In Goldilocks and the Three Bears, Goldilocks encounters a series of beds. One is too soft. One is too hard. Only the third is just right. In some respects, the regulation of tobacco product advertising in Canada has mirrored Goldilocks' experiences and Bill S-5 may be the next chapter in the regulation story. It is a Bill of the Senate of Canada intended to amend the Tobacco Act in order for the Tobacco Act to regulate, in addition to cigarettes and other tobacco products, the manufacture, sale, labelling and promotion of vaping products.
The government has acknowledged that vaping products are less harmful than traditional cigarettes and can play an important role in the government's objective of achieving harm reduction. Given that acknowledgement, Bill S-5 contains a curious provision prohibiting "comparative promotion" of less hazardous products that conveys to the public that the products are less hazardous than say cigarettes. If Bill S-5 is adopted as is, and the curious provision becomes law, its constitutional validity may be questioned for being an unreasonable restriction on the freedom of expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms.
The "Comparative Prohibition" may also contravene section 7 of the Charter which prohibits laws that are arbitrary, overbroad or grossly disproportionate in their effect on health. As a result, one would expect a constitutional challenge to Bill S-5 and, perhaps, another decision of the Supreme Court of Canada ("SCC") on tobacco legislation.
Industry Codes: Bed is too soft
There has been advertising of tobacco products in Canada for more than 100 years. Until the 1960s, such advertising was subject only to the same rules applicable to all other product advertising. From 1964 to 1988, tobacco product advertising was also subject to Industry Advertising Codes. These codes became more restrictive over time as they were reviewed and negotiated with the federal government. The government's position was if its desired changes to the codes were not adopted voluntarily, then the government would impose the changes through legislation. In the late 1980s the federal government decided that voluntary restrictions on tobacco product advertising were insufficient or too soft and what was needed was legislative restrictions.
TPCA: Bed is too hard
In 1988, the federal government enacted the Tobacco Products Control Act ("TPCA") which, among other things, prohibited all forms of tobacco product advertising
. Tobacco manufacturers challenged the constitutional validity of the TPCA on the basis, among others, that the ban contravened section 2(b) of the Charter (the freedom of expression).
After six years of litigation, the SCC struck down the total advertising ban for violating the Charter. The Court concluded that commercial expression, even tobacco advertising, was protected by the Charter and that the TPCA's total ban was unconstitutional because it was not a reasonable restriction on the freedom of expression. The Court held that a total ban went too far or, continuing the three bears analogy, was too hard. While provisions prohibiting lifestyle advertising or advertising to youth would be justifiable, the Court held that a total ban on advertising to adults was not. The Court essentially saw no legal justification for prohibiting purely informational advertising to adults that one product is less harmful than another.
Tobacco Act: Bed is just right
Within two years of the SCC's decision on the TPCA, the federal government enacted the Tobacco Act which purported to follow the direction provided by the SCC. The Tobacco Act specifically permitted information advertising and brand preference advertising as long as it was restricted to adult venues and publications. Even for such permitted advertising, the Tobacco Act prohibited lifestyle advertising and advertising appealing to young persons.
On its face, the Tobacco Act permitted advertising to the effect that one tobacco product is less harmful than another. Tobacco manufacturers alleged, however, that the prohibitions on lifestyle advertising and advertising appealing to young persons were so broadly worded that, when coupled with the severe penalties for violating the Tobacco Act, they effectively re-imposed a total ban on advertising. After eight years of litigation, the SCC held that the Tobacco Act again contravened the freedom of expression, only this time in a reasonable way or in a way that was 'just right'. The Court held that the lifestyle and youth prohibitions should be interpreted in a way that did not preclude information or brand preference advertising as long as that advertising was in permitted places and, as also prohibited by the Tobacco Act, not false, misleading or deceptive or likely to create an erroneous impression about the characteristics, health effects or health hazards of the tobacco product or its emissions.
After the SCC's decision on the Tobacco Act, limited permitted tobacco product advertising resumed.
Bill S-5: Too hard again
Bill S-5 proposes many provisions pertaining to the regulation of tobacco and vaping products. This note deals only with the "Comparative Prohibition". It is described herein as 'curious' because, as noted above, the government has recognized that vaping products are less hazardous than cigarettes and can play an important role in harm reduction. In addition, some tobacco control advocates maintain that vaping products have already led to a decrease in the incidence of cigarette smoking, while others recognize that there may be a spectrum of new products less hazardous than cigarettes and that cigarette smokers should be educated and encouraged to choose less harmful alternatives. If newer products are less hazardous than traditional cigarettes, then one might assume that the federal government would be in favour of cigarette smokers' switching to a less harmful alternative. Prohibiting manufacturers from informing smokers that these newer products are less hazardous, however, would likely lead to less smokers making the switch. It is the inclusion of the "Comparative Prohibition", in addition to other clauses, which may make Bill S-5 "too hard" and violate the Charter.
Bill S-5 was recently considered by a Senate Committee which proposed a change to the "Comparative Prohibition".
