Regulating the marketing of tobacco products and controlling smoking in Canada
Robert G Wyckham
The past two decades have seen an escalating struggle among the tobacco industry, the government, and antismoking organizations in Canada. Increasingly, the marketing and the consumption of tobacco products have been constrained. After the passage of the Tobacco Products Control Act and the Non-smokers’ Health Act in 1988, Canada was said to have among the world’s strongest tobacco promotion and smoking regulations. Now that key provisions of the Tobacco Products Control Act have been struck down by the Supreme Court of Canada and new legislation has been introduced in Parliament, it seems appropriate to examine the history of the regulation of tobacco products marketing and the control of smoking in this county. This paper provides a snapshot of tobacco sales since the 1960s and outlines the chronology of past attempts to govern the marketing of cigarettes and to constrain smoking. Based on this experience it is recommended that a new organizational approach be examined. A quasi-crown corporation staffed by experts in consumer package goods marketing is suggested as a way to counter the sophisticated tactics and strategies of the tobacco industry.
In many important tobacco markets, there is a current running in favour of more stringent control of the advertising and promotion of cigarettes. The Canadian government banned all tobacco advertising and restricted sponsorships in 1988. Having now lost key sections of that legislation in the courts, the government recently introduced a new tobacco control law to Parliament. In the United States, the Federal Drug Administration has released new restrictions on the marketing of tobacco products. Some American states are considering legislation to disallow tobacco advertising as an expense for tax purposes. France has legislation designed to prohibit tobacco advertising in all media. Iceland, Finland, Norway, and Portugal have banned the advertising of tobacco products. Similar bans were introduced in nine Eastern European countries, but have since been repealed (Toxic Substances Board, 1989, p. xxxiii). Sweden, Singapore, and Italy have legislated bans. The European Parliament, which has legislated an interdiction on tobacco advertising on television, is tightening up the regulation of cigarette advertising on other media. New Zealand, Australia, and Thailand have passed legislation that bans tobacco advertising, requires health warnings on packages, and increases tobacco taxes. Japan and South Africa are said to be considering the elimination of cigarette advertising.
Typically, new conclusions from research by health authorities or the response of anti-smoking lobby groups to cigarette advertising initiatives revives the seemingly dormant movement to curtail cigarette marketing. In the United States, the Environmental Protection Agency (EPA) pronouncement that second-hand tobacco smoke can cause cancer created a stir. Joe Camel’s antics have raised the ire of antismoking lobbyists and health authorities. The Uptown campaign aimed at African Americans resulted in a storm of protest. In Canada, during the time that the legislation banning tobacco advertising was under appeal, the tobacco companies infuriated the health lobby by placing discount stickers over the health warnings on cigarette packages and using promotional messages inside packages to attract customer responses through 1-800 numbers.
Since the late 1970s there has been a growing conflict between anti-tobacco advocates and the tobacco industry, with the federal government (and provincial and local governments) being buffeted by both parties as it attempted to find legislative solutions. This article examines the history of the regulation of the marketing of tobacco products and the control of smoking with a view to recommending an alternative organizational arrangement for the demarketing of tobacco products and smoking in Canada.
The Historical Context
Canadian cigarette consumption. Sales of cigarettes and cigarette tobacco (used for roll-your-own cigarettes) increased until 1982 when they began to fall precipitously (see Figure 1).
The 1960s saw a 23% increase in cigarette sales, from 44 billion to 54 billion cigarettes. During the 1970s, cigarette sales continued their climb reaching 69 billion cigarettes, a 21% growth. They peaked in 1982 at almost 72 billion and fell to about 58 billion by 1989, a decline of 20% from the summit. By 1993, sales had dropped to an estimated 51 billion. It has been suggested that the increase to 56 billion in 1994 was related to the aggressive cutting of tobacco taxes designed to deter smuggling, increased demand for legal (noncontraband) cigarettes, manufacturers filling empty channels of distribution, and more young people smoking.
Sales of cigarettes per capita per year to persons 15 years and older (a simple calculation of total cigarette sales divided by the number of people in the population 15 years and older) ranged from 3,742 to 4,045 during the 1960s, with the median at about 3,930. In the 1970s there was a slight decline to a range of 3,681 to 3,869 and a median of about 3,806. In the 1980s, sales per capita per year dropped to a range of 2,661 to 3,689 and a median of about 3,290 cigarettes per capita per year. Sales per capita per year continued to decline in the early 1990s, reaching 2,257 by 1993, down 44% from the peak in 1966.
According to a Health and Welfare study, 29% of Canadians over 15 years old were smokers in 1990; this is down 30 percentage points since 1965. More men than women were smokers; people with less education and lower incomes who worked blue collar jobs were more likely to be smokers (Canada, Department of Health and Welfare, 1993, pp. 92-93).
Twenty-four percent of Canadian teenagers aged 15 to 19 smoke; 13% of youngsters aged 13 to 14 years are current smokers; and 3% of children aged 10 to 12 are smokers. The prevalence of smoking among those aged 15 to 19 years declined from 43% in 1981 to 23% in 1991. The health community suspects that youth smoking has risen appreciably in recent years, although government data indicate that the percentage has not changed (Health Canada, 1996).
Even though in the 1990s smoking is far less prevalent than in previous decades, legislative interest has remained high. This is, no doubt, related to the estimates of over 40,000 Canadians dying each year as a result of smoking related causes and the approximately $11 billion annual health costs, fire damage, worker absenteeism and lower productivity attributed to smoking (Peto, Lopez, Boreham, Than, & Heath, 1994, p. 61).
The health sciences and smoking dangers. In March 1857, The Lancet, an English medical journal, published an indictment of the health effects of tobacco (Fritschler, 1989, p. 9). However, the extent of potential health dangers from smoking was not widely known among the general public in the early years of this century. In the 1920s, as cigarettes became the most popular form of smoking, reports connecting smoking to cancer began to surface. It was not until the release in the United States in 1953 of the Sloan-Kettering report linking tar in tobacco smoke to cancer in rats that concern resounded around the world. Early in the 1960s, research indicated that the incidence of coronary disease, strokes, and lung cancer were substantially higher among smokers. In the United Kingdom, the 1962 report of the Royal College of Physicians concluded that there was a great deal of evidence that cigarette smoke is an important cause of lung cancer (Taylor, 1984, p. 3). The Minister of Health made a statement in the Canadian House of Commons in June 1963 linking smoking and cancer (Canada, Parliament, House of Commons, 1963, pp. 1213-1214). The 1964 Report of the U.S. Surgeon General concluded that smoking is a cause of cancer in men (U.S., Public Health Service, 1964). Shortly thereafter, the American Medical Association called for the banning of cigarette advertising.
For the first time, in 1971, the World Health Organization adopted a resolution calling on governments to act against smoking as an avoidable cause of death and disease (Canada, Library of Parliament, 1995). The 1972 U.S. Surgeon General’s report concluded that second hand smoke was a health hazard. In 1981, the Surgeon General’s report said that even low tar and nicotine cigarettes were unsafe. The 1982 report called smoking “the chief preventable cause of death in our society” (Fritschler, 1989, pp. 114-115). The Canadian media gave prominent coverage to these reports.
External influences. In addition to the dissemination of scientific data, a number of other external factors played a role in making Canadians aware of the dangers of smoking. The health warning, “Caution: cigarette smoking may be hazardous to your health” (and its subsequent stronger versions) required by the U.S. Cigarette Labeling and Advertising Act (1965), and the prohibition of cigarette advertising on television in the United Kingdom in 1965 were publicized by the news media. Antismoking commercials on American television, part of the Fairness Doctrine, were seen in Canadian homes in the late 1960s. The U.S. Congress outlawed all cigarette advertising from the electronic media in 1971. In 1972, the U.S. Federal Communications Commission required that all cigarette advertising carry a health warning. Cigarette advertising on radio and television was banned in Australia in 1976. The news media carried stories on lawsuits in the United States that accused tobacco companies of selling a product causing premature death. In 1979 the World Health Organization called for an end to all forms of tobacco promotion.
Advertising Code of the Tobacco Manufacturers’ Council. Pressure on the Canadian government to take action grew as more health and anti-smoking lobby groups were organized and took more publicly visible action. An all-party committee of the House of Commons (the Isabelle Committee) met in 1968-69 and concluded that there was a need for legislation to control the advertising of tobacco products (Canada, House of Commons, 1969, pp. 2-1 to 2-165). In 1971, the Canadian government tabled legislation to ban the advertising and promotion of tobacco products (Canada, Library of Parliament, 1995). The bill was never debated, and later that year the tobacco industry agreed to amendments to the voluntary Cigarette Advertising Code, which spoke to many of the points of pressure. An important feature of that code was the removal of tobacco advertising from the electronic media. The code froze advertising expenditures at 1971 levels; prohibited the use of incentive programs; barred the use of endorsers whose major appeal is to those under 18 years; and outlawed health, romance, and personal success claims in advertising. Tobacco products were not to be advertised on billboards near schools; packages were to carry a health warning (“Warning: Excessive Smoking May Be Hazardous to Your Health”); free sampling of cigarettes was controlled; cross-over use of cigarette, cigar, and pipe tobacco brand names was proscribed. The tar and nicotine content of cigarette smoke was set at specific maximums. Tobacco advertising was to be directed to adults over 18 years; advertising models were to be at least 25 years old; advertising was to be focused solely on increasing brand shares; and all advertising was to conform to the Canadian Code of Advertising Standards. The intent was that the four member companies voluntarily comply with the code (Report of the Study Committee of Health, 1969, pp. 2-1 to 2-165).
Anti-smoking lobbyists. In the fall of 1974, two antismoking organizations that were to have a major impact in the tobacco wars were established. The Non-Smokers’ Rights Association (NSRA), operating with the assistance of government funding, was to play a prominent role in lobbying and effectively communicating the need to control tobacco marketing. The Canadian Council on Smoking and Health combined the research and scientific credibility of the Canadian Heart Foundation, the Canadian Lung Association, and the Canadian Cancer Society in the fight against tobacco interests (Kyle,1990, p. 9).
