A province can regulate tobacco packaging

A province can regulate tobacco packaging Rob Cunningham 1 February 17, 2015 Summary Canadian provinces have a long history of regulating tobacco packaging with measures going beyond federal requirements. There is no legal impediment for a province to regulate tobacco packaging on the basis that the provincial regulation would be more restrictive than federal legislation. There has been no impediment in the past, and there is none today. Introduction Federal regulations require that health warnings cover the top 75% of the front and back of packages of cigarettes and little cigars. There is a minimum warning size of 50% for some other tobacco products, such as roll-your-own tobacco, chewing tobacco and tobacco sticks. A whole series of potential measures are available for provinces to regulate tobacco packaging, even without taking into consideration plain packaging. Such measures include standardizing the package shape/format, banning superslim shaped packages, banning octagonal (8-sided) packages, requiring a minimum size for package warnings, and other measures. While such potential provincial measures would be more restrictive than existing federal legislation, there is longstanding experience of provinces adopting measures going beyond federal legislation. Trend of increased tobacco package regulation There is a continuing international trend towards increased government regulation of tobacco packaging. This trend includes increasing the size of package health warnings, and requiring pictures as part of health warnings. 2 1 Rob Cunningham, BA, LLB, MBA is a lawyer and Senior Policy Analyst for the Canadian Cancer Society. He represented the Canadian Cancer Society as co-counsel in the Quebec Superior Court, the Quebec Court of Appeal and the Supreme Court of Canada in the tobacco industry s constitutional challenge to federal tobacco legislation that restricted advertising, banned sponsorships and required picture warnings covering 50% of the package front and back. The Society had intervener status in this constitutional challenge that was ultimately dismissed by a unanimous Supreme Court of Canada. He is also other of the book Smoke & Mirrors: The Canadian Tobacco War, La guerre du tabac: l expérience canadienne. 22 Canadian Cancer Society, Cigarette Package Health Warnings: International Status Report, Fourth Edition, September 2014.

2 It is well established that larger, more prominent warnings are more effective. International guidelines adopted under the international tobacco treaty, the WHO Framework Convention on Tobacco Control, state that: 7. [ ] Evidence demonstrates that the effectiveness of health warnings and messages increases with their prominence. In comparison with small, text-only health warnings, larger warnings with pictures are more likely to be noticed, better communicate health risks, provoke a greater emotional response and increase the motivation of tobacco users to quit and to decrease their tobacco consumption. 3 There is growing recognition that there should be a minimum size for package warnings (minimum height and minimum width in millimeters) in addition to a minimum percentage of the package front and back. This is in part a response to more recent tobacco industry packaging strategies that reduce the prominence of warnings, such as superslim packages and octagonal packages. On superslim packages, for example, the appearance of the warning is distorted and less visible, and the font size for text becomes very small thus affecting legibility. (There are increasing calls for superslim cigarettes to be banned altogether.) The new European Union (EU) Directive, applying to 28 EU countries, specifies that warnings on cigarette packages must have a minimum height of 44mm, a minimum width of 52mm, as well as a minimum height of 16mm for the lateral side. 4 This is in addition to specifying that warnings must cover at least 65% of the package front and back. 5 The Directive also requires cigarette packages to be cuboid in shape. 6 Australia has minimum cigarette package dimensions, which in turn results in minimum dimensions for warnings. Australia has a minimum package height of 85mm, a minimum width of 20mm, and a minimum height for the lateral side of 20mm. 7 Australia also specifies that the sides of cigarette packages must meet at 90 degree angles, which in effect prohibits beveled edges. 8 More broadly, Australia has required plain packaging. The United Kingdom, Ireland, France and New Zealand are in the process of finalizing plain packaging requirements; Norway and Finland are actively considering plain packaging. 9 Uruguay allows only one brand variant per brand 3 Conference of the Parties to the WHO Framework Convention on Tobacco Control, Guidelines for implementation of Article 11 (Packaging and labelling of tobacco products) of the WHO Framework Convention on Tobacco Control, para 7. 4 Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC ( EU Directive ), Art. 9.3, 10.1(g). 5 EU Directive, Art. 10. 6 EU Directive, Art. 14.1. 7 Tobacco Plain Packaging Regulations 2011, SLI 2011 No. 263 (Australia), in regulation 2.1.1, provide dimensions for packages. In Australia, cigarette package health warnings must cover at least 75% of the package front and 90% of the package back. 8 Tobacco Plain Packaging Act, No. 148, 2011 (Australia), Art. 18. 9 Canadian Cancer Society, Plain Packaging Overview February 13, 2015.

