by Propaganda
new name better described the role of the organization as the advertising industry’s self-
regulatory body.44 This seems to indicate more of an acceptance of the self-policing job
than in earlier years. In 1980, Keith McKerracher, President of the Institute of Canadian
Advertising, told the Kent Commission:
... [T]he Advertising Standards Council was not really set up to regulate advertising.
It was set up to provide an industry body to which the public could complain about
advertising rather than to complain to a government agency and the reason may well
have been that we were afraid in our industry that complaints against advertising
to governments might invoke more government regulations, and if we could head
off complaints by creating our own complaints bureau, if you like, we might be able
to provide a foil between the consumer and the advertiser to get those complaints
diminished. It is only lately that Advertising Standards Council has got into this sort
of regulatory business and that was, again, to head off what was regarded within the
industry as almost certain government regulation if it didn’t.45
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Government has already involved itself in the business of controlling misleading advertising, as we have seen, but there are many other concerns such as taste,
sex-role stereotyping, ethnic stereotyping, and other matters, which have been the
source of complaints against the industry. The main sanction of the ASC, as with
the CAF before it, is the exclusion of non-complying advertisers from membership
in the organization. This is true of print media, but there are also arrangements with
the Canadian Association of Broadcasters whereby English language material is sent
to ASC for pre-clearance. Since the Broadcast Code for Advertising to Children is
endorsed by the CRTC, which has the power to withhold a broadcaster’s licence, there
are real teeth to the ASC’s functions. This means that the distinction between “volun-
tary self-regulation” and “government control” has become blurred.
Continued membership serves as an indication of a clean bill of moral health for
the advertiser. Ultimately, the sanction of membership exclusion is only as powerful
as the desire of advertisers to be seen to be operating in line with current moral stan-
dards. But any individual advertiser, who may or may not care to be a member of the
ASC, will likely have to deal with other members who are. For example, if someone
wants to advertise in a newspaper, the chances are that the paper is a member of the
ASC and will be guided by the Canadian Code of Advertising Standards.
Updated information about the ASC, its rules and functioning, how to lodge
complaints, reports on case dispositions, and its annual reports can be found in French
and English on its website.46 The ASC can expect to be a continuing focal point for
hotly disputed questions pitting opponents of “political correctness” in advertising
against progressive forces seeking to promote equality of race, ethnicity, and gender
in the media.
Tobacco Advertising and the Supreme Court of Canada
Mill’s observation, that advertising is not disinterested, has a role to play in down-
grading the importance of protecting it for the sake of truth. However, some adver-
tising, such as advocacy advertising, mixes the commercial with the political. And,
since one can pay to express oneself on any matter, paid advertisements can also
be purely political or ideological. There is clearly no basis for lessening the impor-
tance of free expression merely because a person pays to express it. On the contrary,
it shows that the person believes in the ideas sufficiently to pay out of his or her
pocket to disseminate them! An issue of fairness arises, since the “free and open
encounter” hardly exists when one side can advertise its view far and wide while
the other has only very limited means of communication. This issue has become
of the greatest importance with the arrival of the mass media and their increasing
influence on public consciousness, particularly beginning with the latter half of the
nineteenth century.
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Even when we deal purely with the commercial realm, there are core values at stake. One is self-expression and self-fulfilment: a person really believes in the product
he or she is marketing and that the good life really and truly is bound up with market-
ing it. There is also the self-fulfilment of potential recipients of the message to take
into account. The right to express oneself in one’s mother tongue, particularly in one
of Canada’s official languages, is a right to be jealously guarded in commercial no less
than in political or religious discourse.
This is the philosophical context in which the Supreme Court of Canada decided
the question as to whether a total tobacco advertising ban, in the form of certain sec-
tions of the 1988 Tobacco Products Control Act, was an unjustifiable infringement of
the Charter guarantee of freedom of expression or not. The Court’s answer, in RJR-
MacDonald Inc. v. Attorney General of Canada and Imperial Tobacco Ltd. v. Attorney General of Canada et al. , was handed down on September 21, 1995.47 The Court ruled
that the statute in question restricted more expression than was demonstrably necessary
to reduce the social harm of smoking. It conceded the important point that some pro-
hibition of tobacco advertising was consistent with the Charter, even though conclusive
scientific evidence connecting advertising with increased consumption was lacking.