By the early 1980s it was clear that the Tobacco Code did not satisfy those opposed to tobacco advertising. The tobacco industry was spending an estimated $96 million on advertising in 1982 (Collishaw, 1984), far more than allowed for by their code (Non-Smokers’ Rights Association, 1986, pp. 9-10). The NSRA, the Canadian Council on Smoking and Health, Physicians for a Smoke-Free Canada, and the Canadian Cancer Society launched vigorous lobbying and publicity programs. In 1984 the NSRA found cigarette billboards close to schools in a number of cities. The industry blamed the sign contractors (“Tobacco firms,” 1984). Advertising supporting the 1985 launch of Tempo cigarettes was met with vociferous criticism by the Canadian Cancer Society because of its apparent targeting of the young video generation. Meanwhile, Number 7 ran a promotion offering 30 cigarettes for the price of 25; critics said it provided 20% more cancer for free (“Trendy,” 1985). The readability of health warnings on billboards was attacked by the NSRA (Radkewycz, 1986, p. A12). In September the NSRA said they had found cigarette advertising in and on variety stores near schools. Although the industry said that signs in store windows were not covered by their Code (Wilson, 1986), a 1978 letter from the Tobacco Manufacturers’ Council suggested otherwise (Non-Smokers’ Rights Association, 1986, Exhibit A).
A coupon redemption plan for Mark Ten was found to be contrary to rule four of the Tobacco Code. The president of the Tobacco Manufacturers’ Council wrote to the NSRA in August 1985 indicating that the “problem” had been “corrected” (Non-Smokers’ Rights Association, 1986, p. 12). Imperial Tobacco withdrew its advertising from the centre-fold map of the guidebook at Canada’s Wonderland after the NSRA complained to federal officials that Imperial was promoting to youngsters (Non-Smokers’ Rights Association, 1986, pp. 1617).
The NSRA objected to an August 1987 Canadian Tire back-to-school flyer that contained an ad for jackets and caps imprinted with the John Player Special logo (Tenszen, 1987).
The Canadian Code of Advertising Standards. Another tack taken by the NSRA was to claim that the print media were violating the Canadian Code of Advertising Standards by publishing cigarette advertisements (“Print media,” 1984). The Advertising Standards code stated that, “Advertisements must not display a disregard for public safety or depict situations which might encourage unsafe or dangerous practices, particularly when portraying products in normal use.” The Advertising Standards Council took the position that the Code governs what may be said in an advertisement, not what products may be advertised (“Tobacco advertising,” 1984). A Code revision made that distinction clear. The Non-Smokers’ Rights group followed with full-page newspaper advertisements appealing to the print media not to accept tobacco advertising (“Newspapers,” 1984). Eventually the NSRA’s efforts paid dividends when some newspapers-the Kingston Whig-Standard was first (“Paper,” 1984) and then, notably, came Canada’s national newspaper, the Globe and Mail (Kyle, 1990, p. 9)-stopped accepting tobacco advertising.
Attempt to declare tobacco a hazardous product. In May 1986, Physicians for a Smoke-Free Canada applied to the Minister of Consumer and Corporate Affairs to have tobacco products included under the Hazardous Products Act and thereby limit tobacco marketing and promotion. Unsuccessful, the physicians’ lobby group then tried in Federal Court to force the minister to review its application (McQueen, 1987).
A private member’s bill to put tobacco on the list of hazardous products was proposed by Lynn McDonald, a New Democratic Party backbencher (Kyle, 1990, p. 9). However, when the Non-smokers’ Health Act passed into law, it contained a provision that if the Tobacco Products Control Act was passed, tobacco could not be regulated under the Non-smokers’ Health Act as a restricted product.
Other factors. The 1980s saw a number of other developments. In 1980 the Toronto Transportation Commission banned tobacco advertising from the transit system (Ferry, 1980). The following year, Health and Welfare Canada launched a media campaign directed at “impressionable young people” to produce a generation of non-smokers (Gory, 1981, p. 16). In 1985, with about seven million Canadians still smoking, Canadian governments and health groups began “a three-pronged approach of protection, prevention and cessation” called the National Strategy to Reduce Tobacco Use (Canada, Department of Health, 1995b, p. 10). At the beginning of 1985, the federal government declared that amateur sports organizations receiving tobacco sponsorship money would no longer receive government funding. This was also the year that the gradual removal of smoking from the workplace began, a process bolstered by the Non-smokers’ Health Act and the 1986 U.S. Surgeon General’s Report that said that passive smoking was a cause of cancer in nonsmokers (Canada, Library of Parliament, 1995).
During 1986 and 1987 Air Canada announced trials of smoke-free flights; subsequently, Transport Canada banned smoking on all short-haul flights; major cities across the country proscribed smoking in the workplace; smoking was restricted to designated areas in federal public service workplaces; and, most importantly, a bill to ban tobacco advertising was introduced in Parliament (Baker, 1989).
The industry rejoinder. As it became more and more apparent that the anti-smoking forces were succeeding, the tobacco forces counterattacked. In 1986, the tobacco manufacturers put up $100,000 to form the Smokers’ Freedom Society to fight high tobacco taxes and government intervention in the affairs of the industry, and to restore the “respectability of smoking.” The Canadian Tobacco Manufacturers’ Council distributed a 32-page booklet designed to refute concerns over the cancer connection with passive smoking and to support the rights of smokers.
When Air Canada announced in 1986 that it would experiment with smoke-free domestic flights, tobacco companies asked their employees not to fly on Air Canada. This gambit was countered by the Canadian Cancer Society asking its 350,000 volunteers and staff members to support the smoking ban by flying Air Canada (Kyle, 1990, p. 10).
The anti-smoking lobby fights back. Even though the Conservatives had a huge majority, there was little certainty that tobacco-control legislation would pass. In May 1986 Minister of Health Jake Epp told Parliament he was against banning tobacco advertising because there was little evidence that it would reduce smoking (Kagen & Vogel, 1993). In order to rally support, the Non-Smokers’ Rights Association (NSRA) attempted to vilify the tobacco industry. Sensational full-page newspaper and magazine advertisements were published in 1986; one stated that thousands of Canadians had died from tobacco related illnesses while the tobacco industry’s advertising code had been in place, and still “the government sits in legislative silence.” Another asked why tobacco, an addictive substance, is exempted from the Hazardous Products Act (Mintz, 1990, p. 36). In addition to advertising, the health coalition used media conferences, TV and radio talk shows (Kyle, 1990, p. 9).
In another important strategy, the NSRA sought and obtained the support of the Canadian Cancer Society (CCS) and the Canadian Medical Association (CMA). In 1987 the Cancer Society had volunteers send 35,000 black-bordered cards to their members of Parliament, one for each person who had died from tobacco-related diseases. The Canadian Medical Association had its members lobby their local members of Parliament and asked CMA members to vote against those who did not support tobacco-control legislation (Lachance & Collishaw, 1989). Almost 200 voluntary health organizations cooperated to obtain tobacco-control legislation, including the Canadian Council on Smoking and Health (leading members of which included the Heart and Stroke Foundation of Canada, the Canadian Lung Association, and the Canadian Cancer Society) and Physicians for a Smoke-Free Canada (Kyle,1990, p. 10).
Recognizing the power of the mass media, the health coalition worked with the communications industry to develop support for control of tobacco advertising. By 1988, a number of newspapers had taken pro-tobacco-control positions in their editorials, and some, including the Montreal Gazette, the Ottawa Citizen and the Toronto Star, voluntarily began refusing to accept tobacco advertising (Mintz, 1990, p. 34).
Legislative developments. With the private member’s bill, the Non-smokers’ Health Act (NsHA), moving through Parliament, the government was under pressure to put forward its own legislation. In April 1987, bill C51, later known as the Tobacco Products Control Act, was introduced in the House of Commons.
Tobacco’s grass-roots campaign. The tobacco companies orchestrated and paid for a large-scale letter-writing campaign by tobacco retailers to their members of Parliament (Lachance & Collishaw, 1989). Coalition 51 (named for the bill C-51), organized in the summer of 1987 by Rothmans, Benson and Hedges Inc., called the legislation well-intentioned but ill-conceived. According to Kyle, these initiatives were so successful that letters to members of Parliament were nine to one against the proposed legislation (Kyle, 1990, p. 11) Tobacco’s objective was to convince the government that a stronger industry advertising code was preferable to a legislated solution (Kagan & Vogel, 1993). The industry stressed its right to communicate with its customers.
The health lobby’s war room. The fall of 1987 saw the anti-smoking/health lobby battling back against the gains made by the tobacco industry. Advocacy advertising, public-opinion polling, a pamphlet campaign called “Give the Kids a Chance,” and a tour of media outlets in Western Canada were undertaken. Letters were sent to all members of parliament detailing the death rate from tobacco-related diseases in their ridings, individual members were lobbied, the position of each MP and senator was tracked, and meetings were held with the federal caucuses. The focal point of these efforts was to implant the notion that 35,000 Canadians die each year from tobacco consumption (Kyle, 1990, p. 11).
The NSRA and other anti-smoking groups also worked to push McDonald’s Non-smokers’ Health Act forward against government resistance. An October 1987 Gallup poll indicated that 62% of Canadians supported the proposed ban on cigarette advertising and promotion (Kyle, 1990, p. 9).
The prime-ministerial connection. In keeping with the industry’s history of co-opting individuals of major political influence, the tobacco industry hired William Neville in January 1988 as head of the Canadian Tobacco Manufacturers’ Council. Neville, who had been chief of staff to former Conservative prime minister Joe Clark, was close to Prime Minister Brian Mulroney. He had assisted in setting up the Prime Minister’s Office after the 1984 election and was said to be a friend of Mulroney’s (Mahood, 1995, p. 12). In response, the health lobby used this “proximity to power” as a weapon against Neville and tobacco. A Globe and Mail advertisement showing pictures of Mulroney and Neville stated, “How many thousands of Canadians will die from tobacco industry products may largely be in the hands of these two men.” (Kyle, 1990, p. 11).
During early 1988, the Canadian Tobacco Manufacturers’ Council utilized full-page newspaper advertisements to present their arguments against the proposed legislation. Their lobbying activities centred on freedom of speech and the economic importance of the tobacco industry. In mid-1988, on the day of the passage of the Tobacco Products Control Act, William Neville published an article in which he laid out the arguments that would soon be heard in the Superior Court of Quebec. Neville contended that with no proven link between advertising and cigarette consumption, banning tobacco advertising was purely symbolic. He argued that the legislation infringed on the companies’ freedom of expression. He claimed that there would be a loss of jobs and foreign brands would capture market shares (Neville, 1988).
Two bills are passed. In the end, the anti-tobacco forces prevailed, and according to Kyle, much of the credit must go to the health minister, Jake Epp, who was “was genuinely committed to the enactment of tough measures to combat tobacco use.” (1990, p. 10). His staff, key members of the Department of National Health and Welfare, and members of Parliament from all three parties played roles in the passage of both the Tobacco Products Control Act and the Non-smokers’ Health Act. On June 28, 1988, both pieces of tobacco-control legislation received Royal Assent.
The Tobacco Products Control Act. The objectives of this act were to protect the public’s health; to assist young people to avoid the use of tobacco products; and to communicate the dangers of tobacco use to consumers. Because provincial governments, not the federal government, have the constitutional right to control advertising through legislation, it was necessary to couch the purposes of the legislation in public health protection terms.