3 family (thus there is only one Marlboro, not many brand variants such as Marlboro Red, Marlboro Gold, Marlboro Silver, and Marlboro Menthol). 10 Provinces have longstanding legislative experience on tobacco packaging In Canada, there has been longstanding provincial legislative experience regarding tobacco packaging, including the following: Requiring package health warnings (BC, ON) o British Columbia by regulation required a health warning on tobacco packages between 1972 and 1989, at a time when there was no federal package warning requirement. Between 1989 and 1994, BC regulation required the same package warnings as were required federally, incorporating by reference federal requirements. 11 o Ontario has had provincial regulations from 1994 to the present (2015) requiring the same package health warnings as are required federally. 12 o Other provinces (MB, QC, NS) have had regulatory authority to require provinciallymandated package health warnings, but this regulatory authority has not been used. 13 Establishing regulatory authority for plain packaging, though this regulatory authority has not been used (BC, MB, ON, QC, NS). 14 Requiring minimum quantities per package. The federal government has had a minimum quantity for sale of 20 for cigarettes (since 1994) 15 and for little cigars and blunt wraps (since 2010). 16 Several provinces have gone beyond federal provisions: o general Quebec requires all tobacco products (eg cigars, bidis, tobacco sticks) to be sold in a minimum of 10 units, though this does not apply if the price is less than $10.00, 17 and though for cigarettes the minimum quantity is 20. 18 o bidis - Alberta requires bidis to be sold in a minimum quantity of 20 (effective June 1, 2015). 19 10 Ministry of Public Health Ordinance No. 466 on Packaging and Labelling, 2010 (Uruguay). 11 Tobacco Product Regulation, B.C. Reg. 258/72, am. B.C. Reg. 347/89, repealed by B.C. Reg. 216/94. 12 Smoke-Free Ontario Act, S.O. 1994, c.10, s.5.1; General Regulations, O. Reg. 613/94, s.9; General Regulations, O Reg 48/06, s.9. 13 The Non-Smokers Health Protection Act, C.C.S.M. c. N92, s.9(1)(e); Smoke-Free Ontario Act, S.O. 1994, c. 10, ss.5(1), 19(1)(d), 19(4); Tobacco Act, R.S.Q., c. T-0.01 (previously S.Q. 1998, c.33), s.28; Tobacco Access Act, S.N.S. 1993, c.14, s.9(2). In Quebec, provincial regulations regarding packaging must be harmonized with federal law. 14 Tobacco Control Act, R.S.B.C. 1996, c. 451, ss. 2(1)(a), 11(2)(a); The Non-Smokers Health Protection Act, C.C.S.M. c. N92, s.9(1)(e); Tobacco Act, R.S.Q., c. T-0.01 (previously S.Q. 1998, c.33), s.28; Tobacco Access Act, S.N.S. 1993, c.14, s.9(2). In Quebec, provincial regulations regarding packaging must be harmonized with federal law. 15 Tobacco Sales to Young Persons Act, S.C. 1993, c.5, s.7.1, enacted by S.C. 1994, c.37, s. 11. See also Tobacco Act, S.C. 1997, c.13, s.10. 16 Tobacco Act, S.C. 1997, c.13, s.10, am S.C. 2009, c.27, s.10. 17 Regulation under the Tobacco Act, C.Q.L.R. c. T-0.01, r. 1, s.6. 18 Tobacco Act R.S.Q., c. T-0.01 (previously S.Q. 1998, c.33), s.19.