The reasoning in RJR-MacDonald shows that a majority of the Supreme Court
at the time viewed the arguments in favour of a total prohibition against tobacco
advertising to be insufficient to justify it as a reasonable limitation under the guar-
antee of free expression in the Charter. What seems to have tipped the scales in the
delicate balance between the right to free expression and the pressing social interest
of life and health was the appearance of a cavalier attitude on the part of the govern-
ment on the matter of minimal impairment. The Court was worried perhaps about
the kind of precedent that would be set if the government’s suppression of evidence
were overlooked.
Certain facts about tobacco advertising can be adduced, and were adduced, to
demonstrate that the kind of expression that is tobacco advertising is not worthy of
much protection since it advocates the use of an addictive substance that both kills
people in large numbers and causes numerous health problems to the user and to oth-
ers subjected to environmental pol ution caused by smoking. The existence of injuri-
ous health effects related to smoking was not disputed by the tobacco companies.
Much tobacco advertising is misleading imagery whose motivation, quite naturally,
is to persuade the recipient to buy the tobacco product and smoke it. It is not intended
to enlighten the recipient about its hazards or environmental drawbacks. Why bother,
then, to protect this damaging kind of expression? Does freedom of this kind of expres-
&
nbsp; sion actually weigh more heavily than the lives and health of young people (who must
be targeted if new smokers are to be generated)?
Justice Beverley McLachlin, writing for the majority, agreed that the objective
of saving lives and health was of sufficient importance to warrant an infringement of
freedom of expression, but she questioned whether the act minimally impaired that
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freedom and also whether the act’s rational connection with the objective sought had been sufficiently demonstrated. There was “no indication” that purely informational
or brand preference advertising would have the effect of increasing consumption of
tobacco. She would have accepted a partial ban, however, on lifestyle advertising
only—that is, advertising aimed at children and adolescents—and labelling require-
ments only. These would have been a reasonable impairment as distinct from an unrea-
sonable total ban.
The failure of the government to provide evidence that a less intrusive ban would
not have been equally effective seemed to her noteworthy as well. Because the gov-
ernment did not present as evidence the results of a study it was known to have had
made on alternatives to the total ban, the Court had to infer that these results did not
justify the government’s position. The government had a duty, in her view, to show
that the infringement on freedom of expression did not exceed what is reasonable
and “demonstrably justified in a free and democratic society.” In her opinion it failed
to do this.
However, McLachlin’s argument struck me at the time as missing, or giving inade-
quate attention to, important considerations relating to the question of minimal impair-
ment regarding restrictions on tobacco advertising. These include:
1. The enormous financial power of the tobacco interests to affect public conscious-
ness—a power they had shown themselves willing and able to use to circumvent
even the supposedly “total” ban when it was in place, prior to having sections
struck down. For instance, the advertising of companies sponsoring sports or cul-
tural events linked their name or logo to that event.
2. The persistent directing of advertising at young people. Since the Supreme Court
decision, advertisements linking cigarettes with guitars were published in news-
papers, such as university newspapers and free cultural papers such as Ottawa
X-Press, which were known to appeal to young audiences.
3. The history of deceptive advertising by the tobacco industry.
4. The difficulty of separating informational advertising from “lifestyle” or equiva-
lently persuasive advertising. The repetition of information, carried on long
enough, has psychological effects beyond the information itself. Furthermore,
even typographical design can convey exotic or trendy associations, leading to a
more favourable attitude towards the product.
All in al , it seemed to me, we ought to consider the expression of tobacco adver-
tising as of a low order of protection-worthiness.48 It entices people, especially young
people, to take up an addictive, health abusive, and life-shortening habit, whose envi-
ronmental effects may harm those around them. Anything short of a total ban opens
up loopholes exploitable by a determined party, which the industry had shown itself
to be.
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In 2007, the Supreme Court of Canada unanimously upheld the constitutionality of a new Tobacco Act and new Tobacco Products Information Regulations, which in
combination severely restrict tobacco advertising and sponsorship and increased to 50
per cent (from 30 per cent) the space on cigarette packages devoted to health warnings.