The provisions of the Tobacco Products Control Act (TPCA) were to begin to come into force on January 1, 1989, and when completely in place (in January 1993), were designed to remove most of the messages and images of tobacco products from public view. Only sponsorship of cultural and sporting events would be allowed, provided corporate, not brand names were used. (To circumvent this provision, the tobacco companies incorporated companies identical to their brand names, e.g., Players Ltd., du Maurier Inc.) Sponsorship expenditures were fixed at 1988 levels. Conviction under the TPCA carried maximum penalties ranging from less than $2,000 to up to $300,000, and from six months to two years imprisonment. The provisions of the act are outlined in the Appendix.
The NsHA, the private members’ bill that had pushed the government to enact the Tobacco Products Control Act, requires all employers within federal jurisdiction, with some exceptions, to provide a smoke-free work environment, and restricts smoking on aircraft, trains, buses, and ships. The provision that would have classified tobacco as a hazardous substance under the Hazardous Products Control Act (and thus banned advertising and promotion) was removed from the NsHA as a result of the passage of the TPCA (Canada, Department of Health, 1995b, pp. 10-ll).
Quebec Superior Court ruling. Immediately after passage of the TPCA, the tobacco industry, represented by Imperial Tobacco and RJR-Macdonald, moved to have the courts set aside the legislation. Anti-smoking advocates asserted that the court challenge was being run out of the United States, citing leaked documents from a U.S. public relations firm prepared for R.J. Reynolds Tobacco USA (the sole shareholder of RJR-Macdonald Inc.) (Byrne, 1989, p. A I ). (Rothmans, Benson and Hedges Inc. was the first company to challenge the TPCA. Their filing, in the Federal Court of Canada in Toronto, was not pursued.)
Tobacco companies and their supporters celebrated the July 26, 1991 ruling of Justice Chabot of the Superior Court of Quebec. Chabot found that the Tobacco Products Control Act was not within the constitutional power of the Government of Canada and violated the Canadian Charter of Rights and Freedoms (Canada Law Books, 1991, pp. 449- 537).
Justice Chabot agreed with the tobacco companies that the true purpose of the TPCA was to control advertising, not to protect the health of the public as the Attorney General of Canada had argued. Regulation of advertising is a matter of provincial jurisdiction, so the act was ultra vires (beyond the power of) the Government of Canada.
The Charter of Rights and Freedoms guarantees freedom of expression. That right cannot be abrogated by legislation without appropriate cause. Judge Chabot ruled that the free speech of the companies was violated because the act did not constitute a reasonable restriction on freedom of expression in a democratic society. His reasoning was that there is no rational connection between the restrictions imposed and the objective sought (between banning advertising and reducing tobacco consumption in order to protect public health), and that the restrictions are arbitrary. He held that banning all tobacco advertising is not a minimal impairment to freedom of expression, and that the restraints imposed are “an extremely serious impairment” of freedom of expression and are disproportionate to the objective of the act.
Because of the significance of the judgment, Justice Chabot ruled that the provisions of the act would remain in force until all appeals had been heard. Although the press reported that the tobacco companies would begin advertising almost immediately, they did not.
Appeal court judgment. On January 15, 1993, Justices LeBel, Rothman, and Brossard of the Quebec Court of Appeal reversed the lower court ruling. In a majority decision, they ruled that the Tobacco Products Control Act is within the jurisdiction of the Government of Canada and, although the act violates free speech, it is justified in a free and democratic society (Dominion Law Reports, 1993, p. 289-393).
The three justices agreed that the essence of the act is public health legislation, and not advertising. The Government of Canada has jurisdiction under the government’s powers of peace, order, and good government. The court held that the health problems created by tobacco are of such importance that they meet the “national concern” test of a high degree of “unity, particularity and indivisibility.”
The justices agreed that the TPCA violates the free speech of the tobacco companies. However, Judges LeBel and Rothman found that this violation was justified. Judge Louis LeBel, for the majority, wrote, “The court must . . . determine whether, on the basis of the information available, the choice adopted is part of measures which possibly, for a legislator acting reasonably, will achieve the desired objective.” In other words, it is not necessary to have proof that outlawing advertising will reduce cigarette consumption, just a reasonable belief, perhaps along with other measures, that it will achieve that objective.
Justice Brossard, in dissent, argued that the provisions that prohibit the advertising of tobacco products violate free speech and that there must be a rational connection, i.e., a probability that a ban on advertising could lead to a reduction in tobacco consumption.
Leave to appeal. On March 16, 1993, the tobacco companies applied for leave from the Supreme Court of Canada to appeal the Appeal Court judgment. The Court announced on October 14, 1993 that it would hear the tobacco companies’ appeal (Brent, October 15, 1993, p. 5).
Testing government resolve. During the period between the passage of the Tobacco Products Control Act (June 1988) and the Supreme Court of Canada ruling (September 1995), the tobacco companies seemed to be probing the market to see what reaction they would get from the federal regulators. Cents-off stickers covering health warnings were placed on Black Cat packages (Cernetig, 1990); package inserts and 1-800 numbers were used to promote a redesign of the Belvedere brand and to push Maverick Cheroots; in-package advertisements and a 1-800 number were used to give away lighters, which looked like miniature Export A packages, to callers who responded to questions about their cigarette consumption (Freeman, 1992); a promotional line, “Traditional Taste/Reduced Irritation,” was printed just above the health warning on packages of Player’s Light Smooth (Gibbon, 1992). Later, in September 1995, Rothmans gave away cartons of a new brand, Canadian Classics, through the mail with a questionnaire to be completed after the recipients (one a 16 year old) had smoked the cigarettes (Coutts, September 14, 1995, p. A6). Although these initiatives created a storm of protest from the health lobby, the regulators did little that was publicly observable.
Taxes and prices. Dramatic increases in federal and provincial taxes on cigarettes and other tobacco products, plus manufacturers’ price increases, drove retail prices up by a factor of 2.6, after allowing for inflation, between 1981 and 1991 (Allen, 1993, p. 3); by 1992 taxes made up 70% of the retail price. The industry maintained, supported by the literature (see Allen, 1993, pp. 36-38; Andrews & Franke, 1991) and government documentation (Fagaen, July 13, 1993, p. Al, A2) that rising taxes and retail prices were a major factor in driving down consumption (see Zimring & Nelson, 1995, for an analysis of the different purposes of cigarette taxation). However, when the tobacco companies were lobbying against prospective new taxes in Ontario in June 1992, they advertised that higher taxes were failing to discourage smoking. The Non-Smokers’ Rights Association responded with a formal complaint of false advertising (Howard, 1992).
Data from Canadian, American, and European studies suggest that a 10% increase in cigarette prices is likely to lead to a 5% reduction in the incidence of smoking (Zimring & Nelson, 1995, p. 529). According to the Lung Association, for “each 10% increase in tobacco taxes you can expect a 14% decrease in consumption among children . . . [and] . . . a 12% drop in the number of children who would have otherwise started to smoke” (“Increase,” 1993).
Higher taxes and retail prices had another effect, a thriving black market. This market was fed by tobacco products, manufactured in Canada, legitimately sold into the U.S. market, and subsequently smuggled back into Canada. To curb this illegal activity, the federal government imposed an export tax of $8 per carton of cigarettes.
Tobacco manufacturers threaten to move production out of Canada. The export tax imposed in February 1992 brought threats to move the manufacture of cigarettes out of the country (“Taxing limits,” 1992). Under pressure from the tobacco companies and unions representing tobacco workers, the government rescinded the tobacco export tax in April 1992.
An analysis by University of British Columbia professor Robert Allen and seven colleagues concluded that the removal of cigarette manufacturing from Canada would have minimal economic impact, and may occur in any event because of the Free Trade Agreement. Indeed, RJR-Macdonald had already said that it would make Canadian brands in Puerto Rico to supply duty-free and offshore markets (Allen, 1993; see also the argument of Warner and Fulton, 1995, that because resources devoted to tobacco would be reallocated to other productive economic activities, the economic impact of a shift away from tobacco would likely be negligible).
According to a report prepared by Professor LeoPaul Lauzon of the Universite du Quebec a Montreal, about 54% of the profits from the three largest tobacco companies for the period 1987 to 1993 were exported to their shareholders, mainly to British, Dutch, and American tobacco companies, outside of Canada (Mackie, 1994c).
Health warnings and packaging. Over the last 25 years there has been a transition in Canada from the very general health warning, agreed to by the industry in their 1972 code, to the very specific warnings that were required by the Tobacco Products Control Act (TPCA). Although there does not appear to be any research in the public domain that evaluates the effectiveness of Canadian tobacco health warnings, the literature on American warnings (see Loken & Howard Pitney, 1988) suggests that those such as: “Smoking can kill you” and “Cigarettes are addictive” are more likely to be effective than the original “Warning: Health and Welfare Canada advises that danger to health increases with amount smoked-avoid inhaling.”
Regulations under the TPCA required warnings starting October 31, 1989. The warnings were to be prominently displayed on the face of the package, English on one side and French on the other, in contrasting colours, in a specific size of print, covering 20% of the surface, and located parallel to the bottom of the pack. The required warnings under the regulations were: “Smoking reduces life expectancy,” “Smoking is a major cause of lung cancer,” “Smoking is a major cause of heart disease,” and “Smoking during pregnancy can harm the baby” (Canada, Library of Parliament, 1995). In addition, the toxic substances in the tobacco and in the smoke, plus the tar yield, were to be printed on the side of the package.
Apparently, the close relationship of William Neville (head of the Canadian Tobacco Manufacturers’ Council) and Prime Minister Mulroney played a major role in watering down the health warnings. These were to contain warnings about addiction and environmental tobacco smoke and require a package insert of warnings (Mahood, 1995, p. 12). Revelation of this lobbying based on data obtained under the Access to Information Act-and lobbying by the NSRA (plus their design and creative work) influenced Minister of Health Perrin Beatty to move to change the warnings. Despite a lack of support from ministry bureaucrats, the minister announced new warning requirements to come into force June 1, 1991 (McLaren, 1990). Likely as a function of the tobacco companies’ litigation of the TPCA, the government took no further action on the proposed new warnings. After the Superior Court of Quebec ruled the TPCA unconstitutional, despite the fact the act was to be in force until all appeals had been heard, the government indicated that the NSRA should “back off” on trying to get changes to the warnings (Mahood, 1995, p. 12).
