston, 1984; Gardner, 1986; Kieras, 1978; Kisielius, 1982; Lutz and Lutz, 1977; Nelson, 1979, Holbrook, 1981; Unnava et al., 1991; Costley and Brucks, 1992): there seems to be truth in the saying, "a picture is worth a thousand words."

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Another reason for including not only text, but also pictorial stimuli would be for the purpose of reaching consumers who have difficulty with text comprehension. If clear pictorial stimuli were included, these consumers would be able to more clearly understand the HWMs 26.

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Colour is also related to the message vividness. Vividness is a measure of how much the message 'jumps out' at the consumer. This includes how bright, noticeable and eye-catching the message is. Research generally shows that the HWM should be as vivid as possible, (Keller and Block, 1997), which includes large size and brilliant colours, since vivid information tends to have higher levels of information processing associated with it, (Keller and Block, 1997, Shapiro, MacInnis and Heckler, 1997; Vakratsas and Ambler, 1999)30. Since smokers are low level processors, generally, stimuli that generate higher levels of processing are advantageous in terms of readership, recognition, recall, and by extension, impact on choice.

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9. Colour should be used in the words and the message, Gronhaug, Kvitastein, Gronmo, 1991; Finn, 1988; Geboy, 1996; Meyers-Levy and Peracchio, 1995), but it must be tested whether highlighting or full colour is more appropriate, for both word and pictorial stimuli in the HWMs. Words should be black on a white background, or black letters on a fluorescent background would also be very legible. If pictorials are used, they should be bright and eye-catching, which is known as "vividness".

10. HWMs should be as vivid as possible, (Keller and Block, 1997, Shapiro, MacInnis and Heckler, 1997; Vakratsas and Ambler, 1999). Fluorescent backgrounds (black ink) and colourful pictorials are recommended. Some research has suggested a zig zag border, rather than a straight border. Messages should also be relatively distinctive, as discussed in conclusion 8, above (Centre for Behavioural Research, 1992).

11. The tobacco industry's ability to communicate their brand information is not significantly impaired because the non-dominant attribute still is processed, irrespective of the size of the focal attributes, Coupey, Irwin and Payne, 1998; Brown, 1993 (t.v. advertisements); Heath et al, 1994; Janiszewski, 1990). This is even more true because the industry can still use graphics, logos, brand names, borders, colours, and font types and sizes to communicate their uniquenesses, (Environics, 1999).

- ED-141 (FC-20.26.) Literature Search on the use of "borders" as part of a messaging system - December 1999, by Tilson Consulting.

- ED-134 (FC-20.27.) Business Impact Test Consultation Report: Tobacco Products Information & Reporting Regulations - March 2000, by Consulting and Audit Canada.

- ED-131 (FC-20.28.) Business Impact Assessment: Proposed Tobacco Products Information - April 2000, by Blair Consulting.

- ED-130 (FC-20.29.) Literature Search on the use of "pictograms" and "pictures" as part of a messaging system - April 2000, by Tilson Consulting.

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Pictures/Pictograms

. Representational pictographs (more detailed, realistic) are preferred over abstract symbols.

. Pictorials can enhance warnings by serving to enhance noticeability. The primary requirement of an effective warning is that it be noticed.

. Incorporating novelty features into the warning design can serve as a powerful reinforcement of the warning message. Pictorials are one such means of strengthening the impact of the message.

. Pictorials can convey consequence information and instructions.

. The addition of pictographs to warnings improves compliance.

. Warnings containing a pictorial or icon generate significantly faster response time than warnings without them.

. Recognition and recall of pictures is superior to that of words.

. Pictographs that include a limited amount of text are better understood than those with no accompanying verbal information.

. The use of pictorials and pictographs along with text may enhance understanding among those with poor reading skills or whose first language is not English.

. Using graphics with text to convey health information improves comprehension and recall.

. There is some evidence that using graphics that arouse fear is more effective in encouraging compliance with the warning message.

- ED-126 (FC-20.30.) Consumer Response to Health Messages on Inserts and on Package Slides - Quantitative Study - May 2000, by Environics:

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Overall, the survey finds that recall and notice of the insert messages is higher than that for flip/slide messages. While both formats are seen, by a majority of smokers, as effective in providing information to smokers, flip/slide messages are rated more highly than insert messages on a number of dimensions.

