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GLOBAL TOBACCO CONTROL FORUM

THE FRAMEWORK CONVENTION ON TOBACCO CONTROL IN CANADA A CIVIL SOCIETY ‘SHADOW REPORT’

2008

his report was prepared by member agencies of the Global Tobacco Control Forum. These agencies

are the Canadian Cancer Society, la Coalition québecoise pour le contrôle du tabac, HealthBridge, the

Non-Smokers’ Rights Association, the Ontario Tobacco Research Unit, Physicians for a Smoke-Free

Canada.

For further information, please contact: [email protected]

T

Table of Contents

INTRODUCTION …………………………………………………………………………………………………………………………… 1

SUMMARY OF FINDINGS ………………………………………………………………………………………………………… 3

Special focus on:

Plain packaging……………………………………………………………………………………………………………………………………… 5

FCTC and First Nations…………………………………………………………………………………………………………………………… 8

Novelty Tobacco Products……………………………………………………………………………………………………………………… 10

FCTC ARTICLE-BY-ARTICLE REVIEW Article 5: General Obligations………………………………………………………………………………………………………………… 15

Article 6: Price and Tax Measures…………………………………………………………………………………………………………. 19

Article 8: Second-hand Smoke……………………………………………………………………………………………………………… 23

Article 9: Product Regulation…………………………………………………………………………………………………………………. 28

Article 10: Emission and Content Disclosure…………………………………………………………………………………………. 30

Article 11: Tobacco Product Labelling …………………………………………………………………………………………………… 41

Article 12: Education, Training and Public Awareness …………………………………………………………………………. 44

Article 13: Advertising, Sponsorship and Promotion …………………………………………………………………………… 48

Article 15: Illicit Trade …………………………………………………………………………………………………………………………… 50

Article 16: Sales to Minors …………………………………………………………………………………………………………………… 57

Article 17: Tobacco Farming…………………………………………………………………………………………………………….…… 59

Article 18: The Environment………………………………………………………………………………………………………………..… 62

Article 19: Tobacco Industry Liability…………………………………………………………………………………………………… 64

Article 20: Research ……………………………………………………………………………………………………………………………… 70

Articles 21, 22 and 26: Reporting and Cooperation …………………………………………………………………………… 74

UPDATE ON

Canada’s responses to previous recommendations………………………………………………………………………………… 78

LIST OF TABLES AND FIGURES

Per capita funding for tobacco control in Canadian jurisdictions………………………………………………………… 18

Taxes on a typical package of 20 cigarettes, July 2008 ……………………………………………………………………… 20

Market share of cigarettes manufactured by major companies by price and region, 2006………………… 21

Price of a 20-cigarette pack of most widely consumed brand, 27 most expensive countries ……………… 22

Smoking restrictions in indoor work, living and public places across Canada …………………………….………… 24

Laws to protect children from exposure to tobacco smoke in cars …………………………………………………….… 25

Legislative authorities for smoke-free spaces in Canada ……………………………………………………………………… 26

Smoke-free measures in other countries …………………………………………………………………………………………….… 27

Number of occasions on which cigarettes have failed ignition propensity standard tests …….……………… 29

Countries with picture-based warnings …………………………………………………………………………………………………… 34

Bans on displays of tobacco products at retail………………………………………………………………………………………… 46

Comparison of Canada’s implementation of advertising restrictions with measures in other countries… 47

Estimates of total tobacco Canadian tobacco market, including contraband ……………………………………..… 51

Settlement with Imperial Tobacco and Rothmans, Schedule and distribution of payments …………..…… 56

Youth sources of cigarettes ………………………………………………………………………………………………………………….…. 58

Percentage of retailers willing to sell cigarettes to children …………………………………………………………………… 58

Tobacco production and crop value in Canada, 1998 to 2007 ………………………………………………………….….. 61

Results of civil litigation against tobacco companies ………………………………………………………………………….…. 66

Chronology of Canadian Tobacco Litigation ………………………………………………………………………………………….… 67

Results from the Canadian Tobacco Use Monitoring Survey, 2002-2007 ……………………………………………… 72

Canadian deaths from tobacco use …………………………………………………………………………………………………………. 73

Current smoking in Canadian provinces …………………………………………………………………………………………………… 73

A Civil Society Shadow Report - 2008 1

INTRODUCTION his is the third ‘shadow report’ on Canada’s implementation of the Framework Convention on

Tobacco Control (FCTC), following an initial review in January 2006 and a second report in June

2007. Each report has been prepared in advance of the first three meetings of the treaty

governance body, the FCTC Conference of Parties.

As this report as being prepared, Canada approaches the fourth anniversary of its ratification of the

Framework Convention on Tobacco Control, which was formalized on November 26, 2004. The fifth

anniversary of Canada’s signing the treaty happened earlier this year, on July 15th.

A TREATY TO PROTECT THE HEALTH OF THE WORLD – INCLUDING CANADIANS

In signing and ratifying the treaty, the government of Canada made commitments to bring its national

policies, programs and laws into line with the comprehensive set of tobacco control measures mandated in

the FCTC. Canada’s efforts to implement the treaty will benefit the health of both Canadians and those

who live in other countries, as the measures are both national and international in scope.

The commitments to the FCTC were thoughtfully undertaken by the Canadian government: six negotiating

sessions for the treaty were spread over move than three years (from October 2000 to February 2003),

and the Canadian delegation, as one of the largest (there were never more than 3 countries which sent

more representatives), was well equipped to understand and influence the nature of the obligations that

were being negotiated.1

A SHARED JURISDICTION IN CANADA’S FEDERATED SYSTEM

In Canada, federal, provincial and territorial governments have responsibility for protecting health, and

the power to implement tobacco control laws is often shared by both jurisdictions. There are only a few

areas in which one jurisdiction has exclusive powers. This dual authority is managed amicably through the

Tobacco Control Liaison Committee2 of federal and provincial ministries of health.

In recent years, provincial governments have continued to improve their tobacco control laws. Smoke-free

public places and workplaces are now the norm in Canada, and in most jurisdictions, tobacco products can

no longer be displayed at retail.

MANY STRENGTHS, SOME IMPORTANT WEAKNESSES

In many ways, Canada remains close to the head of the pack of nations when it comes to implementing

effective tobacco control measures. Although our review shows that there are a number of areas where

Canada has failed to fulfill its FCTC obligations, we have also identified a number of areas where Canada

has surpassed the minimum standards of the FCTC. Importantly, Canadian citizens and their governments

continue to look for ways to make it easier for smokers to quit and harder for tobacco companies to lure

young people into smoking.

1 Mary Assunta and Simon Chapman, Health treaty dilution: a case study of Japan’sinfluence on the language of the WHO Framework Convention on

Tobacco Control. J. Epidemiol. Community Health 2006;60;751‐756.

2 More information on the committee is provided at: http://www.hc‐sc.gc.ca/hl‐vs/tobac‐tabac/about‐apropos/role/pt/nat‐strateg‐eng.php.

T

2 Canada’s Implementation of the Framework Convention on Tobacco Control

In preparing this report, we have attempted to provide Canadian communities and their governments with

a detailed answer to the question “how is Canada doing in implementing the FCTC?”. We hope that the

information we have gathered will help our governments frame their own answer to that question as “Not

as well as we plan to do next year.”

NEW LAWS AND REGULATIONS NEEDED

In the time since Canada signed the FCTC, Canadians have witnessed significant political and legal

changes: including 3 Canadian parliaments and 5 parliamentary sessions. Three different prime ministers

and three different federal health ministers have assumed responsibility for fulfilling Canada’s international

commitments and protecting public health. Two hundred and nineteen government bills have been

introduced in the House of Commons. Not one government bill has made public the government’s plan to

bring Canada’s laws fully into line with its FCTC commitments.

This report provides a detailed look at each set of Canada’s obligations under the FCTC, provides

commentary on where Canada’s measures are – or are not – in line with treaty requirements, and

provides recommendations on measures governments and others should take to strengthen the

implementation of the treaty in Canada.


SUMMARY OF FINDINGS

AREAS WHERE CANADA AND CANADIAN JURISDICTIONS ARE PIONEERING IMPORTANT NEW INITIATIVES BY:

expanding non-smoking rules to new environments, like chronic care facilities, home environments

and prisons, and continuing to explore new ways of protecting Canadians in their home, public and

work environments from second hand smoke.

setting meaningful targets for tobacco use reduction (including an overall smoking prevalence rate of

12% by 2011).

prohibiting the sales of tobacco products in specified locations (like restaurants, bars, universities,

recreational and health facilities) in some provinces.

commissioning extensive research to support regulatory innovations and initiatives.

moving quickly to protect children from second-hand smoke in cars.

banning displays of tobacco products in retail environments.

supporting civil society organizations in global collaborations to implement and strengthen the FCTC.

Establishing a research base to support increasing the size of health warning messages to as much as

100% of the principal package surface.

Developing a planning framework to assist the global implementation of the FCTC.

AREAS WHERE CANADA AND CANADIAN JURISDICTIONS HAVE MADE GOOD PROGRESS:

Before 2002, most of Canada’s 14 senior levels of government (federal (1), territorial (3), provincial (10))

had no significant controls on smoking in workplaces and public places. By 2008, all of them did, and

eleven of the fourteen were in good compliance with Article 8 of the FCTC and its related guidelines. Three

provinces (Newfoundland and Labrador, Prince Edward Island and Saskatchewan) have failed to put

measures in place to provide 100% smoke-free workplaces.

AREAS WHERE PROGRESS IS DELAYED BECAUSE CANADA HAS:

failed to prevent the marketing of kiddy-packs of candy-flavoured tobacco products.

abandoned mass media or other broad public education campaigns.

stalled in renewing its health warning messages, even though their own research concludes that they

are “wearing out” after 8 years of use.

allowed the tobacco companies to launch price strategies that increase tobacco sales (i.e. discount

cigarettes) without responding with price or tax measures to counter their public health impact.

Eliminated the federal First Nations tobacco control strategy, without replacing it with a better one.


AREAS WHERE CANADA IS IN BREACH OF ITS FCTC OBLIGATIONS BECAUSE CANADA HAS FAILED TO:

require all tobacco products to carry package health warning messages.

protect First Nations people from second-hand smoke.

protect public policy from tobacco industry interference.

ensure that tobacco products are not sold or promoted in misleading or deceptive ways.

either comprehensively ban tobacco advertising or at least require health warning messages on any

permitted advertising and undertake other measures to further restrict tobacco advertising and

promotion.

respond adequately to the increased sale of contraband tobacco products.

AREAS WHERE WE BELIEVE CANADA CAN GO FURTHER BY:

requiring that all tobacco products be sold in plain packaging

banning all flavourings in tobacco products.

holding tobacco companies accountable for their longstanding wrongdoings.


Focus on

PLAIN PACKAGING

Front cover of one of the

leading tobacco trade journals,

September 2008

PACKAGING IS PROMOTION There is considerable evidence that the tobacco pack is a powerful

form of promotion. One of the five Ps of marketing, packaging is

arguably the most important medium for communicating a

consumer product’s image:3

• The package has extensive reach to all purchasers and most

users;

• The package is present at the crucial moment when the

purchase decision is made;

• Users have a high level of involvement of with the pack. They

retain and reopen the pack many times, often in front of

others.