Rather than accede to the government’s instruction, the NSRA, the Canadian Council on Smoking and Health, the Heart and Stroke Foundation, the Canadian Cancer Society, the Lung Association, and Physicians for a Smoke-Free Canada began a multifaceted lobbying campaign. Legal opinions were obtained countering the arguments of justice lawyers; and economic analysis was commissioned to respond to the industry’s position that hurting tobacco would cost jobs. Through the auspices of the National Campaign for Action on Tobacco, letters were sent to all households in the ridings of each of the government ministers involved in the health-warning decision. Full-page advertisements were placed in the English and French dailies in Ottawa.
In August of 1993 the new minister of health, Benoit Bouchard, succeeded in convincing cabinet to approve new warnings. As in the past, the industry was given a long lead time; the new warnings were to be implemented by September 1994. The tobacco industry responded by asking the Supreme Court of Canada to delay the new warnings until the final adjudication of the Tobacco Products Control Act litigation. In February 1994, the court unanimously approved the enforcement and timing of the new warnings, saying that it recognized “the undeniable importance of the public interest in health and the prevention of widespread medical problems attributable to smoking” (“Tougher warnings,” 1994).
The new rules forced the manufacturers to print one of a set of eight warnings on the top half of the packages; the warnings were to cover 25% of the front and back of the package. Half the time the warning was required to be black on white and the other half white on black. The warnings were to be rotated on an equal basis. Cartons were to carry the warning, “Cigarettes are addictive and cause lung cancer, emphysema and heart disease.”
The new warnings, said to be among the toughest in the world, had some unique features: “Cigarettes are addictive”-warning about addiction; “Smoking can kill you”- personalization of the warning; “Cigarettes cause cancer,” “Cigarettes cause fatal lung disease,” “Cigarettes cause strokes and heart disease”-moving the blame to the product and away from the victim; “Tobacco smoke causes fatal lung disease in non-smokers” and “Tobacco smoke can harm your children”strong warnings about environmental tobacco smoke; and “Smoking during pregnancy can harm your baby” (Mahood, 1995).
In another change, the toxic ingredients of the tobacco and the smoke, printed on a side panel, had to be listed black on white under the title “Toxic Constituents.” The constituents had to be spelled out, i.e., “nicotine,” not “nic.,” “carbon monoxide,” not “CO,” as on previous packages.
Generic packaging. Anti-smoking advocates, who had long demanded that the government “strip the cigarette package of its sophistication and allure,” were pleased with the improved warnings. There was still a push for generic packaging, which would require that all brands of cigarettes be sold in plain packages with black printing and the brand name in generic type. As one commentator put it: “Package sizes, materials, and opening methods would be standardized to minimize marketing efforts to differentiate products” (Cunningham & Kyle, 1995, p. 80). Generic packaging was said to thwart brand differentiation and reduce the effectiveness of event sponsorship. Industry officials called this confiscation of corporate assets. Interestingly, a survey found strong support from both smokers and nonsmokers for generic packaging (Bochove, 1992).
In November 1993 the Ontario government, which had been investigating generic packaging, decided not to proceed despite the results of provincially sponsored research (Mittelstaedt, November 20, 1993, p. A4). Focus groups of teenagers, 72% of whom were smokers, when asked to describe the kind of people who would buy cigarettes in generic packages, used words such as “wimps,” “losers,” and “geeks,” while those who would buy brand-designed packages were seen as cool, with-it, and smart. They also said plain packaging made cigarettes look “more serious” compared to brand packages, which look “fun.” Forty percent of the sample thought plain packaging wouldn’t result in a decrease in the number of young people smoking (Centre for Health Promotion, 1993). Studies done in the United States, Australia, and New Zealand suggested that plain packaging would likely reduce tobacco use (Cunningham & Kyle, 1995, p. 81).
As part of the tobacco tax-reduction strategy put forward by the federal government in early 1994, an investigation of generic packaging was launched. Eight of the ten provincial health ministers, while decrying the lowering of cigarette taxes, supported the idea of plain packaging (York & Mickleburgh, 1994).
An industry spokesman said that “people do not take up smoking because of nice packaging.” He also cited the costs of changing packaging again and said that plain packaging was an attack on free speech and would injure tobacco trademarks (Mittelstaedt, 1994).
Hearings before the parliamentary committee on health were told that previous studies suggest that generic packaging discourages tobacco consumption. The health ministry’s research on plain packaging was to be completed by the end of 1994 (McKenna, 1994b). Tobacco lobbyists testified that plain packaging would not curb, but might encourage smoking, and would be very costly, result in job losses, restart smuggling, result in price competition, and lead to law suits for damages (McKenna, 1994d). The Convenience Store Association said poor customer service would result from identical packages that would confuse clerks (Bueckert, 1994). A report by a firm of forensic accountants for the Canadian Association of Chain Drug Stores suggested that plain packaging would make it easier and cheaper for counterfeiters and smugglers to sell cigarettes in Canada (Lindquist Avey Macdonald Barkerville, 1994). Cunningham and Kyle later argued that with a “sophisticated tax paid marking” and complex, though plain packaging, counterfeiters would be discouraged from imitating tobacco packages (Cunningham & Kyle, 1995, p. 84).
A representative of American multinational tobacco companies threatened to seek millions of dollars of damages if they were denied the right to use their colourful logos and trademarks on tobacco packages in Canada. Contrasting legal opinions were presented by tobacco and health supporters (McKenna, 1994c). The president of Philip Morris International, the world’s largest consumer packaged-goods company, wrote that his company would rethink its investment in Canadian food businesses if generic packaging for cigarettes was legislated (McKenna, 1994e). In its report to the House of Commons, the committee recommended plain packaging if the government’s research showed that it would reduce consumption (Howard, 1994).
The expert report on plain-packaging research. An expert panel, commissioned by Health Canada, carried out a review of the relevant literature, a series of 10 focus groups, a national survey, and a series of experiments. It concluded that, “Plain and generic packaging (all other things being equal) through its impact on image formation and retention, and consumer attitudes and utilities, would likely depress the incidence of smoking uptake by non-smoking teens, and increase the incidence of smoking cessation by teen and adult smokers” (Health Canada, 1995).
Restricting the marketing of cigarettes to children. Health lobbyists and anti- smoking groups have long argued that it is essential for the tobacco companies to attract young people to replace the customers they lose to old age and tobacco-related diseases. Although the validity of the research is disputed by some anti-smoking representatives, government data indicate that the prevalence of smoking among young people aged 15 to 19 remained at about 24% during the period 1985-1994. It is estimated that almost 600,000 Canadians aged 10 to 19 were smokers in 1994 (Canada, Department of Health, 1996).
Evidence from the TPCA trial made it clear that tobacco companies have long targeted the youth segment of the market through sophisticated research, marketing strategies, and advertising (Cohen, 1990, pp. 9-10; Cunningham, 1995; Pollay, 1990; Pollay & Lavack, 1993, pp. 267-269). Although the tobacco companies say they don’t advertise to young people, according to the Toxic Substances Board, “As long as the right of tobacco companies to advertise is upheld, children will inevitably be exposed.” (1989, p. 44).
Vulnerable youngsters are most likely to succumb to smoking. American data indicate that adolescents with less education, lower self-esteem, and friends who use tobacco, and those who have less skill than have their peers to resist persuasive influences are more likely to use tobacco (U.S., Department of Health and Human Services, 1994, p. 6). A wide variety of factors play a role in determining whether a youngster starts and continues to smoke, for example, social networks, parental behaviour and attitudes, peer and best-friend behaviour and attitudes (Friedman, 1985; Health and Welfare Canada, 1987), sibling behaviour and attitudes, living outside the parental home, ethnicity, psychosocial characteristics [rebelliousness, need to be seen as an adult, self-esteem, weight control, stress, sensation-seeking, risk-taking] (Kutner, February 10, 1992, p. E2; National Clearinghouse on Tobacco and Health, 1989), gender (van Roosmalen & McDaniel, 1991), product factors [low-nicotine cigarettes] (Silverstein, Field, & Kozlowski, 1980), school smoking regulations, youth organization smoking rules (Goodstadt, Lawson, & Langford, 1982), age and grade in school, socioeconomic status, education level of parents, and use of other drugs [alcohol, cannabis] (National Clearinghouse on Tobacco and Health, 1989).
There is a large body of literature on the influence of tobacco advertising on children that indicates that children as young as three can recognize cigarette logos and characters (Fischer, Schwartz, Richards, Goldstein, & Rojas, 1991); juvenile smokers are more likely to be aware of the highly advertised brands (Charlton, 1986); youngsters are most likely to smoke heavily advertised brands (Aitken, Leathar, O’Hagan, & Squair, 1987; Goldstein, Fischer, Richards, & Creten, 1987); children who are more familiar with cigarette advertising and have positive attitudes toward that advertising are more likely to be smokers (Aitken, et al., 1991; DiFranza et al., 1991); and young people who smoke tend to overestimate smoking prevalence (Botvin, Goldberg, Botvin, & Dusenburry, 1993). Data suggest that cigarette advertising may both predispose and reinforce children’s smoking attitudes and behaviour (Aitken, et al., 1991; Klitzner, Gruenewald, & Bamberger, 1991). According to the 1994 U.S. Surgeon General’s Report, “Cigarette advertising appears to increase young people’s risk of smoking by affecting their perceptions of the pervasiveness, image and functions of smoking.” (U.S., Department of Health and Human Services, 1994, p. 6). Pollay et al. found that brand selection among teenagers is related to cigarette advertising intensity, and this relationship is stronger for teens than adults (1996, p. 10).
Since 1908, it has been illegal in Canada to sell tobacco products to persons under the age of 16, but the law has been little applied (Canada, Library of Parliament, 1995). Although the 1993 Tobacco Sales to Young Persons Act increased the legal tobacco-purchase age to 18, and some provinces (Ontario, British Columbia, and the four Maritime provinces) raised the age limit to 19, the ineffectiveness of this type of legislation has been obvious. With 10,000 youngsters starting to smoke every month, accessibility to cigarettes is a major concern (“Target executives,” 1993). A survey conducted by Smoke-Free Nova Scotia among children aged 12 to 19 years who smoked, indicated that 45% of them would not have started if it had been harder for them to buy cigarettes (“Enforce ban,” 1993).
The Survey on Smoking in Canada, released in November 1994, indicated that underage smokers buy 70% of their cigarettes directly from retailers (Canada, Department of Health, undated, p. 5). A study of tobacco retailers in Quebec City, Montreal, Ottawa, and Toronto found that 93% of the outlets sampled actually sold tobacco products to 15-year-old test subjects (Radecki & Zdunich, 1993). The most common sources of cigarettes for youngsters are corner stores and gasoline stations (Canada, Department of Health, 1996).