4 o tobacco sticks New Brunswick requires tobacco sticks to be sold in a minimum quantity of 15. 20 Newfoundland and Labrador previously did so. 21 o little cigars SK (2010) and ON (2010) have a minimum quantity for the sale of little cigars of 20 and have a broader definition of little cigars than the federal definition. The federal definition of little cigars includes a cigar with a cigarette filter while the Saskatchewan and Ontario definitions apply to any type of filter. 22 Saskatchewan had previously (2004) adopted a requirement of a minimum quantity for little cigars of 5, though little cigars were not defined at that time. 23 o cigars Alberta requires cigars weighing more than 1.4g and less than 5g (excluding the weight of any mouthpiece or tip) to be sold in a minimum quantity of 4 if the unit retail price per cigar is $4.00 or less (effective June 1, 2015). 24 o cigarettes in 1993, several provinces (NB, NS, NL) enacted minimum quantities for the sale of cigarettes (15 or 20, depending on the province). 25 Later, a federal minimum quantity of 20 for cigarettes was adopted and came into force on November 24, 1994. 26 It is worth noting that, in effect, a minimum quantity per package also increases the minimum package size, just as a minimum warning size in millimeters may increase the minimum package size. There are many other examples of where provincial tobacco legislation has gone beyond federal legislation: Banning vending machines (MB, ON, QC, NS, PEI, NWT, NU), though federally vending machines are only partially restricted and allowed in bars. 27 19 Tobacco Smoking and Reduction Regulation, Alta Reg 240/2007, s.9.1, enacted by Alta Reg. 201/2014, s.11. 20 Tobacco Sales Act, S.N.B. 1993, c.t-6.1, s.4. 21 Tobacco Control Act, S.N.L. 1993, c. T-4.1, s.4 (the minimum package size provision in s.4 was later repealed). 22 The Tobacco Control Act, S.S. 2001, c.t-14.1, s.2(c.2), enacted by S.S. 2010, c.34, s.3; Smoke-Free Ontario Act, S.O. 1994, c.10, s.6.1, enacted by 2010, c. 1, Sched. 27, s. 2 (1); General Regulation, O. Reg. 48/06, s.1.1, enacted by O. Reg. 237/10, s. 1. 23 The Tobacco Control Amendment Act, 2004, S.S. 2004, c.51, s.4, enacting s. 5(2) of The Tobacco Control Act. 24 Tobacco Smoking and Reduction Regulation, Alta. Reg. 240/2007, s.9.1, enacted by Alta. Reg. 201/2014, s.11. 25 Tobacco Sales Act, S.N.B. 1993, c.t-6.1, s.4; Tobacco Access Act, S.N.S. 1993, c. 14, s. 7; Tobacco Control Act, S.N.L. 1993, c. T-4.1, s.4. More provinces subsequently established a minimum quantity of 20 for the sale of cigarettes. 26 Tobacco Sales to Young Persons Act, S.C. 1993, c.5, s.7.1, enacted by S.C. 1994, c.37, s. 11. See also Tobacco Act, S.C. 1997, c.13, s.10; Tobacco Control Act, S.N.L. 1993, c. T-4.1, s.4 (the minimum package size provision in s.4 was later repealed). 27 Eg Tobacco Control Act, 1994 S.O. 1994, c. 10, s.7; Tobacco Access Act S.N.S. 1993, c., s.6; Tobacco Control Act S.Nu. 2003, c.13, s.12. For federal vending machine restrictions, see Tobacco Act, S.C. 1997, c.13, s.12. For a summary of prohibitions on locations of sale, see Ontario Tobacco Research Unit, Prohibition of Tobacco Sales in Specific Places: Monitoring Update June 22, 2012.