The high social visibility of cigarette packs contribute to making

cigarettes a “badge product”—a badge of identity whereby the

smoker’s image is represented by the image of the brand. Cigarette

brands “embody the qualities we wish we had, the lives we wish we

could lead, the great escapes we wish we could make.”4

The package’s size, shape, colours, logo, and descriptive phrases all

serve to emphasize the association between the brand image and

the consumer’s aspirational self image and lifestyle. Tobacco

company documents reveal that there is very little physical

difference between brands; the real differentiation is in the brand

image conveyed by the packaging:

“So the discrimination in product terms, pure

blind product terms without any packaging or

name around it is very limited. You can tell if it’s

very mild or very strong…. But it’s very difficult

for people to discriminate, blind tested. Put it in

a package and put a name on it, and then it has

a lot of product characteristics.”5

3 R Rettie, C Brewer, “The verbal and visual components of package design,” Journal of

Product & Brand Management 2000; 9(1): 56‐70.

4 M Thiboudeau, J Martin, Smoke gets in your eyes: branding and cigarette design in cigarette packaging, 2000, as cited in M Wakefield et al, “The cigarette pack as image: new evidence from tobacco industry documents,” Tobacco Control 2002;11: i73‐i80.

5 D Brown, Vice‐President of Marketing, Imperial Tobacco Canada, testimony in ITL and RJR‐Macdonald v Attorney General of Canada, 28 September 1989, p. 661.


As various analysts have concluded: with tobacco, “a product is just a product; the packaging is the

brand.” 6

PACKAGING CONTRIBUTES TO MISLEADING CONSUMERS Under Article 13(4) of the Framework Convention, each Party, as a minimum, must prohibit all forms of

advertising and promotion that “are false, misleading or deceptive or likely to create an erroneous

impression about its characteristics, health effects, hazards or emissions.” Furthermore, Article 11.1(a)

specifically requires that Parties ensure that tobacco packaging and labelling do not promote a tobacco

product by such means.

Many packs mislead consumers by minimizing their concerns about the health effects of tobacco use. Two

major studies of warnings by Createc for Health Canada show that adult and youth smokers and

vulnerable youth non-smokers believe that current Canadian packs give more importance to the branding

elements than to the warnings; in other words even with graphic warnings that occupy 50% of the major

face, the pack design serves to promote the brand more than the warnings serve to emphasize the

significant health risks.

Several recent developments in the Canadian tobacco market provide a useful illustration of why plain

packaging is needed and how it is justified under the FCTC.

Tobacco companies have introduced completely redesigned packages for virtually all major brands—

featuring new shapes, sizes, opening styles, colours, logos, graphics, inks, descriptive phrases—in

response to restrictions on promotion. To reinforce its image and position as Canada’s leading premium

brand in the face of an erosion of market share to discount brands and a decline in total tobacco sales, the

du Maurier pack was completely redesigned:

“Given the current ban on cigarette advertising and severe limits on promotional

activities, manufacturers must find other meaningful ways of communicating brand

awareness. Enhancements to packaging and other product details provide consumers

with tangible touch points that effectively express the brand’s identity.” 7

The award-winning du Maurier “signature pack”

is credited with giving rise to a 2% increase in

the brand’s share of the premium market shortly

after its launch: 8

6 D Gardner, “Tear down the walls; Convenience store power walls were the brilliant response of a cigarette industry cornered by advertising

restrictions—banning them will save lives,” The Ottawa Citizen, 30 April 2008, p. A15. Citi Investment Research, “Company Flash: Imperial Tobacco Group PLC, Material New Risk Appears: UK Govt Suggests Plain Packaging,” 2 June 2008.

7 Giovanni Barezzi International Award, Second Edition, Webpage. URL: http://www.barezziaward.com/english/winner02.html. Accessed April 2008.

8 Giovanni Barezzi International Award, Second Edition, Webpage. URL: http://www.barezziaward.com/english/winner02.html. Accessed April 2008.

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Focus on

FCTC AND FIRST NATIONS

THE PREAMBLE OF THE FCTC INDICATES THAT ALL PARTIES TO IT ARE Deeply concerned about the

high levels of smoking and

other forms of tobacco

consumption by indigenous

peoples,

Article 4 says that all Parties

will be guided by a list of

principles, including:

2. Strong political commitment

is necessary to develop and

support, at the national,

regional and international

levels, comprehensive

multisectoral measures and

coordinated responses, taking

into consideration:

…

(c) the need to take measures

to promote the participation of

indigenous individuals and

communities in the

development, implementation

and evaluation of tobacco

control programmes that are

socially and culturally

appropriate to their needs and

perspectives;

Canada has a fiduciary duty10 to act in the best interests of

Aboriginals. When it comes to tobacco control, it is failing in

that duty miserably.

FUNDING CONTROL OF COMMERCIAL TOBACCO IN ABORIGINAL COMMUNITIES

The Federal Tobacco Control Strategy (FTCS) “is directed at

Canadians of all ages, with a particular emphasis on youth, young

adults, First Nations, Inuit, and other Aboriginal groups.”11

This emphasis on “First Nations, Inuit, and other Aboriginal groups”

is necessary. While the Canadian smoking rate has dropped below

20%, over half of First Nations and Inuit people are addicted to

tobacco industry products. A 2002-03 national survey of on-reserve

communities estimated that 59% of First Nations members

smoked.12 Smoking rates for Inuit are generally believed to be

about 66%.13

In April 2001, the federal government announced a ten year

Federal Tobacco Control Strategy, with an initial 5-year budget of

$559.8 million FTCS. As part of this strategy, a $50 million budget

was allocated for the First Nations and Inuit Tobacco Control

Strategy (FNITCS) which was to be managed by the First Nations

and Inuit Health Branch (FNIHB) of Health Canada which

administers health services for eligible First Nations’ peoples. The

FNIHB component of the FTCS was aimed at addressing the high

rates of tobacco use in First Nations and Inuit communities.

However, in September 2006, the government announced that the

Strategy was not achieving “value-for-money.” It was decided to

gradually eliminate the annual budget for Health Canada’s First

Nations tobacco control programs while continuing to

10 Fiduciary duty: The legal obligation of one party to act in the best interests of another.

Canada has a fiduciary obligation with respect to Indians and lands reserved for Indians under Section 91(24) of the Constitution Act of 1867. Assembly of First Nations. Terminology. Fact Sheet. http://www.afn.ca/article.asp?id=437. Accessed July 2008. Also see: Library of Parliament. “The Crown's Fiduciary Relationship with Aboriginal Peoples.” 10 August 2000. Revised 18 December 2002. http://www.parl.gc.ca/information/library/PRBpubs/prb0009‐e.htm.

11 Health Canada. Tobacco Control Programme. “Federal Tobacco Control Strategy.” Website text. http://www.hc‐sc.gc.ca/hl‐vs/tobac‐tabac/about‐apropos/role/federal/strateg‐eng.php.

12 First Nations Regional Longitudinal Health Survey, (RHS) 2002/03, Chapter 9, page 106.

13 Guidelines for Inuit Communities Working on Reducing Tobacco Use. Pauktuutit Women’s Association of Canada, 1995, page 1.


respect commitments for external funding until the end of the

2007-08 fiscal year.

September 2008 marks the two year anniversary of the

announcement to eliminate the FNITCS. There is currently no

funding specifically designated for tobacco control in First Nations

and Inuit communities, and no new strategy is being developed to

bring down smoking rates. By any measure, this is unacceptable.

Even while the FNITCS was functioning, its expenditures in any

given year were lower than the amounts allocated. In a March 2007

evaluation of the Strategy, Health Canada reported that this

“occurred for one or both of the following reasons:

• First Nations and Inuit Health Branch headquarters and/or

regional management reassigned a portion of the First Nations

and Inuit Tobacco Control Strategy allocation to cover costs for

other programs; and/or

• Funds from the approved First Nations and Inuit Tobacco

Control Strategy budget were committed for specific projects

through contribution agreements during the year, but were not

spent because some of the projects reported surpluses, were

terminated early, or were never implemented because the

funding was approved too late in the year.”

The relative poor progress against tobacco use among Inuit and

First Nations communities in comparison with Canada’s general

populations is illustrated above.14

RECOMMENDATION: Canada should work with First Nations and Inuit community leaders

to develop a comprehensive, effective and well-funded strategy to

reduce commercial tobacco use — and the related death and

disease — in Aboriginal communities.

14 Health Canada. “First Nations and Inuit Tobacco Control Strategy ‐ Implementation

Evaluation. Final Evaluation Report ‐ March 2007.” p. 15.

“I can assure you that we have

not cancelled a strategy. We

have held the funding. There's

no program right now, but

what we are doing is we are

calling for, or casting about for,

some ideas….

The fact of the matter is that

right now on-reserve tobacco

use is at 59% of the

population, and it's at 17%, I

believe, or 19% in the general

population. So something isn't

working.

I don't believe in putting good

money after bad. If we can

change something, let's change

it, and we will put the money

in. I can assure you of that.”

Hon. Tony Clement

Appearing before the Standing

Committee on Health,

November 23, 2006.

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Focus on

NOVELTY TOBACCO PRODUCTS

Harmful cigarillos (right hand side of photo) resemble harmless products commonly used by young Canadians (left hand side of photo).

Tobacco manufacturers have recently exploited loopholes in

Canadian law to introduce inexpensive and youth-friendly candy-

and fruit-flavoured tobacco products.

Because these products do not meet the legal definition of

‘cigarette’, they are exempted from many important regulations

designed to reduce youth uptake (including those on minimum size

and health warnings).

The government is aware of this problem and has improved its

monitoring of the situation, but it has not made any regulatory

changes to close the loopholes.

LOOPHOLES IN CANADA’S TOBACCO CONTROL LAWS

Canadian law distinguishes between cigarettes and cigars, and

imposes more stringent regulations on cigarettes. The difference

between a cigarette and a cigar is paper thin – it is the paper with

which the smoking tube is rolled. A cigarette is rolled in paper made

from wood or other fibre, and a cigar is wrapped in tobacco leaves

or paper made in whole or in part from tobacco.


REGULATIONS ON CIGARETTES • Cigarettes must have a health warning that

covers no less than 50% of the package

front and back.

• They cannot be sold in packages with fewer

than 20 cigarettes (i.e. no ‘kiddy packs’).

• They must have toxic constituent

information on the side of the package (tar,

nicotine, carbon monoxide, hydrogen

cyanide, formadelhyde, benzene).

• Inside each package there must be a health

information message, designed to help

smokers quit.

• There are no bans on flavourings in

cigarettes, but there are very few cigarettes

that are flavoured with anything other than

menthol. 15

15 In November 2007, Japan Tobacco introduced orange liqueur,

rum and whisky flavoured versions of its “More” cigarettes. About 2% of cigarettes sold in Canada are mentholated (ACNielsen, Convenience and Gas Convenience Track, 2006).

REGULATIONS ON CIGARS, CHEROOTS AND CIGARILLOS • These tobacco products, if they are sold in

bundles or boxes, must have a health

warning occupying 13% to 27% of a

principal display space, depending on the

size of the package. The health warning

does not have to be on both sides of the

package, and may be located only on the

back of a product package.

• If they are sold in individual units, they do

not have to have a health warning at all.

• There is no minimum pack size. Cigars,

cigarillos and cheroots can be sold

individually or in small ‘kiddy packs’.

• They do not have to have any toxic

constituent labels.

• They do not have to have any health

information messages inside the package.

• There are no bans on flavourings, and

cigarillos are sold in such flavours as:

cherry, appletini, cosmo (cranberry with a

hint of orange), strawberry, peach, vanilla,

raspberry, pina colada, cinnamon, peach,

chocolate mint, coconut, wild berry, rum,

tangerine, grape.