While tobacco manufacturers have said they support measures designed to keep cigarettes away from youngsters, their actions often belie their words. For example, in Edmonton, tobacco companies attacked the suspension of the licence of a retailer convicted of selling cigarettes to children (“Enforce ban,” 1993).
Components of the 1994 Federal Tobacco Demand Reduction Strategy were designed to reduce the access of children to cigarettes. Retailers were required to post signs indicating that sales to persons below legal age are prohibited. Existing federal food and drug inspectors, along with 40 new ones, were directed to enforce tobacco-age legislation. The maximum fine for repeat offenses by retailers was increased to $50,000 (Health Canada, undated, p. 5). British Columbia has adopted legislation to provide a mechanism to remove retailers’ tobacco licences in order to discourage the sale of cigarettes to children. Although the industry resisted, in 1994 the federal government prohibited “kiddie packs,” packages of fewer than 20 cigarettes, which, because of their lower price, were attractive to children.
Because of the incongruity of health professionals selling cigarettes, provinces, from time to time, have proposed legislation to prohibit the sale of tobacco by pharmacies. The irony that one of the largest pharmacy chains in Canada is owned by the same company that owns Imperial Tobacco is not lost on health lobbyists. In 1994, Ontario, despite vehement opposition from chain and some independent drugstores, legislated against the sale of tobacco in drugstores. In January 1996, the Ontario Court of Appeal upheld a lower-court decision that the law banning the sale of tobacco products in pharmacies was constitutional (“Ban,” 1996). Francois Vaillancourt, professor of economics at the University of Montreal, suggests that cigarettes only be sold by pharmacists (Who better to sell drugs and keep them out of the hands of children?). This would allow the application of a health-care tax based on tobacco use (Vaillancourt, 1994).
Some provinces (Ontario and Nova Scotia in 1994) have outlawed the sale of cigarettes from vending machines. The federal government, as part of the Tobacco Sales to Young Persons Act (1993), restricts cigarette vending machines to bars, taverns, and similar locations.
Smokers Freedom Society. This industry-supported society, said to have had about 12,000 members, campaigned across the country in defense of smokers’ rights. They tried to put pressure on politicians to reduce tobacco taxes and to restore rights lost over the last decade to various pieces of health legislation (Corcoran, 1993).
The Canadian Tobacco Manufacturers’ Council and the Smokers Freedom Society argue that the Canadian restrictions on the marketing of tobacco products have been futile. They point out that the decline in consumption of cigarettes in Canada is not dissimilar to that experienced in the United States, where many fewer restrictions are present (“Tobacco use,” 1993; “Stop smoking,” 1993). According to the Canadian Council on Smoking and Health, that argument doesn’t hold water. From 1985 to 1991, the rate of decline of per-capita consumption was one-third faster in Canada (the rate in Canada was 25%; that in the United States was 19%) (“Decline,” 1993; see also Kaiserman & Rogers, 1991).
An important impetus for the decline of smoking in Canada has been tax increases, which have resulted in large increases in cigarette prices. The Department of Finance concluded that “On balance, federal tax increases since 1985 have resulted in a net decline in overall tobacco consumption in Canada.” (Canada, Department of Finance, 1993, p. 99).
The 1993 tobacco tax revolt. Cigarette smuggling took off in a big way shortly after February 1991, when the federal and provincial governments each put on an additional tax of 75 per package. Exports as a percentage of total Canadian domestic sales of cigarettes and fine-cut tobacco had risen from 1% in 1985, 6% in 1990, 20% in 1991, 31% in 1992, and 53% in 1993 (Statistics Canada, 1996). It was estimated that during 1992, 80% of exported cigarettes found their way back into the country illegally (“Cigarette exports,” 1993). The Department of Finance determined that for every 10% increase in tobacco taxes there was more than a 10% increase in tobacco exports, most of which would be smuggled back into Canada (Canada, Department of Finance, 1993, p. v). Forensic accountants hired by the tobacco industry estimated that in the mid-1980s, less than 1 % of cigarettes smoked in Canada were smuggled. By 1992, 17% were contraband (Lindquist Avey Macdonald Barkerville, 1994, p. 5). The loss in government revenues as a result of smuggling was staggering.
Quebec was the first province to cry uncle, in early 1993. A large proportion of the contraband cigarettes was coming from American Indian reservations through the Canadian reserves that straddle the New YorkQuebec frontier. With smuggled cigarettes reaching an estimated 75% share of the Quebec market by the end of 1993 (Galt, 1994), not only were governments not receiving taxes, but also small independent retailers were losing an enormous amount of business. To dramatize their problems, a group of retailers, said to be supported by tobacco manufacturers, began to break the law openly and sell tax-free cigarettes in January 1994 (Mackie, 1994a).
Representatives of provincial government health organizations and anti-smoking groups lobbied hard in Ottawa, taking out full-page advertisements (“Antismoking,” 1994), and arguing that lower prices would encourage more young people to smoke (Canadian Cancer Society, 1994). Alternatives to a tax cut such as reinstating the export tax; considering whether charges could be laid against tobacco companies of abetting, conspiracy, and possession of the proceeds of crime for their role in relation to the smugglers; removing the tobacco exemption from the Hazardous Products Act; and taxing smokers rather than cigarettes by surcharging-charging the health-care premiums were proposed. In the end, the tax reduction won out.
Strongly supported by Quebec, in February 1994 the federal government provided a mechanism to cut taxes and drop the retail price by $20 per carton to match the black-market price (McKenna, 1994a). Quebec, followed by New Brunswick, immediately lowered cigarette taxes; Ontario, Nova Scotia, and Prince Edward Island resisted, but by March all had reluctantly fallen in line. Newfoundland and the Western provinces did not reduce taxes (Lindquist Avey Macdonald Barkerville, 1994, p. 6).
The federal government reinstated the export tax of $8 per carton; put $150 million into police efforts to stop smuggling; surtaxed the profits of tobacco companies to pay for a $185-million-dollar anti-smoking campaign aimed at teens and parents; and made moves to ban “kiddie packs” and examine generic packaging (McKenna, 1994a). According to police officials, smuggling dropped by 90% almost immediately. A poll showed that 78% of those who had been buying smuggled cigarettes had returned to the legitimate market (Lindquist Avey Macdonald Barkerville, 1994, p. 6; Mackie, 1994b).
The tobacco manufacturers avoided the export tax by paying U.S. taxes (just $2.40 per carton), as allowed for in the legislation. Less than $1 million was paid on exports of 22 million cartons in the months after February 1994 (Fischer, 1995, p. B4). That summer, two factors took much of the profit out of smuggling: the U.S. Supreme Court ruled that New York could put taxes and quotas on cigarettes sold on Indian reservations (Ferguson, 1994c); and the value of the Canadian dollar declined. This provided the opportunity to increase Canadian cigarette taxes.
One year after slashing cigarette prices, the federal government added 600 per carton to its excise tax, and Quebec matched the increase. This left the price of cigarettes at about half what it was one year previously (McKenna, 1995b). Police reported a jump in smuggling as a result of the February cigarette tax increase (“Small tax hike,” 1995). The Non-Smokers’ Rights Association claimed that the federal and provincial governments had lost $1.2 billion in tobacco taxes in 1994-95 (twice the original estimate) as a result of the tax cut. The Canadian Tobacco Manufacturers’ Council called the data “inaccurate and misleading” (“Tax cuts,” 1996).
Circumventing the ban on advertising. The Tobacco Products Control Act had banned all advertising of tobacco products, but it allowed the sponsorship of cultural and sporting events, provided corporate and not brand names were used (manufacturers incorporated companies to match each of their leading brands to circumvent this part of the law). The legislation restricted promotional expenditures to the amount spent in 1988. Anti-smoking groups claimed that tobacco companies spent more on sponsorship than allowed by law (expenditures on sponsorship rose from $10 to $12.5 million in 1987 and reached $40 million in 1992; Canada, Parliament, House of Commons, 1988, p. 21; Cunningham, personal communication, 1996) and advertised sponsored events on billboards, transportation media, magazines, newspapers, and on signs in and on retail outlets all year (York, 1994, p. A2). The advertisements utilize brand colours and corporate names in trademark style, providing a direct link to the cigarette brands. Many of the sponsored events, it is said, are attractive to young people; focus on active, healthy lifestyles; and present tobacco companies as respected entities in society (Taylor, 1984, p. 99 outlines the reasons why sponsorship is vital to tobacco companies).
It is notable that in 1989, when Canadian tobacco companies were forced by law to concentrate their advertising expenditures on event sponsorship, American cigarette manufacturers were already doing so. In the 1960s, less than 10% of American tobacco companies’ advertising and promotion expenditures had been spent on sponsorship and sales promotion; by 1983 that figure had risen to more than 50%; and by 1990 it was 79% (U.S., Department of Health and Human Services, 1994, p. 161). These data suggest that sales promotion of cigarettes is relatively more effective than media advertising.
Sponsorship is effective in reaching young people. Data from a survey by Health Canada indicate that half a sample of 23,700 young people aged 10 to 19 had seen advertisements for tobacco-sponsored events; smokers were more likely than nonsmokers to report having seen tobacco sponsorship advertisements; 43% of smokers and 58% of nonsmokers agreed that tobacco sponsorship is “a way of encouraging people to smoke” (Canada, Department of Health, 1996).
The government’s anti-smoking media campaign. The federal government, since at least 1985, has sporadically used the media to present advertisements designed to encourage people not to smoke or to quit. The National Strategy to Reduce Tobacco Use, developed by the federal and provincial governments and health organizations, was intended to produce a “generation of nonsmokers” by the year 2000. The plan was designed to help nonsmokers avoid starting, to assist smokers to quit, and to protect the public from tobacco smoke. The most publicly obvious element of the strategy was a massmedia campaign aimed at 11-to-17-year-olds called “Break Free” or “Fumer, c’est fini” (see Mintz, Layne, Desrosiers, & Hazel, 1996).
There is conflicting evidence as to the effectiveness of the television commercials used in this long-running advertising campaign. A survey of adolescents found, not surprisingly, no difference in smoking behaviour between those who had and had not seen the “Break Free” commercials. As well, teenaged girls in focus groups said the messages were annoying and ineffective and the commercials stupid and unreal. However, a 1993 study found that 54% of young people surveyed said the advertisements “made me think about not smoking” (York, 1994; see Mintz et al., 1996, for a description of the cycles of research and advertising carried out).