If Bill S-5 is adopted as is, there will likely be another challenge to a restriction on tobacco product advertising. The courts will again have to assess whether the restriction infringes the Charter and, if so, then the onus will be on the government to justify the restriction as a reasonable one. The government recognizes that the validity of Bill S-5 may well depend on whether a court finds that its limits on constitutionally protected freedoms are appropriate given the reduced risks of vaping (and presumably other new) products. In addition, in assessing the validity of the "Comparative Prohibition" in particular, a court will have to consider that, to comply with the Tobacco Act, advertising that one product is less hazardous than another can take place only if:
- the advertising is not only true but also not misleading or deceptive or […] likely to create an erroneous impression about the health effects or health hazards of the tobacco product; and
- the advertising occurs in permitted adult communications or venues.
A court may also have to consider whether prohibiting "comparative promotion" jeopardizes smokers' health and thus violates section 7 of the Charter. In a 2011 case, the SCC held that section 7 was violated by a decision to deny drug users access to information and services that would lessen the impact of their drug use. The Court noted that the objective of the applicable legislation was to protect health and that, based on the evidence, the decision to effectively ban the services and information would have the opposite effect. This same reasoning may well apply to the inclusion of the "Comparative Prohibition" in Bill S-5, which would deny smokers information regarding less hazardous products.
This article was written Steven Sofer, a partner at Gowling WLG with assistance from Oliver Fitzgerald. The views expressed herein are solely those of Steven and not Gowling WLG.
 Tobacco Act, SC 1997, c 13 [Tobacco Act].
 Canada, Health Canada, "Government of Canada Introduces New Tobacco and Vaping Products Legislation", (Ottawa: 22 November 2016) ["Government Introduces New Vaping Products Legislation"]. The government has also recognized industry reports that new tobacco products (which are heated) are less harmful than traditional cigarettes. See "Seizing the Opportunity: The Future of Tobacco Control in Canada" (Health Canada, 2016) at page 2 ["Seizing the Opportunity"].
 Seizing the Opportunity, supra not 3 at page 11.
 Bill S-5 supra note 1 at s 37 which originally would have added to the Tobacco Act section 30.43(2) which provides: No person shall promote a vaping product, including by means of the packaging, by comparing the health effects arising from the use of the product or from its emissions with those arising from the use of a tobacco product or from its emissions; and at s 20 which would add the following section 20.1: No person shall promote a tobacco product, including by means of the packaging, (a) in a manner that could cause a person to believe that the product or its emissions are less harmful than other tobacco products or their emissions." (collectively the "Comparative Prohibition").
 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 2 (b) ["Charter"]. Section 2 (b) provides that "Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."
 Section 7 of the Charter supra note 6 provides that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
 See for example: RJR -- MacDonald Inc v Canada (Attorney General),  1 SCR 311, 111 DLR (4th) 385; RJR-MacDonald Inc v Canada (Attorney General),  3 SCR 199, 127 DLR (4th) 1 [RJR-MacDonald 1995]; Canada (Attorney General) v JTI-Macdonald Corp, 2007 SCC 30,  2 SCR 610 [cited to SCR] [JTI-Macdonald].
 See discussion in Letourneau v JTI-Macdonald, 2015 QCCS 2382, 20 CCLT (4th) 1, 2015 CarswellQue 11413 at paras 393-403.
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Ibid at para 401.
 Tobacco Products Control Act, SC 1988, c 20.
 Ibid at s 4, which provided "No person shall advertise any tobacco product offered for sale in Canada."
 RJR MacDonald 1995 supra note 8.
 Ibid at 282-283, 348.
 Five members of the Court found the total ban was unconstitutional. Four members found it to be a reasonable restriction.
 RJR MacDonald supra note 8.
 Ibid at 343.
 Tobacco Act supra note 2.
 Tobacco Act supra note 2 at s 22 (2) and (4).
 Ibid at s 22 (2) (a) and (c).
 Ibid at s 22 (3).
 Ibid at s 22(2) and (4).
 JTI-Macdonald supra note 8.
 Ibid at 663.
 Tobacco Act supra note 2 at s 20; JTI-Macdonald supra note 8 at 640.
 See discussion in E-Cigarette Update: Bill S-5: Smoking and Health Action Foundation/Non-Smokers' Rights Association – February 2017
 Supra note 3 and 4.
 Canadian Constitution Foundation, Report, "Vaping and the Law: Comparing legislation across Canada" (February 2017), online: <www.theccf.ca>.
 Supra note 28 at page 5.
 The Senate Committee amended the Comparative Prohibition as it applies to vaping products, but not tobacco products, to permit comparative promotion that complies with the regulations to the Tobacco Act which have not yet been created. (In addition, as originally proposed, Bill S-5 would also permit comparative promotion for a vaping product, but not a tobacco product, that is "subject of an authorization … issued under the Food and Drugs Act authorizing its sale").
 Standing Senate Committee on Social Affairs, Science and Technology – April 12, 2017.
 Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44,  3 SCR 134 at paras 91, 148.
Ibid at paras 93, 110, 133 and 152.