REGULATIONS ON BLUNTS • Blunts are a recently introduced tobacco

product in Canada. They are rolling papers

made with tobacco, often sold as a way to

roll cannabis ‘joints’. There are no

requirements for health warning messages,

minimum package sizes, health information

messages or toxic constituent labels on

these products.

• Blunts are widely available and are sold in

candy, fruit and food flavours (like banana

split).


The 'cigar' on the left is

the same height as the

'cigarette' on the right

and contains

approximately the same

amount of tobacco. Both

have filters. The paper

which surrounds the

'cigar' has tobacco fibre

in it, which classifies

this tobacco product as

a cigar and exempts it

from many regulatory

requirements.

WHO SMOKES CIGARS AND CIGARILLOS?

There has been relatively little public research

into the different markets for different types of

cigar products (i.e. cigars, cheroots and

cigarillos). Health Canada included questions on

cigarillos for the first time in the 2007 annual

smoking survey (the Canadian Tobacco Use

Monitoring Survey, or CTUMS). This survey

showed that:16

• Cigarillos are a kiddy product. Young people

are much more likely to smoke them than

adult Canadians. (15% of 15-19 year olds

have smoked a cigarillo in the past 30 days

compared with 3% of Canadians over 25.)

• Teenagers are as likely to try smoking

cigarillos as they are to try smoking

cigarettes (one third of Canadian teens aged

15-19 have ever tried a cigarette and one

third have ever tried a cigarillo.)

• Teenaged boys are as likely to have recently

smoked a cigarillo as a cigarette (teenage

girls half as likely).

Because traditional measurements of smoking

only refer to cigarette smoking, teenagers who

smoke cigarillos (but who do not smoke

cigarettes) have not been included in

16 Physicians for a Smoke‐Free Canada. Fact sheet: Cigarillo

Smoking in Canada A review of results from CTUMS, Wave 1, 2007. February 2008.

measurements of smoking rates. If they are

included, teenage smoking rates increase from

15% to 20%.

WHY MIGHT YOUTH BE SMOKING CIGARILLOS?

• They are affordable. (In Ottawa, a single

Prime Time cigarillo costs $1.50 and a

package of 4 Twinkle cigarillos costs $2,

compared with a minimum price for a

package of cigarettes of $5.50.)

• They are attractive. They are packaged in

bright colours and in tubes that resemble

markers or lip-gloss.

• The use of candy, fruit and alcohol

flavourings gives them a high ‘try-me’

appeal, and the flavourings may make the

products seem less dangerous.

• The packaging suggests that they are not as

dangerous as cigarettes, as there are fewer

or less onspicuous health warning

messages. In the case of single cigarillo

packages, there are no health warnings at

all.

• They are easy to find.

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“As a parent, I was appalled to

see tobacco being marketed in

a way that is so enticing to

children. Flavouring and

packaging them like candy,

gum or a fruit roll up. This just

isn’t right. This practice can’t

continue. We will not tolerate

it.“

Prime Minister Stephen Harper

September 17, 2008

On September 17, 2008, Prime Minister Stephen Harper announced

that the Conservative party was including in its election promises a

commitment to:

• Set a minimum package size for cigarillos that makes them less

affordable for children.

• Introduce regulations to ban the use of flavours and additives

in all tobacco products that would appeal to children.

• Ban all tobacco advertising and promotion in print and

electronic media which may be viewed and read by youth.21

RECOMMENDATIONS: Canada should move immediately to require all tobacco

products to be sold with a health warning label that is no

smaller than 50% of the principal display areas of the package.

This would apply to all tobacco products, cigars, cheroots,

cigarillos, pipe tobacco, blunts, etc.

All tobacco products should be subject to a minimum package

size or price sufficient to deter youth trial and uptake.

Regulations to require this should be accelerated.

In order to reduce the attractiveness of these products to

youth, packaging must be appropriate to the risks of using

them. In addition to prominent health warning messages,

standardized packaging would prevent tobacco products from

being sold in ways that resemble commonplace youth objects,

like markers and lip-gloss.

Tobacco companies should be prevented from using

flavourings.

Tobacco companies should be prevented from using other

marketing novelties to induce smoking among youth.

21 Conservative Party of Canada. Press Release. “Cracking down on all tobacco products

marketed to children.” September 17, 2008. http://www.conservative.ca/EN/1091/105598.

Key Development


Article 5

GENERAL OBLIGATIONS

CANADA’S TREATY COMMITMENTS

NATIONAL LEVEL Develop, implement and

periodically review a

comprehensive multisectoral

national tobacco control

strategy, plan and program in

accordance with the FCTC;

Reinforce and finance a

national coordinating

mechanism or focal point for

tobacco control;

Adopt and implement effective

measures for preventing and

reducing tobacco consumption,

nicotine addiction and exposure

to tobacco smoke;

Protect these policies from

tobacco industry interference;

INTERNATIONAL LEVEL Cooperate with other Parties in

the formulation of proposed

measures, procedures and

guidelines for implementing the

FCTC;

Cooperate, as appropriate, with

competent intergovernmental

organizations and other bodies

to achieve the objectives of the

FCTC; and

Cooperate with other FCTC

Parties to raise funds for

implementation.

SINCE OUR LAST REPORT: Funding for the Federal Tobacco Control Strategy (FTCS) has

been renewed, with $368 million allocated for the five-year

period ending in 2011. 22

Health Canada has set a new federal goal to reduce current

smoking prevalence to 12% by 2011.

Tobacco companies have attempted to interfere with tobacco

control measures by convening meetings on harm reduction

and contraband tobacco.

The federal government secretly negotiated with tobacco

companies a multi-year settlement for their illegal behaviour

during the contraband crisis in the 1990s. The settlement was

reached without the input of health ministries or authorities.

Future payments under the agreement are contingent on

continued industry revenues from tobacco products.

NATIONAL LEVEL A pan-Canadian comprehensive, multisectoral tobacco control

strategy, agreed to by governments, has been in place for over 20

years. This strategy has been periodically updated to reflect new

knowledge and experience. The most recent version of the ‘national

strategy’ was adopted by provincial and federal health ministers in

1999.23 This overarching strategy, whose goals are prevention,

protection, cessation and denormalization of tobacco use, serves to

inform and guide strategies of provincial/territorial and federal

ministries of health. Efforts by these ministries to reduce tobacco

use are coordinated through the Tobacco Control Liaison

Committee, and annual reports are produced on their

accomplishments. The focal point for the FCTC is the Tobacco

Control Programme of Health Canada.

22 Treasury Board of Canada. 2008‐2009 Reports on Planning and Priorities. Health Canada.

http://www.tbs‐sct.gc.ca/rpp/2008‐2009/inst/shc/shc09‐eng.asp.

23 A National Strategy to Reduce Tobacco Use in Canada. http://www.hc‐sc.gc.ca/hl‐vs/pubs/tobac‐tabac/ns‐sn/index‐eng.php.


NEW FEDERAL GOALS The federal government contribution to the national strategy is guided

by Health Canada’s Federal Tobacco Control Strategy (FTCS).24 In

2007, the federal government strengthened its goals for this strategy,

aiming to:

• Reduce current smoking prevalence to 12% by 2011. This means

decreasing the number of current smokers by 1.6 million in less

than four years.

• Reduce the prevalence of Canadian youth (15-17) who smoke from 15% to 9%.

• Reduce the prevalence of Canadians exposed daily to second-hand smoke from 28% to 20%.

• Examine the next generation of tobacco control policy in Canada.

• Contribute to the global implementation of the World Health Organization's Framework Convention on

Tobacco Control.

• Monitor and assess contraband tobacco activities and enhance compliance.

The lead agency for this FTCS is Health Canada, but the strategy also funds and engages Public Safety

Canada, the Office of Public Prosecutions, the Royal Canadian Mounted Police, the Canadian Revenue

Agency and the Canada Border Services Agency.

The federal tobacco strategy is implemented through legislation as well as administrative and/or executive

actions. The federal Tobacco Act is the cornerstone of federal health law on tobacco, although other

legislative instruments (such as tax laws) are also used.

DEFENDING TOBACCO CONTROL MEASURES FROM INDUSTRY ATTACK The tobacco industry has launched court actions against some federal, provincial/territorial and municipal

laws. These have been vigorously defended by all levels of government, and in 2007 the federal Tobacco

Act was upheld in its entirety by a unanimous decision of the Supreme Court of Canada, after a 10-year

legal challenge by the multinational tobacco companies operating in Canada.

Tobacco companies continue to use threats of legal challenge to delay or weaken public measures.

Examples of industry success include a recent decision by the Quebec government to back down from its

decision to ban colours from tobacco advertising after the companies threatened a court action.25

Examples of government achievements in resisting industry pressure include decisions not to participate in

British American Tobacco/Imperial Tobacco Canada Limited (BAT/ITL) funded conferences on harm

reduction and contraband tobacco.

FCTC Article 5.3 obligates Parties to “protect these [public health] policies from commercial and other

vested interests of the tobacco industry.” The Conference of Parties has not yet established guidelines to

define what does, or does not, constitute ‘interference’ by tobacco companies.

Draft guidelines prepared for the forthcoming Conference of the Parties (COP3, November 2008), propose

key principles and recommendations to guide Parties’ engagement with tobacco companies, including the

following:26

24 Federal Tobacco Control Strategy http://www.hc‐sc.gc.ca/hl‐vs/tobac‐tabac/about‐apropos/role/federal/strateg‐eng.php.

25 Publicité des cigarettiers. Québec fait marche arrière. La Presse, July 10, 2008, p. 8.

26 Elaboration of guidelines for implementation of Article 5.3 of the Convention. http://www.who.int/gb/fctc/PDF/cop3/FCTC_COP3_5‐en.pdf.

Key Development


Principle 2: Parties, when dealing with the tobacco industry or those working to further its

interests, should be accountable and transparent.

Recommendation 3.3: Parties should prohibit the acceptance of any voluntary code of conduct or

instrument drafted by the tobacco industry that is offered as a substitute for legally enforceable

tobacco control measures.

Recommendation 3.4: Parties should prohibit acceptance of any offer for assistance or proposed

tobacco control legislation or policy drafted by or in collaboration with the tobacco industry.

Recent developments in Canada indicate that these principles and recommendations have not yet been

agreed to by key government officials or departments.

One example lies in the way the government chose to proceed in addressing the contribution of tobacco

companies and their executives to the contraband crisis of the 1990s, which resulted in billions of dollars

of lost revenues and culminated in the halving of tobacco taxes in the populous eastern half of Canada.27

On July 31, 2008, the federal Minister of Revenue announced that a plea bargain and financial settlement

had been entered into with two multinational tobacco companies. In return for a multi-year agreement to

provide additional funds to governments (contingent on future tobacco sales), criminal investigations into

the companies’ contraband-related activities in the 1990s were suspended. Guilty pleas were entered by

the tobacco companies on one charge each of tax evasion, and companies were given protection from

future civil litigation actions arising from these contraband activities. The settlement was apparently linked

to two accompanying announcements: to spend the entire federal receipts in the current year on financial

support to tobacco farmers and an offer from Philip Morris to take one of the companies involved

(Rothmans Inc.) into private ownership.28 29 30

The secrecy in which this agreement was reached (and the imposition of future secrecy as one of the

settlement provisions) runs against the principles of transparency and accountability. The

acknowledgement by Revenue Canada of the active but secret role played by the tobacco companies in

“developing solutions” to contraband illustrates the problems of such an approach.

CIVIL SOCIETY—ACTIVE BUT NOT FORMALLY ENGAGED Civil society organizations are very active in tobacco control in Canada, and participated in the

development of the national strategy. They no longer are invited to participate formally in the pan-

Canadian coordinating committee or its activities. The level of engagement by government of non-

governmental organizations varies greatly across jurisdictions and program or policy areas.