The surtax on tobacco manufacturers’ profits instituted in 1994 was to generate $200 million, much of which was to be spent on a media anti-smoking campaign. Plans were to direct major chunks of this money to high risk groups: teens, young women, unemployed women, single mothers, women in low-paid jobs, aboriginal teens and women, women with less formal education (York, 1994). This three-year program, part of the Tobacco Demand Reduction Strategy, also has legislative and research components. About $60 million per year was to be used to raise awareness of the effects of second-hand smoke, and to deter smoking. Following the March 1995 federal budget, it was announced that spending on the program would be cut to about $30 million per year (McKenna,1995c). There is some evidence to suggest that the government’s anti-smoking advertising campaigns have not met their objectives (Howard, 1995), and that spending has been even less than announced (Fischer, 1995, p. B1).
Other federal anti-smoking initiatives. Tobacco Demand Reduction Strategy research includes a fourcycle survey of smoking in Canada; a study of the influence of cigarette packaging, particularly on youth; an examination of nicotine in tobacco; a series of surveys of retailers’ awareness of their responsibilities under legislation regarding tobacco sales to minors; studies on smoking behaviours and cessation of high-risk groups; research on pre- and postnatal smoking; a survey of knowledge, attitudes, and practices concerning secondhand smoke among parents of young children; and an inventory of smoking regulations in schools, health-care facilities, daycares, nursery schools, and retail and commercial establishments.
Also included in the Tobacco Demand Reduction Strategy are a number of action programs, including cooperative enforcement by the provinces and the federal government of laws on retail sales to minors; expansion of the National Clearinghouse on Tobacco and Health; education programs for 3- to 5-year-olds and their caregivers, special-needs students in grades 6 through 9, aboriginal students, students with motivational problems, low literacy levels and those learning English or French as a second language; smoking cessation programs for teenagers and for pregnant and postpartum women; a child-to-child smoking prevention program for aboriginal children aged 9 to 12 (Health Canada, undated).
Data for the 1994 Youth Smoking Survey were collected from a total of 23,700 young people aged 10 to 19 from across the country. The study found that 24% of teenagers aged 15 to 19 and 7% of those aged 10 to 14 smoked. Fifteen percent of females and 9% of males aged 13 to 14 were beginner smokers. Males smoked more than females, and the number of cigarettes smoked increased with age. Most smokers said it was easy to buy cigarettes; 86% of young smokers were brand loyal. There was a high degree of awareness of tobacco company sponsorship programs. Ninety percent of the sample (smokers and nonsmokers) believed that tobacco is addictive and that nonsmokers can be harmed by secondhand tobacco smoke (Canada, Department of Health, 1996).
New cigarette products. Since the 1950s, the cigarette filter and the development of low-tar, low-nicotine cigarettes have been the two most important product developments from a marketing/health perspective. According to the U.S. Surgeon General’s Report, the health impact of these developments is unknown (U.S., Department of Health and Human Services, 1989, pp. 31-32). Light brands of cigarettes have captured the lion’s share of the market. One study showed that 94% of light-cigarette purchasers believed that these light cigarettes were safer, milder, and less likely to induce light coughing. On the positive side, these cigarettes have more porous paper and air holes around the filter, and smokers may get less tar and nicotine from them than from regular cigarettes. On the negative side, because the tobacco in light cigarettes is little different from that in regular cigarettes, and because many smokers of light cigarettes (perhaps half) block the air holes, the tar and nicotine intake from light cigarettes may be much higher than indicated on the package. The Non-Smokers’ Rights Association feels the federal government has a responsibility to inform smokers of the true facts about light cigarettes (Gooderham, 1994, p. A6).
In recent years there have been other cigarette innovations: a cigarette that produces little smoke and no tar, ash, or smell (Fritschler, 1989, p. 137); a de-nicotined brand called Next; and a reusable cigarette (butt and relight) named Oxford (Ritchie, 1993).
The noxious and addictive ingredients in cigarettes. The 1988 U.S. Surgeon General’s Report concluded that cigarettes and other forms of tobacco are addicting, and that there are 43 carcinogens in tobacco smoke and carcinogenic nitrosamines in smokeless tobacco (U.S., Department of Health and Human Services, 1989, p. 21). In June 1993, it was announced that the tobacco companies had convinced the Canadian government not to include nicotine under drug legislation (York, 1993). April 1994 found the Non-Smokers’ Rights Association calling for regulations requiring tobacco companies to list all of the ingredients of cigarettes on the package and to regulate nicotine levels to reduce the addictiveness of smoking (Mittelstaedt, 1994a).
Congressional hearings in the United States on the addictive nature of smoking indicated that tobacco companies had long had data on tobacco addiction (Hilts, 1994, p. A13). According to a 1968 Philip Morris memo released by the U.S. Food and Drug Administration, without nicotine “the cigarette market would collapse, PM would collapse and we’d all lose our jobs and consulting fees” (Bantle, 1995).
The release of the list of additives in cigarettes in the United States, as a result of the congressional hearings, withheld in the past for proprietary reasons, brought out a much shorter list of additives in tobacco products from the Canadian industry one week later. According to Canadian tobacco manufacturers, all tobacco additives are also used in food production (Ferguson, 1994b). What was not said was that the additives are not burned when consumed as food products.
Nicotine manipulation and addiction. The 1989 launch of Next, the “de-nicotined” cigarette brand, suggested to Dr. David Kessler, head of the U.S. Food and Drug Administration (FDA), and his colleagues that the industry had the capability to manipulate the level of nicotine in tobacco products. The FDA began to study whether the tobacco industry did control the level of nicotine in its products in order to addict its customers. On the ABC News program Day One aired in February 1994, a former manager of RJR Nabisco’s cigarette operations stated that the industry manipulated the level of nicotine in tobacco products. This individual and a number of other industry insiders provided information to the FDA.
In defending these charges, the industry revealed various ways to control the nicotine level in cigarettes including the use of DAP, which regulates the amount of nicotine delivered to the smoker, and ammonia, which the industry claimed was used to enhance flavour, not increase nicotine levels (McGinley & Noah, 1995, p. 8).
In hearings, a U.S. congressional subcommittee was told that the Brown and Williamson Tobacco Company secretly developed a tobacco plant with more than twice the nicotine content of other tobacco plants. Tobacco from this type of plant was used in making five U.S. brands, including some light brands (“Cigarette firms,” 1994).
During the spring of 1996, a flood of information reached the FDA concerning what tobacco companies knew about nicotine and what product strategies they followed as a result of this knowledge. Former executives, research directors, and production managers reported that tobacco companies had conducted experiments on the impact of nicotine on the brain; that the addictiveness of nicotine was known; that when newly designed cigarettes were found to lack “impact,” their nicotine level was increased; that tobacco was processed to obtain an established level of nicotine; that cigarettes are made to predetermined nicotine levels; and that nicotine levels were designed to keep smokers addicted (Appleby, 1996, p. A5; Cornwell, 1996, p. A23; “Ex-fiancee,” 1996).
In 1994, a federal panel advising the FDA ruled that nicotine was addictive and was the substance that caused addiction to cigarettes (“Nicotine addictive,” 1994). This ruling led to an investigation by the FDA that concluded that “nicotine is a drug,” and that nicotine addiction was a pediatric disease and hence under the regulatory authority of the FDA. As a result, the FDA submitted proposals to the White House to limit tobacco sales to young people. In response, the tobacco industry announced that they would take action to curtail access of minors to tobacco products (“FDA,” 1995). Immediately tobacco companies, prosmoking groups, and advertising and trade organizations launched a court challenge against the pending FDA regulations (Cimons, 1996, p. A8).
The FDA regulations, dated August 22, 1996, require that cigarettes and smokeless tobacco be labelled as nicotine-delivery devices for persons 18 years and older. Included in the regulations are a ban on sales to people under 18 years; a photo identification requirement; a proscription on vending, except in places where those under 18 are prohibited; an interdiction on free samples and self-serve displays at retail outlets; restrictions on the media used to carry tobacco advertising and the prohibition of billboards located less than 1,000 feet from schools and playgrounds; the prohibition of tobacco brands, logos, and colours on on non-tobacco products; a ban on sponsorship of events or teams using tobacco brand names (U.S., Food and Drug Administration, 1996).
Although a Canadian tobacco spokesperson said, “no nicotine is added in Canada during the manufacturing process to boost the level of nicotine in cigarettes” (Ferguson, 1994b), this may not be the issue. According to a lawyer for the American Cancer Society, “what matters is they’re (the tobacco companies) exercising complete discretion and absolute control over the additive element” (Lynch & Bonnie, 1993, p. 60). It is perhaps not surprising that the imported brand More signals to smokers that it contains more nicotine (Ferguson, 1994a).
The results of a study “to examine the nicotine content of tobacco . . . and to determine if and how nicotine is being added to cigarettes” released in June 1995 were inconclusive (Canada, Department of Health, undated, p. 2). Although the amount of nicotine in the tobacco used in cigarettes increased by 53% between 1968 and 1995, the level of nicotine in tobacco smoke was 20% below historic highs. According to the report’s author, the results did not disprove the contention that tobacco companies keep nicotine at specific levels to make cigarettes addictive (Fischer, 1995, p. B4; Rickert, 1995).
More restrictions on places to smoke. The early 1990s have seen an increase in controls on where smoking is permitted. Ontario has banned smoking at most medical facilities (Mittelstaedt, 1993, p. A4). In February 1994, McDonald’s announced that smoking would no longer be allowed in any of its 253 companyowned restaurants in Canada, and that many of their franchised outlets would also become smoke-free (“McDonald’s,” 1994).
Plans to eliminate smoking on all international flights by Canadian Airlines, which had been put off in 1993 then shelved in June 1994 because of the fear of losing business to other airlines in Asia, were subsequently implemented (“Airline ban,” 1994). In a unique approach, Canada, the United States, and Australia agreed to ban smoking on nonstop flights between these three countries starting January 1, 1996 (“Smoking ban,” 1995).
In November 1994, the government of Ontario banned smoking in retail outlets, financial institutions, self-serve laundries, barbershops, hairdressing salons, and video arcades (Mittelstaedt, 1994b, p. A3). In March 1996, the City of Vancouver passed a bylaw, effective January 1, 1997, banning smoking in all restaurants and in public places frequented by children under 18 years of age (Vancouver, City of, 1996). Some other Lower Mainland municipalities have followed (Millerchip, 1996, p. 1). The City of Toronto banned smoking in restaurants and bars effective January 1, 1997 (Gadd, 1996c).
Supreme Court of Canada ruling. Key sections of the Tobacco Products Control Act were struck down by the Supreme Court of Canada in a judgment announced September 21, 1995. The Court ruled that Parliament had constitutional jurisdiction to legislate on tobacco advertising and promotion under its criminal law powers; the “Act is, in pith and substance, criminal law.” However, a slim majority held that the restriction on the tobacco companies’ right to advertise was an unwarranted violation of freedom of expression guaranteed by the Charter of Rights and Freedoms.