- ED-123 (FC-20.31.) Testing New Health Warning Messages for Cigarette Packages: A Summary of Three Phases of Focus Group Research - Quantitative Study - May 2000, by Environics:

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Most participants felt that the new larger health warning messages, featuring colour photographs, were a definite improvement over the current warning messages. Teenagers were particularly impressed with the use of pictures and the larger size of the messages that allow for the dissemination of more information. Most participants were moved by the dramatic and scary pictures and messages, such as the woman smoking through a hole in her throat, the sick baby, the cemetery with grieving loved ones, and warnings that depicted the physical and health consequences of smoking, such as the diseased mouth. The consensus was that the approach taken was good and was an improvement over the status quo.

Some participants were sceptical as to how much of a difference such messages would make in reducing the smoking rate. However, most participants felt that the messages showed valuable information and that they could have an impact on certain populations, such as pregnant women smokers, teens thinking of starting to smoke, those thinking of quitting and other groups of smokers.

- ED-132 (FC-20.32.) An investigation of Health Warning Labels for Tobacco Packaging - May 2000, by Graphic Art Technical Foundation (GATF).

- ED-125 (FC-20.33.) Health Warning Messages on the Flip-Slide and Inserts of Cigarette Packaging. - May 2000, by Environics.

- ED-127 (FC-20.34.) Benefit Cost Analysis of Proposed Tobacco Products Information & Regulations - June 2000, by Hara Associates.

- ED-133 (FC-20.55.) Revalidation Study, Créatec +, March 2000:

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3.3 Conclusions

[Translation]

• All the results obtained converge to conclude that the amended notices do not change the conclusions of the August 1999 study regarding the effects of an increased area. In fact, overall, it can be generally concluded that the effects, at worst, would have been the same. A very close analysis, by criteria, indicates that for two aspects only, the effects would have indeed been amplified.
• Beyond that validation, this study demonstrates once again that an area increased to 50% is translated into significant effects on all the surveyed criteria.

- ED-129 (FC-20.56.) Revalidation Study, Dr. John P. Liefeld, University of Guelph, April 14, 2000.

- ED-124 (FC-20.57.) Revalidation Study, Environics, May 2000.

- ED-128 (FC-20.58.) Commentary on the Proposed New Tobacco Products Labelling Requirements, Katherine Covel, Ph.D., April 21, 2000.

Plaintiffs position

73.  The plaintiffs did not present any studies, expert testimony or evidence allowing the court to question all of the data obtained by Health Canada.

74.  Dr. Roderick Power, the plaintiffs' expert, himself refuted the theory put forth by the lawyers of the tobacco manufacturers who argued that the health messages have no effect.

75.  Not only did he concede in his report and during his testimony that the new Canadian health messages "might have a very little effect" on consumption (which he can not however quantify), he admits that the Canadian population in general is not aware of certain risks mentioned in the warnings and concluded that he was in favour of providing people with information such as that appearing in Canadian health messages:

"I am all for people having information."

Power, Volume 18, March 5, 2002, p. 43.

Power, Expert witness statement of Roderick Power, p.9.

76.  When we know that one in two smokers will die from an illness caused by tobacco, even if we accept Dr. Power's hypothesis of a "very small reduction" in the level of consumption, such a reduction cannot be called insignificant. These remarks coincide with those of McLachlin J. who wrote in the 1995 RJR-MacDonald judgement, in para. 146:

While the limited objective of reducing tobacco-associated health risks by reducing advertising-related consumption and providing warnings of dangers is less significant than the broad objective of protecting Canadians generally from the risks associated with tobacco use, it nevertheless constitutes an objective of sufficient importance to justify overriding the right of free expression guaranteed by the Charter. 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.

77.  Evidence has revealed however that the plaintiffs do not inform their consumers of the toxic effects of smoking on health.

Lord Woolf MR:

55. It may be correct that the reduction in consumption would be "fairly small" from the ban as the Tobacco Companies submit. However, even a small reduction which reduces the incidence of cancer even to a marginal degree is difficult to describe as a matter of insignificance.