No mechanism has yet been announced for the federal management of inquiries about the FCTC or

coordination of FCTC activities with non-governmental actors.

INTERNATIONAL

Canada’s actions to meet its international commitments related to General Obligations under the

Convention are discussed in this report in the section reviewing Articles 22, 24 and 26.

27 See: Non‐Smokers’ Rights Association and Physicians for a Smoke‐Free Canada. Chronology of Cigarette Smuggling.

http://www.smoke‐free.ca/pdf_1/RCMP‐Chron‐2001.PDF

28 Revenue Canada. Comprehensive settlement agreements between federal and provincial governments and Imperial Tobacco Canada Ltd. and Rothmans, Benson & Hedges Inc. http://www.cra‐arc.gc.ca/gncy/tbcc/menu‐eng.html.

29 Rothmans Inc. Press Release. Rothmans Inc Announces Take Over Offer by Philip Morris International. July 31, 2008.

30 Agriculture Canada. Press release. Government of Canada Delivers real action for tobacco farmers and their communities. August 1, 2008. http://www.agr.gc.ca/cb/index_e.php?s1=n&s2=2008&page=n80801.


PER CAPITA FUNDING FOR TOBACCO CONTROL IN CANADIAN JURISDICTIONS

Jurisdiction 2006-2007 Funding Population Per Capita

Federal $58,466,946 32,422,919 $1.49

Yukon $272,000 31,150 $8.73

Northwest Territories $353,400 42,526 $8.31

Nunavut $170,000 30,245 $5.62

Ontario $60,000,000 12,599,364 $4.76

Quebec $29,480,929 7,623,870 $3.87

Alberta $9,100,100 3,306,359 $2.75

Nova Scotia $2,330,000 936,988 $2.49

Newfoundland $787,250 514,409 $1.53

British Columbia $5,400,000 4,279,462 $1.26

Prince Edward Island $120,000 138,157 $0.87

Manitoba $588,000 1,178,348 $0.50

New Brunswick Not available 751,111

Saskatchewan Not available 990,930

Source: Ontario Tobacco Research Unit. (2007). The Tobacco Control Environment: Ontario and Beyond. [Special Reports: Monitoring and Evaluation Series, 2006-2007 (Vol. 13, No. 1)]. Fact Sheet 1.4: Tobacco Control Funding Commitments. Toronto, ON: Ontario Tobacco Research Unit.

Health Canada expenditures on tobacco control represent 2% of its total funding.31 Strategic outcomes

with higher levels of funding are First Nations and Inuit Health (67%), Management of Health Products

(6%), Environmental Health (6%), and Illegal Drugs (3%).

RECOMMENDATIONS: The FCTC focal point in Canada should include NGO representatives as full partners.

31 Source: Health Canada. 2008‐09 Reports on Plans and Priorities http://www.tbs‐sct.gc.ca/rpp/2008‐2009/inst/shc/shc02‐eng.asp


Article 6

PRICE AND TAX MEASURES

CANADA’S TREATY COMMITMENTS Recognize that price and tax

measures are an effective and

important way to reduce

tobacco consumption by

various segments of the

population, in particular young

people;

Take account of national health

objectives when setting tax

and price policies on tobacco

products, including tax- and

duty-free sales;

Report on tax rates and

consumption trends to the

periodic Conferences of the

Parties to the FCTC.

SINCE OUR LAST REPORT: The province of Prince Edward Island raised taxes by $5 per

carton, on April 24, 2008.

Yukon Territory increased its tax on cigarettes by $15.60 per

carton (8 cents per cigarette) on July 1, 2008.

The federal government equalized taxes between ‘stick’

tobacco and manufactured cigarettes, made up for tax

reductions on GST with increased tobacco excise taxes. It also

set a minimum unit for tax on loose tobacco of 50 grams.

The Canadian cigarette market, until recently characterized by a

unitary price structure, has been transformed into one where

cigarettes are sold at widely varying prices. The cheapest available

cigarettes are those sold illegally (sometimes less than 3 cents per

cigarette), and the most expensive available cost about 50 cents

each.

The difference in price results from three separate types of activity:

ILLEGAL MANUFACTURE AND SALE: Contraband cigarettes are widely available in the most populous

regions of Ontario and Quebec. (For analysis of the illegal market,

see commentary on Article 15.)

MANUFACTURERS’ PRICE TIERS: Although main brand cigarettes were formerly all sold at the same

price, companies have now segregated their brands and customers

into ‘premium’ and ‘discount’ or ‘value for money’ categories.

TOBACCO TAXES: Tobacco taxes are levied by both provincial/territorial and federal

governments. The tax rates in low-tax provinces (like Quebec) are

about half the rates in high tax regions (like Northwest Territories

and Prince Edward Island). (See Table 6.1.)

The roots of the high levels of regional variance lie in the

contraband crisis of the early 1990s, and the differing responses of

provincial governments to the proposal of the federal government

for combined federal-provincial tax cuts.


RECENT TOBACCO TAX INCREASES* March 23, 2007:

Nova Scotia—$2.00

April 20, 2007:

Alberta—$5.00

January 1, 2008:

Federal—shift in $0.59 from

GST (Goods and Services

Tax) to Excise tax.

February 27, 2008:

Federal—Excise duty made

the same as for tailor-made

cigarettes.

April 24, 2008:

Prince Edward Island —$5.00

per carton

July 1, 2008:

Federal government creates

disincentive for small

packages of fine tobacco by

applying excise tax to

packages of “50 grams or

less”.

Yukon —$15.60 per carton

* (per 200 cigarettes unless otherwise stated).

TAXES ON A TYPICAL PACKAGE OF 20 CIGARETTES, JULY 200832

CIGARETTE PRICES VARY WIDELY ACROSS CANADA

In addition to different tax rates among provinces, the Canadian

cigarette market has recently experienced different manufacturers’

prices among brands.

Each of the three multinational tobacco companies operating in

Canada (BAT/Imperial Tobacco, JTI-Macdonald and Rothmans,

Benson & Hedges) have reduced prices on some established

brands, creating price-tiers for their products. These tiers are

referred to as ‘premium’, ‘price’ and ‘value for money’ brands.

Just as the price of cigarettes varies between brands, it also varies

for each brand across provinces. That is because the excise and

other taxes imposed on cigarettes vary from province to province.

Federal excise taxes are uniform across Canada, but

provincial/territorial tobacco taxes and sales taxes vary.

Cigarettes sold at duty-free stores continue to be sold at a discount.

Although the federal government imposed federal excise taxes on

cigarettes sold at duty-free shops and required returning travelers

to pay excise taxes on any cigarettes they brought back,

provincial/territorial tobacco taxes do not apply in duty-free stores.

Tobacco companies are required to report to Health Canada

wholesale shipments of tobacco products, but Health Canada

recently decided that it would no longer release this information.33

Companies are not required to report wholesale prices.

32 Non‐Smokers’ Rights Association. Tax map at www.nsra‐adnf.

33 Letter from Health Canada to Physicians for a Smoke‐Free Canada, September 29, 2008.

$0$1$2$3$4$5$6$7$8$9

$10

New

foundland

Prince Edward Island

Nova Scotia

New

Brunswick

Quebec

Ontario

Manitoba

Saskatchewan

Alberta

British Columbia

Yukon

Northw

est Territories

Nunavut

Product Cost* Federal Excise Duty Provincial Tobacco Taxes

Provincial Sales Tax Federal GST


Estimates of the prices paid for cigarettes can be derived from data sampled by ACNielsen from over

4,000 cash registers located in convenience stores and gas-convenience stores across Canada.34 The

results are shown on the table below.

Market share of cigarettes manufactured by major companies, by price and region, 200635

Quebec Ontario West Atlantic Canada $4 - $5 1.7% 0.0% 0.0% 0.0% 0.3%

$5 - $6 46.8% 21.8% 0.0% 10.5% 16.8%

$6 - $7 45.3% 30.2% 23.8% 38.4% 31.1%

$7 - $8 6.2% 47.7% 18.0% 50.2% 27.0%

$8 - $9 0.0% 0.3% 58.0% 0.9% 24.7%

$9 - $10 0.0% 0.0% 0.2% 0.0% 0.1%

100.0% 100.0% 100.0% 100.0% 100%

LOW CIGARETTE PRICES ‘GROW’ THE TOBACCO MARKET

Stiff competition from legal (and

illegal) manufacturers of

‘discount’ cigarettes spurred the

major companies to return to

price competition after several

decades of not distinguishing

their brands on cost.

Lowering prices to compete for

brand share also had the effect

of increasing the overall market,

as reported by Rothmans,

Benson & Hedges (RBH) to its

retail partners in 2006.”36

34 ACNielson, Convenience Track, 2006. *Prices adjusted for 20 pack unit equivalence Because cigarettes are sold in packages of both 20 and 25, the

data has been adjusted to reflect the price of a package of 20 cigarettes.

35 ACNielson, Convenience Track, 2006. *Prices adjusted for 20 pack unit equivalence.

36 Rothmans, Benson & Hedges presentation to Convenience U, 2006.

0%

10%

20%

30%

40%

50%

60%

70%

Quebec Ontario West Atlantic Canada

$4 ‐ $5 $5 ‐ $6 $6 ‐ $7 $7 ‐ $8 $8 ‐ $9 $9 ‐ $10

Monitoring the effect of

cigarette prices has not

yet led to effective price

policies.

Health Canada has used a

variety of monitoring

instruments to assess the

impact of discount

cigarettes, including

questions on its regular

Canadian Tobacco Use

Monitoring Survey (CTUMS),

as well as focus groups and

other public opinion polling.

This research has not yet

been applied to developing

measures to respond to the

increased use of pricing in

Canada in cigarette

marketing.


RECOMMENDATIONS: Provinces and territories should no longer permit tobacco products to be sold in duty-free stores

exempt of provincial/territorial tobacco taxes.

Jurisdictions which continue to tax some tobacco products at lower rates (such as tobacco sticks and

roll-your-own) should be encouraged to ensure that all tobacco products are uniformly taxed.

CANADA’S GLOBAL RANKING: PRICE MEASURES In the World Health Organization’s MPOWER review of tobacco control measures implemented across the

world, Canada ranked fairly high (tenth) in the comparison of the price of the most popular brand of

cigarettes.37 For reasons mentioned earlier, the cited price for Canada ($8.40) is much higher than prices

paid by Canadians, both in the legal and contraband markets.

PRICE OF A 20‐CIGARETTE PACK OF MOST WIDELY CONSUMED BRAND

In local currency (or currency reported)

Local currency (or currency reported)

In international dollars (USD at purchasing power parity), 2006

1. Lesotho 20.0 LSL 12.9

2. Comoros 1500.0 KMF 11.7

3. Seychelles 32.0 SCR 11.6

4. United Kingdom 5.2 GBP 8.7

5. Sri Lanka 220.0 LKR 7.9

6. India 68.0 INR 7.0

7. Singapore 10.2 SGD 7.0

8. Ghana 13500.0 GHC 6.8

9. New Zealand 9.9 NZD 6.8

10. Canada 8.4 CAD 6.7

11. Uganda 2500.0 UGX 6.7

12. Norway 65.0 NOK 6.6

13. Australia 9.1 AUD 6.5

14. Ireland 6.5 EUR 6.4

15. Belize 7.0 BZD 6.4

16. Dominican Republic 76.0 DOP 6.3

17. Malta 1.6 MTL 6.2

18. Eritrea 20.0 ERN 6.0

19. Iceland 565.0 ISK 5.9

20. Cape Verde 180.0 CVE 5.8

21. France 5.0 EUR 5.7

22. Gambia 25.0 GMD 5.5

23. Niue 7.5 NZD 5.2

24. Swaziland 16.0 SZL 5.2

25. South Africa 15.7 ZAR 5.2

26. Mauritius 60.0 MRU 5.2

27. Jamaica 291.3 JMD 5.1

37 WHO Report on the Global Tobacco Epidemic, 2008 ‐ The MPOWER package.


Article 8

SECOND‐HAND SMOKE

CANADA’S TREATY COMMITMENTS In areas of existing national

jurisdiction, adopt and

implement measures to provide

protection from exposure to

tobacco smoke in indoor

workplaces, public transport

and indoor public places; and

Promote these measures at

other jurisdictional levels.