5 Requiring a minimum sales to minors age of 19 (BC, ON, NB, NS, PEI, NL, NU), though the federal age is 18. Restricting flavoured tobacco. Alberta 28 and Ontario Bill 45 29 contain restrictions on flavoured tobacco going far beyond federal restrictions on flavoured tobacco. Further, Ontario s initial ban on flavoured little cigars (2010) has had a definition of little cigars that goes beyond the federal definition. 30 Restricting sales, marketing and use of e-cigarettes, including e-cigarettes without nicotine (NS, Ontario Bill 45). 31 There are no federal restrictions on e-cigarettes without nicotine. Banning tobacco sponsorship. Quebec (1998) enacted a ban on tobacco sponsorship prior to the enactment of a federal ban. 32 Banning brand-stretching. Quebec in 1998 adopted a ban on all tobacco brand names, logos and trademarks on non-tobacco goods (e.g. T-shirts, sport bags), while federal legislation allows tobacco brand names, logos and trademarks on certain non-tobacco goods, such as lighters and matches. 33 Restricting tobacco advertising. BC banned tobacco advertising in 1972, before replacing the ban with partial restrictions from 1972 to 1994 (the partial restrictions included a ban on billboard advertising, and requiring a health warning to appear on permitted advertising). 34 28 Tobacco Reduction (Flavoured Tobacco Products) Amendment Act, 2013, S.A. 2013, c.25, proclaimed into force on November 13, 2014 effective June 1, 2015; Tobacco Reduction Amendment Regulation, Alta. Reg. 201/2014. 29 Bill 45, Making Healthier Choices Act, 2014, first reading November 24, 2014. 30 Smoke-Free Ontario Act, S.O. 1994, c.10, s.6.1, enacted by 2010, c. 1, Sched. 27, s. 2 (1). General Regulation, O. Reg. 48/06, s.1.1, enacted by O. Reg. 237/10, s. 1. The federal definition of little cigars includes a cigar with a cigarette filter while the Ontario definition applies to any type of filter. 31 An Act to Amend Chapter 12 of the Acts of 2002, the Smoke-free Places Act, and Chapter 14 of the Acts of 1993, the Tobacco Access Act, S.N.S. 2014, c. 58; Ontario Bill 45, Making Healthier Choices Act, 2014, first reading November 24, 2014 (Schedule 3 of Bill 45 would enact the Electronic Cigarettes Act, 2014). 32 Quebec adopted such a sponsorship ban on June 18, 1998 effective Oct. 1, 2003 (Tobacco Act R.S.Q., c. T-0.01 (previously S.Q. 1998, c.33), ss.22, 23, 72, 73), whereas at the time (June 1998), the federal Act contained only restrictions on sponsorship advertising but was amended on Dec. 10, 1998 to include a total ban as of Oct. 1, 2003: An Act to amend the Tobacco Act, S.C. 1998, c.38. 33 Tobacco Act, R.S.Q., c. T-0.01 (previously S.Q. 1998, c.33), s.27; Tobacco Act, S.C. 1997, c.13, s. 26(1). 34 Tobacco Advertising Restraint Act, S.B.C. 1971, c. 65, repealed by Tobacco Advertising Restraint Act Repeal Act, S.B.C. 1972 (Second Sess.), c. 12; Tobacco Products Act, S.B.C. 1972 (Second Sess.), c. 13 (later renamed Tobacco Sales Act); Tobacco Products Regulation, B.C. Reg. 258/72, am. B.C. Reg. 347/89, repealed by B.C. Reg. 216/94; Tobacco Sales Act, R.S.B.C. 1996, c. 451, s. 11(2).

6 There were no federal restrictions on tobacco advertising until 1989. 35 Quebec s tobacco advertising restrictions, enacted in 1998, go beyond federal restrictions. Quebec does not have exemptions allowing advertising in direct mail or in places where minors are prohibited by law (e.g. bars), though federal legislation contains such exemptions. 36 Quebec has also required health warnings on permitted print advertising, 37 though there is no such federal requirement. Restricting tobacco advertising and displays at point of sale. All provinces and territories ban visible displays at retail, though there is no such federal ban despite federal regulatory authority to do so. All provinces and territories restrict or ban advertising signs at point of sale going beyond federal restrictions. For example, federal provisions do not limit the quantity or size of permitted signs, but there are provincial/territorial restrictions. Federal provisions allow brand names on signs in any font style, 38 but 9 provinces/territories (BC, SK, MB, ON, NB, NS, PEI, NL, YT) ban brand names and other brand trademarks on such signs, 39 while two territories (NWT, NU) do not permit any price signs at retail. 40 Alberta allows brand names on signs, but requires brand names to appear in black text on a white background in a standard appearance. 