Information and brand preference advertising are still permitted, but such advertising is
hamstrung by prohibitions on “lifestyle advertising and promotion, advertising appeal-
ing to young persons, and false or misleading advertising or promotion.”49 The effect on
the visibility of tobacco advertising has been dramatic. One dodge used by the tobacco
manufacturers was to build very large display cases of cigarette packages in stores. In
the experience of the present writer, these have everywhere been taken down. Evidence
concerning the effect of instituting particular kinds of restrictions is difficult to assess
because of the tobacco industry’s ability to shift resources from one form of promotion
to other forms. That is why the World Health Organization has called for a compre-
hensive ban on tobacco promotion.50 A study of the impact of sports sponsorship on
youth found an increase among those exposed in their likelihood to experiment with
tobacco. Those who experiment are more likely to become smokers. Those who believe
that their sports hero is a smoker (a belief that exposure to the sponsorship favours) are
more likely to smoke than those who believe he (a famous cricketer in this study) does
not smoke.51
The judgment in this case, delivered by Chief Justice Beverley McLachlin, shows
a much greater sensitivity to the kinds of points mentioned above in connection with
the 1995 judgment. Among reasons for the shift are the following:
1. “[I]ncreased understanding of the means by which tobacco manufacturers seek to
advertise and promote their products”;
2. “[N]ew scientific insights into the nature of tobacco addiction and its con-
sequences.” These include, based on findings of the trial judge in the case, that
“tobacco is now irrefutably accepted as highly addictive and as imposing huge
personal and social costs.”
3. “We now know that half of smokers will die of tobacco-related diseases and that
costs to the public health system are enormous. We also know that tobacco addic-
tion is one of the hardest addictions to conquer and that many addicts try to quit
time and time again, only to relapse.”
4. The international context has changed, and the WHO Framework Convention
on tobacco control (2003), ratified by Canada in 2004, “mandates a comprehen-
sive ban on tobacco promotion, subject to state constitutional requirements.”
Furthermore, “[d]omestically, governments now widely accept that protecting
the public from second-hand smoke is a legitimate policy objective.”
5. An investigation by the Competition Bureau concerning use of the terms “light”
and “mild” to designate cigarettes has led to manufacturers agreeing to discon-
tinue use of the terms.
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All in all, while the legal template used in the 1995 judgment remains valid, in Chief Justice McLachlin’s words, “[t]he Tobacco Act must be assessed in light of the
knowledge, social conditions and regulatory environment revealed by the evidence
presented in this case.”
goVERnMEnT ConTRoLS on THE MEDIA
When freedom of expression is coupled with media controlled in the interests of
profit-oriented private enterprise, the public need for detailed knowledge helpful for
meaningful politi
cal involvement is not likely to be satisfied for the simple reason that
doing so is not profitable. Two government commissions in Canada and a private com-
mission in the United States have investigated the role of the government in control-
ling the media and whether, indeed, there is a need for such control.
The Commission on Freedom of the Press (Hutchins Commission, 1947)
The Commission on Freedom of the Press, headed by Robert M. Hutchins, chancellor
of the University of Chicago, was set up in 1943 with a grant of $200,000 from Time,
Inc. and $15,000 from Encyclopedia Britannica, Inc. After hearing testimony from
58 people connected with the press, as well as many other interviews, it produced a
report, A Free and Responsible Press, in 1947. It also sponsored and published six other works, including W.E. Hocking’s Freedom of the Press: A Framework of Principle and
Zechariah Chafee Jr.’s Government and Mass Communications.
The philosophy of the Hutchins Commission (as it came to be known) can be
summarized as follows. The press in the modern age has an important democratic role
to play. This role can no longer be overlooked by laissez-faire attitudes. Technology has meant increasing concentration of media. This in turn opens the door to possible
abuses of power. Hitherto, the role of the state has been to ensure freedom of expres-
sion to the provider of information and ideas. The right to receive these has been pro-
tected at the same time. However, under modern circumstances, the same confidence
in simultaneously protecting both rights can no longer be presumed, because the
media may not find it economically in their interest. Therefore, some means should
be found to ensure that they act responsibly. Since government action, however, may
destroy the very freedom it seeks to protect, it should only be used as a last resort. The
power of persuasion, and the use of education, should be the first means of improving
the press. The press “must now take on the community’s press objectives as its own
objectives.”52
Before Isaiah Berlin published his influential Two Concepts of Liberty in 1958, the
Commission advanced the doctrine that “As with all freedom, press freedom means
freedom from and also freedom for.” In addition to the social service obligation, the