The Court unanimously held that the purpose of the TPCA was sufficiently valid and important to warrant limiting the tobacco companies’ freedom of expression, and that it was not necessary to demonstrate a causal link between the advertising of tobacco products and smoking, rather it was sufficient to infer this relationship on the basis of “logic and common sense.” However, in a five-to-four decision the Court held that the government had not shown that the prohibition of advertising was a “reasonable and justified” restriction of freedom of expression. It had not shown that measures short of a complete ban on advertising would not have been just as effective in achieving the TPCA’s objectives.
The Court distinguished between information advertising, which could be used to make brand choices, and lifestyle advertising, suggesting restrictions on lifestyle messages that are “designed to increase consumption” might be appropriate. The refusal to bring forward some 500 documents, one of which examined alternatives to a total advertising ban, may have hurt the government’s case.
As well, the court held that the government’s requirement that health warnings be unattributed infringes upon the Charter. Freedom of expression includes “the right not to say certain things.” The ban on free samples was upheld because the relationship between promotion and consumption could be logically inferred. The ban on the use of tobacco trademarks on non-tobacco products was struck down given the lack of a rational connection between prohibition and the law’s objectives. Although retail tobacco displays and event sponsorship were not addressed by the Court, they were ruled invalid because they could not be severed from other struck-down provisions.
The notwithstanding clause. Professor Howard Leeson, a resource person in the development of the Charter of Rights and Freedoms, questioned why the government did not invoke the notwithstanding clause in section 33(1) of the charter. This would have allowed the government simply to reenact the Tobacco Products Control Act. Minister of Justice Allan Rock indicated that this would be “extreme” (Leeson, 1995, p. A20).
Evidence from the trial. Canadian tobacco companies have long argued that they advertise to adult smokers in order to gain market share by means of brand switching. Evidence from the tobacco companies’ own files, produced in the Tobacco Products Control Act trial, indicates that cigarette manufacturers have conducted research and created marketing strategies with the explicit objective of targeting young starter smokers (Cohen, 1990, pp. 9-10; Cunningham, 1995; Pollay, 1990; Pollay & Lavack, 1993, pp. 267-269). As well, the tobacco companies were aware of the need to provide “reassurance about the social acceptability of smoking” (Pollay & Lavack, 1993, p. 266). Dealing with the problem of “quitters” was a subject of research and strategy (Cunningham, 1995). As one might expect, tobacco companies are strongly motivated to attract new customers and keep their current clientele, and they have taken the necessary steps to accomplish these objectives.
Happier days for tobacco advertisers. Representatives of the tobacco industry announced that they would not begin to advertise immediately, but would adhere to the TPCA while they consulted with the government (Strauss, 1995a). The truce was shortlived. On the heels of the Supreme Court ruling, a maverick American tobacco company published a provocative cigarette advertisement, in a Vancouver entertainment weekly, for a brand called Buz. Health advocates and lesbian groups protested (Pollay, 1995). On December 12, 1995, the government outlined a blueprint to reintroduce tobaccocontrol legislation (McKenna, 1995d, p. Al); the same day, the tobacco industry announced it would begin advertising again; and one week later, a self-regulating tobacco advertising code was announced (Strauss, 1995b). In late February the first cigarette advertisements began appearing on billboards and bus shelters and in newspapers. Immediately, David Dingwall, the minister of health, accused RJR-Macdonald of targeting children with rock music imagery, the Non-Smokers’ Rights Association said the industry was breaking its own code, and RJR-Macdonald declared that it was “embarrassed” because one of its outdoor advertisements was found outside a school (Gadd, 1996a).
Tobacco control: a blueprint to protect the health of Canadians. In December 1995, Minister of Health Diane Marleau responded to the Supreme Court decision with a legislative blueprint to control tobacco marketing. The proposed law would ban tobacco product advertising; prohibit the use of tobacco brands on non-tobacco products; ban testimonials and endorsements; and restrict sponsorships and the advertising of sponsored events. Self-serve displays and advertising at retail outlets and mail-order sales would be banned. Product displays would be controlled to minimize exposure. Packaging regulations would require additional toxic constituent information, a prohibition on all extraneous information and false and misleading claims, and the control of package form, size, and symbols. Eventually, tobacco product constituents and smoke emissions could be controlled. An important aspect of the new legislation was that it was to set out general prohibitions and regulatory powers allowing the governor-in-council to determine specific control measures in light of societal and scientific changes (Canada, Department of Health, 1995b). According to Eric LeGrisley of the Non-Smokers’ Rights Association, the critical element of the blueprint is the creation of a “permissive” format that would make tobacco “a de facto illegal product whose sale would only be permitted subject to specific conditions” (LeGrisley, 1996, p. 39). Despite promises of quick action, the new law was not introduced until November 1996.
Sponsorships. Arts groups reliant on tobacco money said the rules would result in cancelled events; those in favour of the ban said, “Sponsorship is as addictive as the product being advertised.” The Canadian Conference of the Arts said tobacco money accounts for less than 5% of arts income. A direct tax on tobacco, which is implemented in New Zealand and parts of Australia, was suggested as a source for arts funding (Galbally, 1994; Kirchoff, 1996).
The new tobacco industry voluntary packaging and advertising code. Responding to the ruling of the Supreme Court of Canada, and, no doubt, to the blueprint for new tobacco legislation, the Canadian Tobacco Manufacturers’ Council announced a new self-regulatory code in December 1995. Council members Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc., and RJR-Macdonald Inc. control more than 99% of the Canadian cigarette market. The code, designed to be consonant with the Supreme Court ruling, contains the following: advertising is not to be directed to those under the minimum legal age to purchase tobacco products; no advertising within 200 metres of the entrance (subsequently changed to the “edge of the property”) to a primary or secondary school; no advertising in publications with primarily a nonadult readership; advertising shall not attempt to induce non-smokers to become smokers; the only purpose of advertising is to maintain or increase market share; no portrayals of tobacco products in the context of activities attractive primarily to minors, or as necessary for enjoyment of life or social achievement; no lifestyle advertising (defined as advertising depicting people); no advertising on radio or television; sponsorship advertising may utilize corporate names and trademarks, but not depict tobacco packages; no tobacco trademarks on non-tobacco products (except tobaccorelated products, e.g., lighters) unless used in connection with a sponsored event; packages shall display one of the tobacco health warnings that were required under the Tobacco Control Act (see Mahood, 1995); the warnings are to be attributed to Health Canada, cover the bottom 20% of the principal display surface, and are no longer required to be black and white; advertising shall have a warning on the bottom 20% of billboards and the bottom 15% of other print advertisements; advertising must be pre-cleared by the Supervisory Committee set up by the Council (taken over by the Canadian Advertising Foundation in June 1996) (Canadian Advertising Foundation, 1996, p. 4); the committee will hear and rule on complaints of violations of the code (Canadian Tobacco Manufacturers’ Council, 1995).
In April 1996, the Canadian Cancer Society filed 90 complaints with the Supervisory Committee. The committee agreed that advertisements in stores near schools violated the code; the Canadian Tobacco Manufacturers’ Council immediately announced that it would change the code to permit in-store advertisements, but would encourage store owners not to have in-store signs facing outwards. The committee also upheld complaints against the use of “brand related symbols,” such as the electric guitar used in Export A Smooth ads, which were displayed without the use of health warnings (Gadd, 1996b).
Product liability suits. In January 1995, four Ontario smokers launched a class-action suit against Canada’s three largest tobacco companies. They alleged that the companies have known for years that cigarettes are both harmful and extremely addictive (Canada, Library of Parliament, 1995; McKenna, 1995a). Pre-trial legal wrangling in the case continues (McKenna,1996b).
In the United States, 16 states, some cities and counties, are suing the tobacco companies to recover the cost of treating Medicaid, Medicare, and indigent patients for tobacco-related diseases (Appleson, 1996). A classaction suit (the Castano case) seeks punitive damages on behalf of millions of current and former smokers. The trial judge’s ruling that the case could proceed was overturned on appeal, and lawyers for the plaintiffs said they would file new suits in every U.S. state (“Class-action tobacco suit,” 1996, p. B8). Following the original ruling in the Castano case, Liggett, the smallest of the big five tobacco companies, agreed to help defray Medicaid costs for people with tobacco-caused diseases. This was the first time a tobacco company had agreed to settle a product liability suit; under the agreement, Liggett could back out if the Castano case did not go ahead (Appleby, March 23, 1996, p. AS). In August 1996, a Florida court awarded a $750,00 judgment against a tobacco company (the first ever) in a product liability (“Man wins,” 1996).
The build-up to new tobacco-control legislation. As the minister of health was preparing to move forward on a new tobacco marketing law, health advocates were increasing the pressure in July 1996 by releasing the results of a survey that showed that 71% of Canadians favoured a ban on tobacco advertising (McKenna, 1996a). In September, they took out double-page newspaper ads asking the prime minister for the promised tobacco legislation that would stop the tragedy of 3 million preventable tobacco deaths (“Campaign,” 1996). Looking to show that it could police itself, the tobacco industry in October announced a $ 1 million program to stamp out illegal tobacco sales to minors, and in November disclosed voluntary restrictions on sponsorship advertising and banned paid advertising in films, television and computer games (McKenna, 1996c; “Voluntary,” 1996).
Bill C-71. In November 1996, Minister of Health David Dingwall introduced the government’s new tobacco-control legislation, Bill C-71. The proposed law is designed to help reduce smoking among youngsters. Measures include: a prohibition of tobacco advertising on radio and television, billboards, street kiosks, bus panels, and displays in stores; advertising is allowed in print publications aimed at adults and direct mail; a ban on cigarette vending and self-serve displays at retail outlets, in mail-order sales, and in contests and rebates; retailers are to be required to ask young people for photo identification; brand names and logos may take up only 10% of the display surface of advertising for sponsored events; sponsorship advertising is restricted to the time and place of the event; tobacco brand names and logos must not be placed on non-tobacco products; additional information on the toxic content of tobacco is to be placed on packages; the government is to regulate tobacco and tobacco-smoke constituents; companies making, advertising, and distributing tobacco products are to be required to provide the government with production and marketing data. Penalties under the proposed law are fines of up to $300,000 and two years in jail; $50 million is to be spent on education programs aimed at deterring youths from smoking. The specific nature of other restrictions will not be known until the government releases the regulations. Accompanying the new legislation was an announcement that federal and provincial tax increases in Ontario, Quebec, and New Brunswick will add $1.40 to a carton of cigarettes (McKenna, 1996d).