41 Quebec allows brand names on signs, but only in black text in a white background. 42 Banning self-service displays. Nova Scotia adopted a ban on self-service displays (1993) 43 before a federal ban was adopted and in effect on November 24, 1994. 44 (Other provinces and territories subsequently adopted a ban on self-service display bans as part of retail display bans). 35 Tobacco Products Control Act, R.S.C. 1985 (4th Supp.), c.14, formerly S.C. 1988, c.20, in effect January 1, 1989 with some transition periods. 36 Tobacco Act R.S.Q., c. T-0.01 (previously S.Q. 1998, c.33), s.24, Tobacco Act, S.C. 1997, c.13, s. 22(2). 37 Regulation respecting the warning attributed to the Minister of Health and Social Services concerning the harmful effects of tobacco on health, R.R.Q., c. T-0.01, r. 2. 38 Tobacco Act, S.C. 1997, c.13, s. 30(2). 39 Tobacco Control Regulation, B.C. Reg. 232/2007, s.4.32; The Tobacco Control Regulations, R.R.S. C- T-14.1, s.3.1; Non-Smokers Health Protection Regulation, Man. Reg. 174/2004, s.10.2; General Regulation, O. Reg. 48/06, s.7; General Regulation, N.B. Reg. 94-57, s.6.1; Tobacco Access Regulations, N.S. Reg. 9/96, s.3d; General Regulations, P.E.I. Reg. EC414/05, s.1.2; Tobacco Control Regulations, N.L.R. 119/09; Tobacco Products Sales Regulation, Y.O.I.C. 2010/27, s.2. 40 Tobacco Control Act, S.N.W.T. 2006, c 9, s.5; Tobacco Control Regulations, N.W.T. Reg. 101-2006; Tobacco Control Act, S.Nu. 2003, c 13, s.8; Tobacco Control Regulations, Nu. Reg. 011-2007. The Northwest Territories and Nunavut statutes prohibit advertising signs at retail unless permitted by regulation, but no exceptions are allowed by regulation. 41 Tobacco and Smoking Reduction Regulation, Alta. Reg. 240/2007, s.5. 42 Regulation under the Tobacco Act, R.R.Q., c. T-0.01, r. 1, s.2. 43 Tobacco Access Act, S.N.S. 1993, c. 14. 44 Tobacco Sales to Young Persons Act, S.C. 1993, c.5, s.7.1, enacted by S.C. 1994, c.37, s. 11. See also Tobacco Act, S.C. 1997, c.13, s.10.

7 Establishing far more detailed reporting requirements for additives and toxic emissions, including public disclosure (BC, 1998) than existed federally. 45 Federal additive and toxic emission reporting requirements were adopted later (2000) and without a requirement for public disclosure. 46 Other examples of provincial legislation going beyond federal legislation include requiring health warning signs to be posted at retail (e.g. BC, NB, NS, NL, NU) and banning candy cigarettes and other confectionary resembling a tobacco product (YT, NU). 47 Court cases have consistently upheld provincial authority to enact tobacco legislation more restrictive than federal legislation Court cases are clear provinces have authority to adopt tobacco legislation that is more restrictive than federal tobacco legislation: In 2005, in the key case of Rothmans, Benson & Hedges Inc. v. Saskatchewan, 48 a unanimous (9:0) Supreme Court of Canada upheld Saskatchewan s ban on visible tobacco displays at retail, a ban that went far further than federal restrictions on tobacco promotion. In 1998, the Nova Scotia Court of Appeal upheld a minimum provincial tobacco sales to minors age of 19, which was higher than the federal minimum age of 18. 49 In 1972, the BC Supreme Court upheld a provincial ban on tobacco advertising at a time when there were no federal restrictions on tobacco advertising. 50 The Supreme Court of Canada has recognized that tobacco legislation is an area of concurrent federal/provincial responsibility. In 1995 in RJR-MacDonald Inc. v. Canada (Attorney General), 51 the Supreme Court stated at p.249: Indeed the Act [banning tobacco advertising] forms only one part of a comprehensive and multi-faceted federal and provincial program to control and reduce the consumption of tobacco. In 1997 in R. v. Hydro-Québec, 52 the Supreme Court stated, at p.299: 45 Tobacco Testing and Disclosure Regulation, B.C. Reg. 282/98. 46 Tobacco Reporting Regulations, SOR/2000-273. 47 Smoke-free Places Regulation, 2009, Y.O.I.C. 2009/99, s.11; Tobacco Control Act, S.Nu. 2003, c.13. 48 [2005] 1 S.C.R. 188. 49 R. v. Sobey s Inc. (1998), 172 D.L.R. (4 th ) 111 (N.S.C.A.), per Cromwell JA, as he then was. 50 Benson & Hedges (Canada) Ltd. v. Attorney General of British Columbia (1972), 27 D.L.R. (3d) 257 (B.C.S.C.). 51 [1995] 3 S.C.R. 199. 52 [1997] 3 S.C.R. 213.