SMOKE‐FREE LAWS REDUCE CIGARETTE CONSUMPTION: “The period between April and

September has demonstrated

stronger shipments than the

period between October and

March. RBH management

believes that smoking

restrictions are causing

consumer consumption

variations between the summer

and winter seasons.”

Rothmans Annual Report, 2007

SINCE OUR LAST REPORT: The federal government amended the Non-Smokers’ Health

Regulations to bring federally-regulated workplaces under its

jurisdiction up to FCTC standards, effective October 25, 2007.38

Two provinces and one territory brought their smoke-free

legislation up to FCTC standards (Alberta, British Columbia and

Yukon Territory).

One of the three remaining provinces with substandard smoke-

free legislation indicated it would improve its laws (Prince

Edward Island).

Three provinces and one territory banned smoking in cars when

children are present (Nova Scotia, Ontario, British Columbia,

Yukon).

British Columbia established a policy to protect foster children

from exposure to cigarette smoke in their placement homes.

PROVINCIAL AND LOCAL GOVERNMENTS IMPROVE MEASURES

Canadians continue to demand higher levels of protection from

second-hand smoke, and Canadian legislatures continue to respond

to these demands with stronger laws.

Workplace protection is a shared jurisdiction, with the federal

government responsible for about 9% of workplaces, and provincial

governments responsible for the rest.

Virtually all Canadians live in communities where they are now

protected from exposure to second-hand smoke in all public places

and workplaces. Only two provinces have not yet implemented

protective measures in indoor public places and workplaces, (Prince

Edward Island and Newfoundland and Labrador permit designated

smoking rooms and Saskatchewan does not ban smoking in private

workplaces). Canadians who continue to be exposed are primarily

those who work and live in areas where provincial/territorial and

federal laws are not actively enforced (for example, First Nations

territories), or who work in hospitality, home-care or residential

care settings. Prisons are smoke-free in all but one province.

38 Non Smokers Health Regulations. http://laws.justice.gc.ca/en/N‐23.6/SOR‐90‐21/index.html.


Outdoor workplaces and public places are not yet routinely smoke-free, although some provinces have

banned smoking on patios, and there are increasing demands for smoke-free parks and beaches. There is

almost no protection from exposure to second-hand smoke for residents of multi-unit dwellings.

SMOKING RESTRICTIONS IN INDOOR WORK, LIVING AND PUBLIC PLACES ACROSS CANADA39

Jurisdiction Go

vern

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t B

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Canada

Alberta a

British Columbia a

Manitoba a b

New Brunswick a b

Newfoundland c c c c a

Northwest Territories a

Nova Scotia a

Nunavut a

Ontario a b

Prince Edward Island a a a a

Quebec a x

Saskatchewan a a

Yukon a

No protection Partial Protection Protection x - Undetermined

a. Designated smoking rooms are required where smoking is permitted; b. Smoking restrictions depend on the amount of enclosure around the patio; c. Smoking rooms permitted for employees only

FIRST NATIONS PEOPLES ARE NOT PROTECTED The federal government has failed to meet its commitments under the

FCTC and its responsibilities under the Treaty and other laws to

protect First Nations from second-hand smoke.

Many First Nations people live in Aboriginal jurisdictions or reserves whose

local government powers are defined in the federal Indian Act. There are over

600 First Nations communities so defined in Canada. While many First Nation communities are protected

from second-hand smoke by provincial/territorial smoke-free laws, there remain gaps in the protection of

First Nations people. The federal government has the authority under section 73(f) of the Indian Act to

regulate smoking in First Nations but has not done so despite its clear obligation under the FCTC.

SOME FIRST NATIONS COMMUNITIES ARE REFUSING TO COMPLY WITH PROVINCIAL SMOKE‐FREE LAWS

A few First Nations in Saskatchewan, New Brunswick and Manitoba have passed local bylaws purporting to

dismantle the protection their public places previously enjoyed under provincial/territorial law, even

39 As of September 1, 2008.

Treaty Breach


though band councils do not have the jurisdiction to do this under the Indian Act. The department of

Indian and Northern Affairs Canada (INAC) is responsible for reviewing and approving all band bylaws but

has permitted these bylaws to come into force even though they are not permitted under the Indian Act

and violate Canada’s obligations under the FCTC.

SMOKE‐FREE HOMES With virtually all workplaces and public places now smoke-free, public attention is turning to the need to

protect Canadians from involuntary exposure in home settings.

Children and other non-smokers who share accommodation with family members who smoke and those

whose homes are connected to the homes of smokers are particularly vulnerable.

• About 1 million children under 19 are exposed to smoke in their homes. 40

• Many home-based workers (like house cleaners) are not effectively protected from second-hand

smoke.

• Some governments are taking measures to protect children from smoke in home environments. The

BC Ministry of Children and Family Development set a policy which bans smoking in foster homes as

of May 1, 2008 (foster parents are not required to quit smoking or be non-smokers but may not

smoke inside the home).41 The city of St. John’s Newfoundland decided in July 2008 to implement a

policy prohibiting smoking in its non-profit housing units. Existing tenants will be grandfathered (they

may continue to smoke in their units).42

PROTECTING CHILDREN FROM SMOKE IN CARS Significant developments over the past year include rapid policy change

to ban smoking in cars when children are present. Community pressure

led to Wolfville, Nova Scotia becoming Canada’s first community to

adopt such a measure in November 2007. Within six months, three

provinces and one territory had adopted legislation to this effect.

LAWS TO PROTECT CHILDREN FROM EXPOSURE TO TOBACCO SMOKE IN CARS

Jurisdiction Age Number of children < 15 yrs

Legislative Authority Effective Date

British Columbia 16 689,500 Motor Vehicle (Banning Smoking when Children Present) Amendment Act, 2008

To be set by regulation

Nova Scotia 19 144,700 Smoke-Free Places (Amendment) Act April 1, 2008

Ontario 16 2,240,700 Smoke-Free Ontario Amendment Act, 2008 January 21, 2009

Yukon 18 5,400 Smoke-Free Places Act May 15, 2008

40 CTUMS, 2007.

41 B.C. Ministry of Children and Family Development Smoke‐Free Environment Policy.

42 CBC News, July 29, 2008.

Key Development


RECOMMENDATIONS: The federal government should enact a regulation under the Indian Act to provide protection from

exposure to second-hand smoke in workplaces and public places in First Nations. Until this regulation

is enacted, the federal government should stop approving band bylaws that dismantle the protection

provided under provincial/territorial smoke-free laws.

Saskatchewan should protect all workers from exposure to second-hand smoke by prohibiting

smoking in all workplaces.

Prince Edward Island and Newfoundland and Labrador should prohibit designated smoking rooms

(DSRs) in workplaces and public places.

The federal government should promote and actively support measures at all levels of government to

address the remaining gaps in the protection of Canadians from exposure to second-hand smoke.

All jurisdictions should promote and actively support effective and appropriate ways of protecting

Canadians from second-hand smoke in home settings.

LEGISLATIVE AUTHORITIES FOR SMOKE‐FREE SPACES IN CANADA

Federal: Non-Smokers’ Health Act, 198543 c. 15 and regulations (October 25, 2007) Treasury Board Policy- Smoking in the Workplace, 22 Dec 199444 Correctional Service of Canada, Commissioners Directive #259, 5 May 200845 Alberta: Tobacco Reduction Act, 200746 effective January 1, 2008 British Columbia: Tobacco Control Act, 200747 effective March 31, 2008 Manitoba: Non-Smokers’ Health Protection Act48 effective October 1, 2004 New Brunswick: Smoke-Free Places Act49 effective October 1, 2004 Newfoundland: Smoke-Free Environment Act50 effective July 1, 2005 Northwest Territories: Tobacco Control Act51 effective January 21, 2007 Nova Scotia: Smoke-Free Places Act52 effective December 1, 2006 Nunavut: Tobacco Control Act53 effective May 1, 2004 Ontario: Smoke-Free Ontario Act54 effective May 31, 2006 Prince Edward Island: Smoke-Free Places Act55 effective December 18, 2002 Quebec: Tobacco Act56 effective May 31, 2006 – May 31, 2008 Saskatchewan: Tobacco Control Act57 effective January 1, 2005 Yukon: Smoke-Free Places Act58 effective May 15, 20

43 http://laws.justice.gc.ca/en/N‐23.6/index.html.

44 http://www.tbs‐sct.gc.ca/pubs_pol/hrpubs/tbm_119/smokwork1_e.asp.

45 http://www.csc‐scc.gc.ca/text/plcy/cdshtm/259‐cd‐eng.shtml.

46 http://www.qp.gov.ab.ca/documents/Acts/T03P8.cfm?frm_isbn=9780779727513.

47 http://www.leg.bc.ca/38th3rd/3rd_read/gov10‐3.htm.

48 http://web2.gov.mb.ca/laws/statutes/ccsm/n092e.php.

49 http://www.gnb.ca/acts/acts/s‐09‐5.htm.

50 http://assembly.nl.ca/Legislation/sr/statutes/s16‐2.htm.

51 http://www.canlii.org/nt/laws/sta/2006c.9/20080515/whole.html.

52 http://www.gov.ns.ca/legislature/legc/statutes/smokfree.htm.

53 http://action.attavik.ca/home/justice‐gn/attach‐en_conlaw_postdiv/consSNu2003c13.pdf.

54 http://www.e‐laws.gov.on.ca/html/statutes/english/elaws_statutes_94t10_e.htm.

55 http://www.gov.pe.ca/law/statutes/pdf/s‐04_2.pdf.

56 http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/T_0_01/T0_01_A.html.

57 http://www.qp.gov.sk.ca/documents/english/Statutes/Statutes/t14‐1.pdf.

58 http://www.legassembly.gov.yk.ca/pdf/bill104_32.pdf.


SMOKE‐FREE MEASURES IN OTHER COUNTRIES

Jurisdiction

Effective Date

Country-wide bans (11)

Ireland March 29, 2004

Norway June 1, 2004

New Zealand

December 10, 2004

Bhutan circa March 2005

Uruguay March 1, 2006

Lithuania January 1, 2007

Iceland June 1, 2007

United Kingdom* July 1, 2007

Scotland March 26, 2006

Wales April 2, 2007

Northern Ireland April 30, 2007

Djibouti March 2, 2008

Panama April 24, 2008

Turkey July 19, 2009

Australia (7 of 8 states/territories)

Tasmania January 1, 2006

Queensland July 1, 2006

Western Australia July 31, 2006

Australian Capital Territory

December 1, 2006

Victoria July 1, 2007

New South Wales July 2, 2007

South Australia October 31, 2007

Argentina (4 of 23 provinces)

Santa Fe March 21, 2006

Tucuman June 29, 2006

Neuquen November 15, 2007

Mendoza February 12, 2008

*The combined effect of smoke-free measures in all regions makes the United Kingdom a smoke-free jurisdiction.