The tobacco war that has been going on in Canada for the last fifteen years is unlikely to wane. Canada will no doubt have tough tobacco controls again. The movement to eliminate smoking in all indoor public places appears to be gathering strength (“Fresh air,” 1996). It can be expected that the tobacco industry, as it has done in recent years, will fight every limitation of the marketing of their products and every new restriction of smoking. As in the past, they will manage to delay and deter, and then by means of new responses, to recapture much of their foothold.
The results of the tobacco war to date are perhaps surprising given the relative strengths of the contestants. The highly profitable tobacco oligopoly (Allen, 1993, p. 31) has the support of its unions, farmers, suppliers, distributors, and customers. The Canadian Tobacco Manufacturers’ Council is a well financed and effective lobbyist. Tobacco has had highly placed supporters in government (Kennedy, 1996; Mahood, 1995, p. 12), and the backing of huge multinational firms with which it has ownership connections. On the other side, the health lobby is a highly fragmented, loosely organized amalgam of government agencies and health organizations (which have a multitude of other health-related objectives) plus anti-smoking lobby groups. The health/antismoking lobby has limited funding and the support it receives from elected officials shifts with changing political priorities and the relative influence of tobacco’s supporters.
The seesaw nature of the tobacco wars will likely be ongoing. There is little doubt that governments will continue to be under ongoing pressure to deal with the smoking issue. Every few months more evidence of the health consequences of smoking is published. Recent studies indicate that smoking is related to cervical cancer (Immen, 1996b), and infertility among females (Immen, October 24, 1996, p. A9); to crib death (“Smoking blamed,” 1996), and vision impairment (Immen, 1996a); and most importantly, to cause genetic damage in lung cells that is identical to malignant tumors of the lung (“Study,” 1996).
It is by no means obvious who will win the tobacco war. However, with two recent studies showing the incidence of smoking among young people rising dramatically, a new long-term market for cigarettes may well have been created (Canadian Council on Smoking and Health, 1996, pp. 9-10; Taylor, 1994). Canada’s new tobacco marketing legislation is merely a waystation on a long journey. Health and anti-smoking lobbyists will continue to look for ways to curtail the promotion and sale of tobacco products and the places where smoking is permitted, just as the tobacco companies will search for ways to market and promote their products.
Some Lessons from the Recent History of Tobacco Control in Canada
1. Advances are made in slow, uneven steps, but progress is made over time. The tobacco industry yields ground grudgingly and then advances whenever opportunities are seen.
2. History repeats itself. The industry code from the 1970s is repeated in the 1980s and 1990s; when the tobacco companies are found to have abrogated their own code they blame the actions on others and say they are embarrassed. When threatened by regulation, the companies say they will move their manufacturing out of Canada, citing illusory economic benefits.
3. The industry will do whatever it takes to promote their product (this is not unexpected, as all managers do the same thing). Amoral behaviour is the norm: when taxes are too high, export your product in quantities that you know the U.S. market cannot absorb but are likely to be smuggled back into Canada, then support retailers’ cry for lower taxes. When advertising is banned, use media advertising to promote sponsored events far removed in time and place from the sponsored event. When you can’t use your brand name in promotions, incorporate companies in the names of your brands. When scientists say that nicotine is addictive, say there isn’t scientific consensus. When you want to target youngsters, implement lots of sophisticated research and design marketing programs to serve the needs of the identified market, but say you are just trying to attract smokers from other brands. When you are not supposed to advertise to young people, carefully select your sponsorship vehicles so that you maximize your exposure to young people.
4. It may be easier to attack the problem locally than nationally. At the national level, the industry has solid connections with national political parties and a sophisticated lobbying operation. The industry may have fewer connections and less power at the local level.
5. It may be more effective to deter smoking than to deter the sale of cigarettes. Fewer places to smoke mean fewer opportunities to smoke and thus fewer cigarettes smoked. The restriction on places to smoke sends a signal that smoking is socially deleterious and unacceptable.
6. Access by young people to cigarettes at retail outlets is presently not well controlled (most children who want to buy cigarettes can). Only by rigorous and continuous efforts, including test purchases by minors, can access be curtailed. Licensing tobacco-product retailers and removing retailers’ licences if they sell to minors may reduce minors’ access to the products.
7. Tobacco people will always seek the moral high ground in the argument about controlling the marketing of their product, putting forward issues such as “freedom of speech,” “consumers’ right to information,” “consumers’ freedom of choice,” and “confiscation of commercial assets.”
8. While there have been successes, the antismoking/health lobby/government coalition is an awkward entity to deal with the powerful and agile tobacco industry.
9. Tobacco companies represent multinational and multiproduct power, and they will use their economic clout to pressure governments to achieve their ends.
10. The Canadian and U.S. tobacco markets are interactive. Events (such as cigarette ingredient, nicotine control, and product liability suits) in the United States trigger actions in Canada.
11. Nobody’s salary depends on the reduction of smoking in Canada.
Demarketing Smoking and Tobacco Products
The demarketing of tobacco has to be thought about in terms of an integrated marketing mix. Although when dealing with the tobacco marketing issue, governments, the courts, anti-smoking lobby groups, and the media have tended to treat one factor at a time (concentrating on advertising, pricing, or retailing), tobacco manufacturers have developed marketing strategies, identified target markets, and created marketing plans to exploit their opportunities. They know that it is not packaging or price or sponsorships individually that sell cigarettes, but the combination of the various aspects of the marketing mix that attract and maintain customers. Tobacco demarketing must be carried out in the same way.
An effective anti-smoking program must be built on the solid foundation of consumer behaviour research. Tobacco companies have spent years building a base of knowledge upon which to formulate their marketing strategies (see Pollay, 1990). They have segmented the market by demographic and psychographic analysis and designed strategies to stimulate smoking initiation and continuance. Each component of the marketing mix has been carefully tailored to generate maximum sales.
To be effective, those responsible for public health must be prepared to follow the same path as their adversaries. They must continue to build upon their understanding of why children start to smoke and why teenagers and adults continue to consume tobacco products. They must also have a firm grasp of how the marketplace and their competitors operate. It is upon this knowledge that demarketing strategies must be created.
One of the keys to success is organizational unity among the disparate health, anti-smoking, and government agencies. Unless those who want to change the smoking behaviour of Canadians agree on objectives and methods, the limited resources will not be used to maximum effectiveness. One way to achieve this organizational unity would be to form a government corporation, with guaranteed funding through a tax on smoking (see Vaillancourt’s concept of a surcharge-charge on health premiums ) and an extensive tax-exempt fundraising program. This corporation would have to be run by people with significant track records in the area of consumer package goods. In this way, a long-term, professionally managed demarketing program could be developed.
The corporation would be free (as far as possible in this politically charged area) from the pressures that politicians are under from the tobacco interests and rival caucus concerns to sustain its demarketing efforts. It would carry out a demarketing mix including price (tax levels), packaging, promotion (perhaps using sponsorships to reach children and teens), distribution, health warnings, school programs, cessation methods, and so on, with specific, measurable short- and long-term goals (see the health objectives in U.S., Department of Health and Human Services, 1989, pp. 17-18).
Although action is currently being taken on all these fronts, there is little evidence of a concerted, effective program designed to maximize results. To give three examples of this lack of concerted action, the Tobacco Products Control Act outlawed advertising but allowed sponsorship promotion at a time when tobacco manufacturers in the U.S. and the U.K., and perhaps Canada, had already shifted the majority of their expenditures to sales promotion; tax increases drove up retail prices in the early 1990s to a point where significant segments of the market moved to the contraband sector; and the government’s mass-media anti-smoking campaigns have been characterized by confusion over their objectives and controversy over their execution.
What is required is a total demarketing campaign, with each component balanced to achieve specific results and aimed at specific target markets. The notion of demarketing was created by Philip Kotler and Sydney Levy in the early 1970s to evaluate strategies where demand exceeded supply (Kotler & Levy, 1971) and has only recently become a social marketing term applied to the discouragement of consumption as a function of social values (Bennett, 1995, p. 80). Mahood, in a recent article in Tobacco Control, identifies cigarette health warnings on packages as part of a demarketing program for tobacco products (1995, p. 11).
A management team with experience in the highly competitive consumer products industry would provide the tactical capability needed to counter the practices of the tobacco manufacturers. It is clear from the recent history of the Canadian tobacco industry that government initiatives have been muted and thwarted by the crafty tactical moves of cigarette companies (e.g., selfregulatory codes to delay legislation and more or less permanent media advertising of sponsored events). The government’s responses to these moves have been slow and clumsy. In some cases, misinformation has been used to delay projects (the length of time needed to institute new package warnings, the economic impact of moving cigarette manufacturing out of Canada). Continuous research designed to measure the influence of individual parts of the demarketing mix and the overall campaign and to track tobacco strategies is required to determine the campaign’s effectiveness and keep its management accountable. A tobacco demarketing company would be able to move quickly to counter tobaccocompany initiatives and might slow the tobacco companies’ marketing activities by forcing them to respond to demarketing tactics.
To keep the operating cost to a minimum, this organization might take advantage of the voluntary energies of the many Canadians who want to see the marketing of tobacco minimized and smoking constrained. There are several areas where volunteers could participate. Because access to cigarettes is a major factor in smoking among the young, and because it is likely that no government will be able to police effectively at retail outlets, a system of public monitoring could be tried. Volunteer groups could identify retailers who sell to minors and report them to government agencies for action. Publicity could be used to encourage recalcitrant governments to act. These volunteer groups might also be used to monitor and report on tobacco-company marketing tactics so that demarketing responses might be quickly put in place. Perhaps the most effective long-term strategy for dealing with smoking is restricting where smoking is allowed. The tobacco industry has shown itself capable of organizing the institutions affected (retailers, the hospitality industry, unions) to lobby local elected officials to water down or turn down proposed smoking controls. Volunteers might be organized to campaign for nonsmoking legislation at the local level. Typically, volunteer organizations work best when someone with experience and access to funds gets them off the ground. This role could be played by the tobacco demarketing company.
Placing the responsibility for tobacco demarketing in the hands of a quasi-independent corporation would allow the various levels of government to concentrate on licensing tobacco retailers, providing readily available judicial processes for aggrieved consumers to have recourse against tobacco companies, removing the legislated underpinnings that allow tobacco products to be sold as ordinary consumer products, creating mechanisms to prevent tobacco manufacturers from exporting tobacco products that are likely be smuggled back into Canada, and eliminating smoking in public places.
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Thanks to Eric LeGrisley and Rob Cunningham for their comments on an earlier draft, and to Dan Burnett for providing libel advice.
Address all correspondence to Robert G. Wyckham, Faculty of Business Administration, Simon Fraser University, Burnaby, BC, Canada, V5A IS6.
Copyright Administrative Sciences Association of Canada Jun 1997
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