8 The two levels of government frequently work together to meet common concerns. The cooperative measures relating to the use of tobacco are fully related in RJR-MacDonald, supra. Recently, on February 6, 2015, in Carter v. Canada (Attorney General), 53 at para. 53, the Supreme Court of Canada reaffirmed that tobacco legislation (cited in RJR-MacDonald) is an example of health legislation that is of concurrent federal/provincial jurisdiction: Health is an area of concurrent jurisdiction; both Parliament and the provinces may validly legislate on the topic: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 32; Schneider v. The Queen, [1982] 2 S.C.R. 112, at p. 142. There is no trademark issue of concern Federal trademark legislation gives the trademark owner the right to register the trademark and to prevent others from using the trademark without permission. Federal trademark legislation does not give the trademark owner a right to have unrestricted use of the trademark. Any use of the trademark is subject to other laws. Provincial legislation has long restricted the use of tobacco brand names and other tobacco trademarks. Examples (discussed previously above) include Banning tobacco trademarks from appearing in prohibited advertisements such as on billboards, buses, or signs in bars. Banning tobacco trademarks appearing on non-tobacco goods, such as T-shirts, sport bags, baseball hats, lighters, matches and ashtrays. Banning tobacco packages (including packages with tobacco trademarks) from being displayed at retail. Banning vending machines thus banning tobacco trademarks from being depicted on vending machines. Banning tobacco trademarks from being depicted on permitted signage at retail, or only allowing brand names to appear in a standard appearance in black text on a white background (and not the trademarked font style/colour(s) for the brand name). Establishing regulatory authority to require plain packaging, which would prohibit trademarks from appearing on packages (except for the brand name in a standard font style, size/colour(s)). To date such regulatory authority has not been used. Regarding a minimum size for package warnings, there would be no adverse impact on tobacco companies to use the branded part of the package. On the front and back of the package, the proportionate sizes would still be 75% for the warning and 25% from the branded portion. For the branded part, the size in fact would probably increase in terms of square millimeters. The same would the case if superslim formats were banned. Consumers would be receiving the same information but more prominently. Consumers would not be receiving less information. 53 2015 SCC 5.

9 It is worth noting that various package shapes (e.g. superslim packages, and octagonal packages with beveled edges) are not unique to a single tobacco company but rather are used by all three major tobacco companies in Canada. Even if a minimum size for package warnings would affect certain trademarks and/or package formats, a province could do this. Provinces have previously affected package formats by no longer permitting certain tobacco products to be sold in units of 1, 2, 5, 10 etc by requiring greater minimum quantity for sale. The package is not the product the package contains the product, whether cigarettes or other tobacco products. The tobacco package is a type of advertising. Restricting or banning trademarks on tobacco packaging would be a restriction on tobacco advertising that would be merely an extension of other provincial laws restricting tobacco advertising. Further, restricting or banning trademarks on tobacco packaging would not affect the practice of depicting tobacco trademarks on the cigarette itself. In upholding the 1972 BC ban on tobacco (and alcohol) advertising, the BC Supreme Court rejected arguments that this was an improper provincial restriction on the use of trademarks. The plaintiff tobacco and liquor companies had made several arguments, including that the legislation expunged trademarks within the province. This argument was soundly rejected at p.266: 54 The manufacturers of liquor products are still entitled to use their registered trade marks on their products to identify them. It is contended that the restriction on advertising is an improper restriction upon the use of the trade mark, but... I conclude that the rights arising from the granting of a trade mark cannot be exercised in contravention of the laws of the Province restricting the rights of the public in the Province generally. Conclusion There is no legal impediment for a province to regulate tobacco packaging on the basis that the provincial regulation would be more restrictive than federal legislation. 54 Benson & Hedges (Canada) Ltd. v. Attorney General of British Columbia (1972), 27 D.L.R. (3d) 257 (BCSC). The conclusion for tobacco trademarks was the same as for liquor trademarks, at p.276.