Source: National and Subnational Legislation Requiring Enclosed Restaurants and Bars to be 100% Smoke-free. Rob Cunningham, Michael DeRosenroll, Canadian Cancer Society, September 8, 2008

Jurisdiction

Effective Date

Mexico (2 of 32, including federal district)

Mexico City (Fed. Dist) April 7, 2008

Tabasco August 9, 2008

United States (25 of 51, including D.C.)

California January 1, 1998

Delaware Nov 27, 2002

New York July 24, 2003

Maine January 1, 2004

Connecticut April 1, 2004

Massachusetts July 5, 2004

Rhode Island March 31, 2005

Vermont Sept 1, 2005

Washington December 8, 2005

New Jersey April 15, 2006

Colorado July 1, 2006

Hawaii Nov 16, 2006

Ohio December 7, 2006

District of Columbia (DC)

January 2, 2007

Arizona May 1, 2007

New Mexico June 15, 2007

New Hampshire September 17, 2007

Minnesota October 1, 2007

Illinois January 1, 2008

Maryland February 1, 2008

Iowa July 1, 2008

Utah January 1, 2009

Oregon January 1, 2009

Nebraska June 1, 2009

Montana October 1, 2009

Other

Bermuda April 1, 2006

Guernsey July 2, 2006

Jersey January 2, 2007

Puerto Rico March 2, 2007

British Virgin Islands May 31, 2007

Isle of Man March 30, 2008

Hong Kong July 1, 2009


Articles 9

PRODUCT REGULATION

CANADA’S TREATY COMMITMENTS Under Article 9 of the FCTC,

the Conference of the Parties

(COP), in consultation with

competent international bodies,

will propose guidelines for

testing and measuring the

contents and emissions of

tobacco products and for

regulating these contents and

emissions. Canada must adopt

and implement effective

measures for this testing,

measuring and regulation.

SINCE OUR LAST REPORT: Canada has continued its role as a key facilitator for guidelines

on Articles 9 and 10. No draft guidelines have yet been

produced but the work is continuing.

Canada has now had three years of experience with requiring

all cigarettes to be of reduced ignition propensity. The Tobacco

Control Programme has tested 201 cigarette brands for their

ignition propensity. 28 brands so tested still did not meet the

standard for reduced ignition propensity as of their last test in

2006 or 2007.

MISAPPLICATION OF SMOKING MACHINE TESTING

For decades, many countries have used guidelines established by

the International Standards Organization (ISO) to test and

measures cigarette smoke emissions. The results have been

disastrous to public health.

The ISO method (developed in consultation with tobacco

companies) mandated the use of a smoking machine test whose

results bore little resemblance to actual smoker exposure to the

toxins from a cigarette. The printing of these machine test results

on packs deceived smokers into believing they could reduce the

harms of smoking by switching from cigarettes with higher machine

readings to cigarettes with lower machine readings.

Canada was one of the first countries to try to address concerns

with the ISO method. Since 2001, the federal government of

Canada has required tobacco companies to measure the levels of

identified chemicals in mainstream and sidestream cigarette smoke

using a Canadian ‘intense’ method. Tests are also required on whole

tobacco.

This Canadian ‘intense’ method differs from the ISO method by

increasing the frequency of puffs, and the amount of air inhaled by

the machine and by blocking the filter perforations that dilute the

smoke. In effect, the ‘intense’ method produces higher values than

the ISO method, with smaller differences between cigarette brands.


NUMBER OF OCCASIONS ON

WHICH CIGARETTES HAVE

FAILED IGNITION PROPENSITY

STANDARD TESTS – BY

MANUFACTURER59

Manufacturer / Importer

# of times

Abenaki Enterprise 3

Bastos du Canada Limited

2

Dynasty Co. 4

Giimaa 4

Imperial Tobacco Ltd.

10

JTI-MacDonald Corp. 4

Kretek International 4

Lanwest Manufacturing Technologies

1

Les Entreprise Steeve Lépine Inc.

2

Native One 2

Tabac A.D.L. Tobacco

28

Tabac Lépine Inc. 2

Tabac Tabec 2

Traditional Trading 1

59 Health Canada. Laboratory analysis of

cigarettes for ignition propensity. http://www.hc‐sc.gc.ca/hl‐vs/tobac‐tabac/legislation/reg/ignition‐alllumage/analys‐eng.php.

The values produced by both the standard ISO and ‘intense’ test

methods are reported to Health Canada, and the range of these

values is currently required to be printed on cigarette packages.

Changes are being proposed that will remove the requirement for

reporting on numerical values of yields of six toxic substances on

packages of cigarettes. (See commentary on FCTC Article 10.)

However, requirements for testing for toxic constituents of tobacco

smoke under two smoking conditions and reporting the results to

Health Canada will continue unchanged.

Canada has supplemented machine yields with requirements for

toxicity testing. Manufacturers must

report annually on results of three

toxicity tests, but the results of these

tests have not yet been made public.

IGNITION PROPENSITY STANDARD AND TESTING METHOD

Canada was the first country, and second jurisdiction, following New

York State, to require that cigarettes sold meet flammability

standards. The “Ignition Propensity Standard” required under

federal Tobacco Act regulations require that “Every manufacturer

shall ensure that the cigarettes of every brand that it manufactures

on or after October 1, 2005 burn their full length no more than 25%

of the time when tested on 10 layers of filter paper using American

Society for Testing and Materials (ASTM) International method.”

Health Canada began testing cigarette brand compliance with the

regulations in October 2005 and continues to test. Results of 326

tests conducted between October 2005 and June 2008 have been

made public.

The test results show that cigarettes sold in Canada have failed to

meet the ignition propensity standards on 69 occasions, or roughly

20% of the time.

RECOMMENDATIONS: The federal government should require tobacco manufacturers

to remove from the market cigarettes that do not meet the

standards for reduced ignition propensity and should take other

enforcement action against offenders.

Monitoring for reduced ignition propensity should continue and

any future failures to meet the standard for reduced ignition

propensity should result in swift removal of cigarettes that fail

to meet the RIP (reduced ignition potential) standard from the

marketplace.

The government should routinely make public all data provided

to it by tobacco companies.

Key Development


Article 10

EMISSION AND CONTENT DISCLOSURE

CANADA’S TREATY COMMITMENTS Require manufacturers and

importers of tobacco products

to disclose information about

the contents and emissions of

tobacco products; and

Disclose information about the

toxic constituents and

emissions of tobacco products

to the public.

SINCE OUR LAST REPORT: In May, 2008, Health Canada proposed to end the use of

numerical values on the toxic constituent labels of cigarettes

and other smoked tobacco products.

In November, 2007, the British Columbia government repealed

its regulations requiring testing and disclosure of cigarette

emissions.

For compounds other than the six listed on cigarette labels,

brand-by-brand information on cigarette emissions is no longer

readily available.

REQUIREMENTS FOR DISCLOSURE TO GOVERNMENT Health Canada requires tobacco companies to provide periodic

reports on several aspects of their operations and products,

including:

INGREDIENT DISCLOSURE Manufacturers must report on all ingredients and additives of

tobacco products, as well as test and report on the level of 26

different constituents in whole tobacco.

TESTING AND REPORTING OF SMOKE INGREDIENTS (EMISSIONS) In 1998, British Columbia became the first jurisdiction in the world

to require a brand-by-brand reporting of the contents of cigarettes

and the levels of certain chemicals in tobacco smoke. Following the

adoption of similar federal regulations, B.C. rescinded its

requirements in November 2007.

Federal law requires manufacturers of cigarettes and other

‘designated’ products to use prescribed test methods to test and

report on emission levels of 41 substances in mainstream and

sidestream smoke. Other commonly-smoked tobacco products (like

cigars and cigarillos) are exempt from this requirement.

The test methods required by the federal government (and

previously by the British Columbia government) were


developed to respond to known flaws in the ISO (International Standards Organization) method. Required

Canadian test methods use both the ISO and a modified ‘intense’ method. No method has yet been

established to address the inherent problems of using a machine-test to assess the widely varying

exposure of smokers that results from widely varying smoking behaviours and other complicating factors.

TOXICITY TESTING In addition to cigarette emissions, Health Canada also requires companies to conduct three toxicity tests

annually on each of their tobacco products and to report the finding to government. Requirements for

toxicity testing were introduced in 2005.

OTHER REPORTING REQUIREMENTS Companies are also required to provide annual information on manufacturing procedures, promotional

activities and research activities. They are also required to report tobacco sales on a monthly basis.

LACK OF DISCLOSURE TO THE PUBLIC General information about the harms of tobacco use is

accessible by Canadians, but specific information derived from

the reports from tobacco company reports to Health Canada is

much less accessible. Canadians can learn results of regulated

tests or reports by:

• Reading selected results (for six compounds) on cigarette

packages. (See below.)

• Making an individual request for data from Health Canada

(or, for historic data, from the British Columbia

government website), with the possibility of using the

Access to Information Request process.

• Making an individual request to Health Canada for its

analysis of industry reports and other test results.

In 2005, the House of Commons Standing Committee on

Health heard evidence regarding the failure of Health Canada

to make public the information provided by tobacco companies.

The Committee recommended that “all information to be

submitted to Health Canada under these regulations be made

public.” The government responded that it would “affirm its

ongoing strong commitment to openness and transparency”

and would ensure “the active and timely consideration of

requests to disclose information that may be in the public

interest, under the discretionary provisions of ATIA section

20(6).” Despite this commitment, routine requests for

information have been stalled beyond the statutory time limits for disclosure.60

60 For example, Physicians for a Smoke‐Free Canada requested per‐brand wholesale shipment data on May 13, 2008 and was informed, on

September 29, 2008 that the department has decided that it will no longer make this information public, reversing a long‐standing policy of releasing the information.

(presented to the House of Commons

March 25, 2005)

The Standing Committee on Health has the honour to present

its SIXTH REPORT

Your Committee recommends in this

second report, as part of its study of

the Proposed Regulations Amending

the Tobacco Reporting Regulations,

pursuant to the Tobacco Act, S.C.

1997, c. 13, sbs. 42.1(1), that all

information to be submitted to Health

Canada under these regulations be

made public. If need be, the Minister

of Health should authorize its

disclosure in the public interest in

accordance with Section 20(6) of the

Access to Information Act.

32

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Article 11

TOBACCO PRODUCT LABELLING CANADA’S TREATY COMMITMENTS Adopt measures to ensure that

tobacco products are not

promoted in ways that are

false, misleading, deceptive or

likely to create an erroneous

impression about their

characteristics, health effects,

hazards or emissions.

Ensure that there are rotating

health warning messages that

should cover at least 50% and

must cover at least 30% of the

principal display areas.

SINCE OUR LAST REPORT: Tobacco companies have launched and promoted several new

products, including products which include design elements

that may create erroneous impressions about health effects.

Health Canada has released reports showing that the sales of

tobacco products that do not have health warning messages, or

for which health warning messages are not in compliance with

FCTC requirements, have increased. The government has not,

however, yet strengthened regulations or laws to ensure these

products are appropriately labeled.

High levels of contraband tobacco products continue to be

marketed. In addition to not complying with tax laws, these

products also do not comply with labelling regulations. Both the

tax acts and labelling acts remain unenforced for a significant

share of Canadian tobacco product market.

Health Canada has advanced its preparations for new health

warning messages, and has commissioned significant research

into ways of improving, enlarging and enhancing health

warning messages displayed on cigarette packages sold in

Canada.

