Tobacco must remain hidden

Judge upholds provincial law

Darren Bernhardt

Saskatchewan News Network; Saskatoon StarPhoenix
Thursday, September 26, 2002

SASKATOON -- Tobacco giant Rothman's Benson & Hedges Inc. has lost its court battle to have Saskatchewan's tobacco control legislation struck down and has been ordered to pay all costs of the proceedings.

In his judgment, handed down Wednesday morning, Queen's Bench Justice Ron Barclay stated "the social problems created by tobacco consumption are complex and that innovative legislation solutions are required to address them effectively. This has, in fact, been accomplished by the provincial government in enacting The Tobacco Control Act.

"Put bluntly, tobacco kills."

Rothman's, Canada's second largest tobacco firm, challenged the provincial law restricting cigarette advertising in a special court hearing at Court of Queen's Bench on June 18.

The company claimed the provincial act is tougher than federal anti-smoking legislation and is unfair because it infringes their rights under the Canadian Charter of Rights and Freedoms.

"They're disappointed, I'm disappointed," said Neil Gabrielson, the Saskatoon lawyer representing Rothman's, adding "it's too early to tell" if an appeal will be filed.

During the hearing, Gabrielson cited federal tobacco laws which state "a retailer of tobacco products may post, in accordance with the regulations, signs at retail that indicate the availability of tobacco products and their price."

That creates a positive right to display and advertise tobacco products and the provincial act limits that right, he said.

The Charter issue was set aside as a separate issue to await a decision on the challenge to the provincial legislation.

If the legislation was struck down, there would have been no need. If the company does appeal to the Supreme Court and if its argument again fails, the Charter challenge may be invoked, said Gabrielson, who has had no instructions from Rothman's as of yet.

In his decision, Barclay ruled the province is within its rights to protect the health of young people.

"The common thread running through the Provincial Act is a concern for public health and in particular a concern for protecting young Canadians from the hazards of tobacco consumption as it poses serious risks to their health," he stated, adding it "does not conflict with the federal legislation."

The provincial Tobacco Control Act, proclaimed in March of this year, is "world precedent-setting," said Robert Ferguson of the Lung Association of Saskatchewan (LAS). The law prohibits the display of tobacco products in places accessible to people under 18. It is the first of its kind anywhere and has since been copied by Manitoba (where it will become effective in about 14 months) and as far away as Ireland.

"By preventing the display of tobacco products, we are finally saying to the public that this is a unique and extremely dangerous substance," said Ferguson. "We definitely should not be encouraging and promoting ... the sale of the product known to be the biggest cause of preventable illness and death in our country and province.

"Tobacco kills and injures when used exactly as it is designed and intended to be used."

Provincial Health Minister John Nilson said the purpose of the legislation is to "denormalize" the use of tobacco in society "and to stop the insidious effect of tobacco on the health of Saskatchewan people. Tobacco is very addictive and we do not want young people to grow up viewing smoking as a normal or accepted activity."

Brian Graham, CEO and president of LAS, agreed that having tobacco in the open encourages the public to view it as "innocuous as the gum and chocolate bars" also on display in stores.

An appeal by the company would not come as a surprise, said Nilson, who is confident the legislation would stand up to further challenges.

"We know that tobacco companies are ready and willing to take cases right to the highest courts of the land, whether its the United States or Canada or the European courts. But I think we have a very well-reasoned judgment," he said. "We fully intend to keep defending these goals and to protect the health of our youth. And I'm pleased to see Justice Barclay has identified the fact that we, as a provincial government, can work together with the federal government and allow both of us to pass legislation in a particular area."

Rob Cunningham, an Ottawa-based lawyer and senior policy analyst with the Canadian Cancer Society called the decision "a significant defeat for the industry."

"The tobacco industry, as it always does, fights hard to invalidate significant measures that are going to affect their sales. Saskatchewan is really the model that the industry would like to knock down," he said, chalking the victory up as another pioneering accomplishment by the province to go with its historical decision to introduce Medicare so many years ago.

© Copyright  2002 The Leader-Post (Regina)