Lord Justice Ward, para. 69:

(a) ... As Pfizer made clear, uncertainty as to the existence or extent of the risks to human health should not preclude taking of protective measures. They prevail over economic considerations

(b) In any view of the evidence, which is vast and incapable of final adjudication in an interim application, there must be a real risk that someone or more persons may be seduced by advertising to start smoking, to become irretrievably addicted to it and as a result to suffer injury and even untimely death. Saving even one person from that harm is a legitimate endeavour for the Government.

Imperial Tobacco Ltd. v. Secretary of State for Health, [2000] 1 ALL, E.R. 527 (Court of Appeal).

78.  Evidence has revealed however that the plaintiffs do not inform their consumers of the toxic effects of smoking on health.

79.  The plaintiffs provide no information to their consumers regarding the toxic effects of smoking on health, even though the Tobacco Act allows them to do so, and in addition it does not discharge them of their obligations to smokers.

S. 16. This Part does not affect any obligation of a manufacturer or retailer at law or under an Act of Parliament or of a provincial legislature to warn consumers of the health hazards and health effects arising from the use of tobacco products or from their emissions.

80.  According to Mr. Ricard of ITL, smoking is an "adult informed choice." However, what characterizes his clientele who start using his products is the fact they are for the most part "minors" and "less educated" people, as was stated by the Supreme Court in 1995:

Perhaps the most distressing aspect of the evidence introduced at trial is that tobacco consumption is most widespread among the young and the less educated -- those segments of the population who are least able to inform themselves about, and to protect themselves from, its hazards. The majority of Canadian tobacco smokers start smoking regularly in their teens, and approximately one in five begin smoking regularly as early as 13; see expert report of Dr. Roberta G. Ferrence, supra; "Project Plus/Minus," prepared for Imperial Tobacco Ltd. (1982).

(...) Moreover there are more smokers among people with less formal education. While, in 1986, 60 percent of those with no high school education smoked on a daily basis, only 8 percent of those with a university degree did so; see expert report of Dr. Roberta G. Ferrence, supra, at p. 32.

RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, para. 66.

81.  The situation has not changed since 1995, as confirmed by Judy Ferguson, who stated that the some 300,000 children and adolescents who start smoking every year present an average age of 14½ to 15.

Ferguson, volume 35, Q25, p. 7122.

82.  This situation is not new to the plaintiffs who have several documents that report on smoking among children, some of whom start at the age of 10.

D-171 Marketing Research debrief - An investigation of the factors contribution [sic] to the growth of DuMaurier.

83.  Mr. Swain confirmed that there still exists a connection between the prevalence of smoking and education.

D-245 Swain, "Smoking Prevalence in Canada, 1985-1999," p. 5.

84.  The fact that the warnings are accompanied by photographs will make it possible to inform a clientele for whom the warnings could be missed, such as young people whose language level does not allow them to sufficiently understand the health messages, the illiterate and foreign nationals who do not understand either official language.

C.   Conclusions

85.  As was pointed out in 1968 by the United States Court of Appeal in Banzhaf v. Federal Communications Communication, 405 F. 2d 1082:

Pages 1098 et seq.:

In these circumstances, the Commission could reasonably determine that news broadcasts, private and governmental educational programs, the information provided by other media, and the prescribed warnings on each cigarette pack, inadequately inform the public of the extent to which its life and health are most probably in jeopardy. The mere fact that information is available, or even that it is actually heard or read, does not mean that it is effectively understood. A man who hears a hundred "yeses" for each "no," when the actual odds lie heavily the other way, cannot be realistically deemed adequately informed. Moreover, since cigarette smoking is psychologically addicting, the confirmed smoker is likely to be relatively unreceptive to information about its dangers; his hearing is dulled by his appetite. And since it is so much harder to stop than not to start, it is crucial that an accurate picture be communicated to those who have not yet begun.

Thus, as a public health measure addressed to a unique danger authenticated by official and congressional action, the cigarette ruling is not invalid on account of its unusual particularity. It is in fact the product singled out for special treatment which justifies the action taken. In view of the potentially grave consequences of a decision to continue - or above all to start - smoking, we think it was not an abuse of discretion for the Commission to attempt to insure not only that the negative view be heard, but that it be heard repeatedly.

86.  The Tobacco Products Information Regulations is not ultra vires, does not constitute an expropriation and contributes to the objectives of the Tobacco Act.

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