1. HEALTH WARNING MESSAGES Canada was the first country in the world to introduce picture-based

warning messages. The warnings that have been displayed on

Canadian cigarette packages since 2001 exceed the minimum

requirements for the FCTC, and are consistent with the

recommendation for larger warnings with pictures.

All cigarettes and most tobacco products sold in Canada display one

of sixteen rotating picture health warning messages. These

message take up 50% of the principal display space (one side in

each of Canada’s two official languages, English and French).

Additional health information is printed or included as a leaflet in

the inside of cigarette packages.


COUNTRIES WITH PICTURE‐BASED WARNINGS61

At least 23 jurisdictions have

finalized requirements for

picture warnings.

The listing below includes the

year of implementation, with

different years where there

have been two or more

rounds of picture warnings.

1. Canada (2001)

2. Brazil (2002; 2004; 2009)

3. Singapore (2004; 2006)

4. Thailand (2005, 2007)

5. Venezuela (2005)

6. Jordan (2005)

7. Australia (2006; rotation of Sets A, B every 12 months)

8. Uruguay (2006; 2008, 2009)

9. Panama (2006)

10. Belgium (2006)

11. Chile (2006, 2007, 2008)

12. Hong Kong (2007)

13. New Zealand (2008; rotation of Sets A, B every 12 months)

14. Romania (2008)

15. United Kingdom (2008)

16. Egypt (2008)

17. Brunei (2008)

18. Cook Islands (2008)

19. India (2008)

20. Taiwan (2009)

21. Iran (2009)

22. Malaysia (2009)

23. Peru (2009)

24. Kyrgyzstan (2009)

25. Djibouti (2009)

26. Latvia (2009 or 2010)

27. Switzerland (2010, rotation of Sets 1, 2, 3 every 24 months)

61 R. Cunningham. Cigarette Package

Warning Size and Use of Pictures: International Summary. Canadian Cancer Society. October 28, 2008.

A. CANADA HAS BEEN SLOWER THAN OTHER COUNTRIES TO RENEW ITS HEALTH WARNING MESSAGES Development of Health Canada’s second wave of picture health

warning messages has been seriously delayed. It took just under

two years for Health Canada to bring its first wave of health

warning message from concept to on-package implementation

(from January 1999 to December 2000). The estimated time when

new graphic health warning messages appear on packages is more

than 18 months away, even though work on their development has

been underway since 2004. In this respect, Canada is behind other

countries, such as Brazil, Singapore, Thailand, Uruguay, and Chile

which have had more than one round of picture based warning

messages.

Hong Kong

India

Brazil

Thailand

Australia

Taiwan


PROTOTYPE WARNING SIZES USED IN HEALTH CANADA EXPERIMENTS

50%

75%

90%

100%

B. HEALTH CANADA’S RESEARCH ON NEW HEALTH WARNING MESSAGES SUGGESTS THAT WARNINGS SHOULD BE MUCH BIGGER Health Canada recently

commissioned several phases of

research to support new health warning message regimes. Findings

from this research suggest that the benefits of picture health

warning will be greatly enhanced if the warning size is increased to

100% (see figure below).62

Other findings from Health Canada commissioned research are that:

• Adult smokers acknowledge that warnings affect their smoking

behavior. (Half say the warnings have made them smoke less

around others and increased their desire to quit, and more than

a third say the warning have got them to try to quit or to

smoke less.) 63

• Adult smokers support these messages. (About nine in ten

think they provide important and accurate information, and

more than 8 in ten support them on the packages.)

• Two thirds of smokers think the current warnings are worn out.

Canadian smokers and youth judge 100% warning as best at

communicating health effects of tobacco use64

62 Environics for Health Canada ‐ HC‐POR‐07‐46 Consumer Research on the Size of Health

Warning Messages – Quantitative Study of Canadian Smokers and Canadian Youth. Summarized by Physicians for a Smoke‐Free Canada – 2008.

63 Ibid.

64 Ibid.

4 4 8

80

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66

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Youth Adult

Key Development


C. HEALTH WARNING MESSAGES ARE ABSENT ON MANY TOBACCO PRODUCTS SOLD IN CANADA As discussed earlier in this report (see Focus on Novelty Products),

tobacco products whose warning labels fall short of FCTC

requirements are legally sold, and are increasingly popular with

young Canadians. These products include cigars, cigarillos, blunts

and some packages of oral tobacco products.

No health warning messages are displayed on the single packages of

youth-oriented flavoured cigarillos, shown left.

In addition to these products, many Canadians are able to purchase

cigarettes which conform neither with tax nor labelling

requirements. These products are sold in the informal ‘black-

market’, and also in the quasi-legal retail outlets on First Nations

territories. [The stores are legal commercial enterprises, the sales

to persons not entitled to First Nations tax exemptions are not].

Some of the untaxed cigarettes sold in these outlets are packaged

in conformity with Canadian law, some are not. Although First

Nations have special taxation rights, there are no exemptions

under Canadian law for non-conforming tobacco packaging. First

Nation smokers, like other Canadians, are entitled to equal

protection under public health law.

Health Canada is not known to have taken any enforcement action

to ensure appropriate labelling of cigarettes manufactured and sold

through known retail outlets on First Nations territories, 65 such as

those sold in baggies.

65 On September 6, 2007, for example, Physicians for a Smoke‐Free Canada informed Health

Canada that tobacco products sold in a ‘smoke‐shack’ on the trans‐Canada highway did not conform with labelling requirements of the Tobacco Act. Health Canada’s enforcement policy does not include notifying complainants of the results of any investigations, but cigarettes packaged without warnings continue to be sold from this outlet (in a new location on the trans‐Canada).

Treaty Breach


“The Department of Health has

found that a significant

proportion of smokers

mistakenly believe that a

tobacco product which displays

the terms ‘light’ or ‘mild’ is less

harmful to their health.”66

66 Regulatory Impact Assessment

Statement. Promotion of Tobacco Products and Accessories Regulations (Prohibited Terms) Canada Gazette. Vol. 141, No. 31 — August 4, 2007.

D. TOBACCO COMPANIES ARE REDESIGNING THEIR PACKAGES TO DIMINISH THE IMPACT OF HEALTH WARNING MESSAGES Tobacco companies are increasingly turning to product and package

design to develop an image for their product (and customer).

Health warning labels are an impediment to their packaging (65%

of adult smokers and 85% of young Canadians recently told

surveyors that they found the warnings made smoking seem “less

attractive”). 67

Tobacco companies have re-shaped their packages to reduce the

overall size or impact of health warnings, such as the new

packaging for Benson and Hedges “super slims” shown below, and

the du Maurier hexagonal package, discussed earlier.

2. DECEPTIVE DESCRIPTORS Although the FCTC requires that

cigarettes are not promoted by

packaging that is false, misleading or

deceptive, cigarettes continue to be

sold in Canada in packages that are designed to penetrate smokers’

awareness of the health consequences of smoking by creating

misleadingly favourable impressions of tobacco products. Canada

has passed no new laws to stop this from happening. Many

Canadians continue to believe that smoking some types of

cigarettes results in their absorbing fewer harmful chemicals.68

67 Environics for Health Canada ‐ HC‐POR‐07‐46 Consumer Research on the Size of Health

Warning Messages – Quantitative Study of Canadian Smokers and Canadian Youth. Summarized by Physicians for a Smoke‐Free Canada – 2008.

68 Canadian smokers were asked in the 2007 CTUMS survey what ‘strength’ of cigarettes they smoked and those who smoked ‘light’ or ‘mild’ cigarettes were asked about their beliefs about these products. About one tenth said that they felt “they reduced the risk to your health” and about one‐fifth said they believed these cigarettes “reduced the amount of tar.” CTUMS 2007, Annual data. Code book.

Treaty Breach


BAT/Imperial Tobacco

continues to use colours

and imagery in ways that

can mislead or deceive

smokers about the health

effects of smoking or

create erroneous

impressions about

smoking.

Each of these 3 versions of

Players cigarettes is equally

dangerous, but many

smokers will think that those

packaged in lighter colours

are less harmful.

Although the terms ‘light’ and ‘mild’ have not appeared on most

cigarette packages since 2007, the terms continue to be used by

smokers and by those who talk about smoking with smokers.

In November 2006, as its response to a complaint filed and pursued

by the Non-Smoker's Rights Association, the federal Competition

Bureau reached voluntary agreements with the major tobacco

companies. The tobacco companies agreed to stop using terms like

‘light’, ‘mild’, ‘ultra light’ and ‘ultra mild’ - but did not agree to stop

making artificial or misleading distinctions between one type of

cigarette and another.69 Agreements with some other

manufacturers followed shortly,70 and by mid-2007 most cigarette

packages no longer displayed these terms.

COLOUR‐CODING DECEPTION Tobacco companies removed the terms ‘light’ and ‘mild’ from their

cigarette package names, but did not end the practice of marketing

their products with distinguishing features that could deceive

smokers. Instead they adapted their marketing practices to the

letter of the agreement, and substituted other brand extensions for

the terms ‘light’ and ‘mild,’ such as ‘smooth’. Many of these terms

are, in themselves, a lifestyle promotion (such as 'Prestige' and

'Distinct').

At the same time, most companies redesigned their packages so

that there were more apparent visual distinctions between different

sub-brands within a brand family. The brands continued to display

machine readings for toxic emissions which varied and thus

contributed to confusion or deception

about whether some types of

cigarettes lead smokers to inhale

fewer or more harmful chemicals.

In August 2007, Health Canada

published notice that it would pass a

regulation that was, to all intents and

purposes, the same as the voluntary agreement reached with the

Competition Bureau. Health groups found that the government's

proposed regulation was inadequate.

On May 31, 2008, a further regulatory change was proposed in the

Canada Gazette that would remove requirements that numerical

information be included in the toxic constituent information printed

on each package.71

69 Competition Bureau. Press release. Competition Bureau Reaches Agreement with the Three

Major Cigarette Manufacturers to Stop Using ‘light’ and ‘mild’ on Cigarette Packages. November 9, 2006.

70 Competition Bureau. Press release. Competition Bureau Reaches Further Agreements with Six Cigarette Companies to Stop Using ‘light’ and ‘mild’ on Cigarette Packages. July 31, 2007.

71 http://canadagazette.gc.ca/partI/2008/20080531/pdf/g1‐14222.pdf.

Key Development


TWENTY‐FIVE YEARS LATER… MISLEADING NUMBERS ARE STILL ON THE PACKAGES

1981: Toronto Star

reports that machine

readings on cigarette

packages are

underestimates of the

volumes of dangerous

compounds actually

smoked.

January 1999: Health

Canada warns consumers

that ‘light’ and ‘mild’

tobacco products “have

the same potential to be

debilitating and lethal.”

May 31, 2001: Canada’s

Health Minister asks

tobacco companies to

voluntarily remove ‘light’

and ‘mild’ terms from

cigarette packages within 100 days.

8 September 2001: 100 days pass without the

cigarette companies removing misleading

descriptors from their packages.

1 November 2001: Health Canada advisory

panel advises that regulations be passed to ban

the use of the descriptors.

27 November 2001: United States' National

Cancer Institute scientific report concludes no

benefit from lower tar cigarettes.

1 December 2001: Notice of Intent published

in Canada Gazette proposing ban on the terms

‘light’ and “mild.

January 2002: Brazil bans use of "any type of

descriptor, on the packaging or in advertising

material, such as: ultra low tar, low tar, smooth,

light, soft, leve, moderate tar, high or any

others that could induce consumers to an

erroneous interpretation as to the tar contained

in cigarettes.”

November 2002: The World Health

Organization Scientific Advisory Committee on

Tobacco Product Regulation recommends a ban

on all misleading health and exposure claims

and related packaging.

December 10, 2002: The

European Court of Justice

rejected a tobacco industry

challenge to the EU directive

banning the terms 'light' and

'mild', 'low-tar', etc.

May 20, 2003: World Health

Organization adopts text for a

global tobacco treaty, the

Framework Convention on

Tobacco Control. The treaty

calls for an end to all

misleading descriptors,

including the use of such terms

as "low-tar" and "light."

June 16, 2003: Complaint

filed by the Non Smokers

Rights Association with federal

Competition Bureau regarding

the deceptive trade practice of labelling

cigarettes as ‘light’ and "mild.”

July 15, 2003: Canada signs the Framework

Convention on Tobacco Control.

September 30, 2003: "Low-tar" and similar

misleading terms are banned on all cigarettes

sold in the European Union.

January 2005: NSRA leads a motion before

the Federal Court of Canada to obtain a court

order to compel the Competition bureau to rule

on their complaint from June 2003.

June 28, 2007: Supreme Court of Canada

upholds Tobacco Act, including its prohibition of

promotion or packaging "likely to create an

erroneous impression."

November 9, 2006: The Competition Bureau

accepts a voluntary agreement with 3 major

tobacco companies to phase out the terms 'light'

and 'mild.'

August 4, 2007: Health Canada proposes

regulations to end the use of the terms 'light'

and 'mild'. Regulations have not yet been

finalized.

May 31, 2008: Health Canada proposes to

remove requirements for numbers to be printed

on the side of tobacco packages.


SMOKERS ARE DECEIVED BY COLOURS The terms ‘light’ and ‘mild’ have been banned

in Britain for 5 years, but British smokers (and

young people) continue to be deceived about

the health effects of cigarette products based

on the way they are packaged. Experimental

subjects told Canadian and U.K. researchers

that they thought that the “gold” pack

contained cigarettes that had less tar, were

less risky and would be easier to quit.72

The FCTC obliges countries, like Canada, to

ensure that tobacco products are not

promoted in ways that are false, misleading,

deceptive or likely to create an erroneous

impression.

Health Canada has not yet implemented ways

to remove all words, numbers and colours

that create this deception.

RECOMMENDATIONS: The federal government should immediately enact regulations to prohibit false and misleading

packaging, including, but not limited to, the terms already covered by the Competition Bureau

agreement. Colours and numbers that have the potential to mislead should also be removed from

packages.

The federal government should accelerate the development of new health warnings, and should

increase the size of these warnings. Surfaces within the package, including the foil and cigarette itself,

should be used for additional disease prevention/health promotion messaging. The quality of the

warnings should be increaed through improved language, content, graphics and innovative messaging

(i.e. reminders of cost, cosmetic effects, surgical risks, etc).

The frequency of rotation of warning messages should be increased without decreasing the number of

warnings in rotation at any time. (The current warnings have been on packages for almost 9 years.)

Revised health warning messages should provide smokers with information about where they can get

cessation support, such as a free ‘quit-line’ number.

The government should require that tobacco products be sold in plain or generic packages.

Cigarette packages should be standardized to the most commonly sold Canadian package form

(“slide-and-shell”), thus preventing the use of the packaging size and shape as a marketing tool.

72 Action on Smoking and Health. Beyond Smoking Kills. 2008.

Smokers thought the cigarettes in the ‘gold’

package on the left:

had less tar (65%)

were less risky (53%)

would make it easier to quit smoking (31%)


Article 12

EDUCATION, TRAINING AND PUBLIC AWARENESS

CANADA’S TREATY COMMITMENTS Promote and strengthen public

awareness of tobacco control

issues, using all available

communication tools, as

appropriate;

Provide public access to

information about tobacco

companies; and

Run training programs in

tobacco control for human

services personnel.

SINCE OUR LAST REPORT: Health Canada’s evaluation of its mass media program

concluded that the short-term campaigns run by the

department were not as effective as campaigns with a

consistent and long-term plan are.

The Government of Canada has shifted advertising

expenditures away from Health and into other departments

(notably National Defence and Human Resources).

There has been virtually no Health Canada paid media presence

on tobacco, although some provincial/territorial governments

and pharmaceutical companies have continued to promote

smoking cessation (and smoking cessation products).

Laval University has terminated its graduate level tobacco

training programme leading to a graduate certificate.

Federal, provincial/territorial and municipal governments as well as

health charities and other agencies throughout Canada are involved

in strengthening public awareness of tobacco use. Canadians

continue to benefit from effective public education strategies.

Although Canadians are relatively well informed about the harms of

tobacco use, there remain significant knowledge gaps.

MASS MEDIA AND PUBLIC EDUCATION

Today there are no Health Canada mass media activities known to

be in place or in development. Some provincial governments

continue to fund tobacco control mass media programmes.

When the Federal Tobacco Control Strategy was launched in 2001,

40% of its five-year $480 million budget was allocated to mass

media activities. 73 The enormous potential benefit of this funding

was lost when: 74

73 Federal Tobacco Control Strategy (FTCS) Summative Evaluation of the first five years 2001‐

2006, p. 60.

74 Ibid. p. 38.

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TRAINING Training is provided to public health and

health-care professionals in a variety of

ways and managed through a variety of

agencies. Funding for training is provided

by federal and provincial/territorial

governments, as well as by health charities

and corporations.

Among the training and professional

development programs currently in place

are:

• Continuing medical education on

smoking cessation (such as that

provided by the Ontario Medical

Association, the Canadian Pharmacists

Association, the Canadian Association

of Dental Hygienists and Quebec’s

Mobilisation des ordres professionnels).

• Conferences and special meetings (i.e.

national, provincial/territorial and regional conferences).

• On-line courses (such as the Ontario Tobacco Research Unit programme,78 which is funded in part by

Health Canada and available without cost to any interested person).

• Training programmes for health care and public health professionals employed by provincial/territorial

health systems (such as those provided by Ontario’s Program Training and Consultation Centre and

Smoking and Health Action Foundation).

• Grants for university-based researchers and graduate students (such as those provided by the

Canadian Institutes for Health Research and the Canadian Tobacco Control Research Initiative).

RECOMMENDATIONS: The federal government should establish and sustain a long-term mass media programme to reduce

tobacco use, with annual funding of at least $15 per smoker (equivalent to federal excise duties on a

single carton of cigarettes).

Federal, provincial/territorial and other governments should continue to support the education,

training and professional development of Canadians involved in tobacco control.

78 Tobacco and Public Health: From Theory to Practice. http://tobaccocourse.otru.org.

0

5

10

15

20

25

30

35

40

2002-03 2003-04 2004-05 2005-06 2006-07

Percentage of Government of Canada advertising expenditures, by selected departments

Health National Defence


Article 13

ADVERTISING, SPONSORSHIP & PROMOTION

CANADA’S TREATY COMMITMENTS Implement a comprehensive

ban on tobacco advertising and

sponsorship by February 27,

2010, or if a comprehensive

ban is not permissible under

the constitution, restrict

advertising, promotion and

sponsorship and require health

warnings on all permitted

advertising; and

Restrict or ban cross-border

advertising from originating

within Canada and cooperate

with other Parties to the FCTC

to eliminate cross-border

advertising.

SINCE OUR LAST REPORT: The Supreme Court of Canada ruled that the 1997 federal

Tobacco Act was consistent with Canada’s Constitution.79 The

court was not asked to decide whether a comprehensive

advertising ban would be considered consistent with the

Constitution.

The federal Minister of Health announced on June 28, 2007 his

intention to “close the loopholes” in Canada’s Tobacco Act.80

Tobacco companies resumed direct advertising (beginning in

November 2008) in publications like newspapers.

Display bans on

tobacco products have

come into effect

throughout most of

Canada.

Tobacco companies

are actively recruiting

retailers to promote

their brands to

customers.81

The Quebec government introduced regulations to restrict the

size and place of tobacco advertisements in print publications,

and to require health warnings on such ads.82

79 Supreme Court of Canada Judgments:

http://csc.lexum.umontreal.ca/en/2007/2007scc30/2007scc30.html.

80 Health Canada Press Release, June 28, 2007. Health Minister Clement welcomes the unanimous decision of the Supreme Court on tobacco advertising http://www.hc‐sc.gc.ca/ahc‐asc/media/nr‐cp/_2007/2007_78‐eng.php.

81 Tomorrow for Tobacco. YCM. July 2008. http://www.conveniencecentral.ca/ocsa_update.asp?sid=1E979C82E9A84EFA8DDA2CA92D6DA961.

82 Quebec Tobacco Act Regulations (R.S.Q., c. T‐0.01, s. 19, s. 25, 1st par., subpars. 1, 2 and 4, and s. 29.1) available at: http://www.msss.gouv.qc.ca/sujets/santepub/tabac/index.php?home.


JTI ADVERTISEMENTS IN CANADA, 2008

Top: Time Magazine,

Canadian Edition

July 28, 2008 (unregulated)

Below: VOIR Magazine, July

3, 2008

Tobacco companies are once again advertising in Canada,

and Canada has not yet met its obligations under the FCTC to

require these advertisements to contain health warning

messages. Nor has Canada implemented other required FCTC

measures to prevent tobacco marketing.

Canada does not have a comprehensive advertising ban. The

situation stems from the federal government’s response to the

Supreme Court ruling in 1995 that the government had failed to

justify a total ban. Although the government initially responded to

the judgment by saying that it had the evidence to justify the ban,

it later decided to introduce a weaker law instead. As a result, the

Supreme Court has never been given the opportunity to review a

total ban in light of knowledge gained after 1990 (which was the

year of the trial of the Tobacco Products Control Act, and therefore

the last year in which evidence to support arguments in favour of a

total ban on advertising was submitted to courts).

The Supreme Court ruled in June 2007 that restrictions on tobacco

advertising under the Tobacco Act were consistent with the

Constitution, but was neither asked nor volunteered a ruling on

whether a comprehensive ban would be constitutional.

Provincial governments also have the legal power to ban

advertising. Quebec’s Tobacco Act and its regulations are stronger

than the federal law as they prohibit advertisements in bars and

through direct mail, modes of delivery permitted under federal law.

Eight provinces and three territories (Alberta, British Columbia,

Manitoba, Nunavut, Ontario, Prince Edward Island, Quebec,

Saskatchewan, the Northwest Territories, Nova Scotia and Yukon)

have implemented bans on retail displays of tobacco, and New

Brunswick’s ban will come into effect in January 2009.

Newfoundland and Labrador is the only provinces to have taken no

action to ban tobacco displays. The federal government has elected

not to use its own powers to this effect.

The federal Tobacco Act (1997) allows non-lifestyle, brand

preference tobacco advertisements in bars and other places where

young persons are not allowed, in direct mail to adults and in

newspapers and other publications that do not have a

disproportionate youth audience. No health warnings are yet

required on such promotions, despite the clear FCTC requirement

that these be in place. Health Canada proposed regulations to

require health warnings on permitted advertising in 2004, but has

taken no subsequent regulatory action.

Treaty Breach


CIGARETTES ARE NOW

PROMOTED BY RETAILER

WORD-OF-MOUTH

"The retailer is [no longer]

someone who just visually sells

the product behind the

counter. He is someone who

can provide information."

Liel Miranda

Imperial Tobacco Canada

"You can expect our company

to not be paying for retail

display space. But that is not

meant to imply that we are

taking trade spending off the

table, not at all. In fact, we will

migrate that trade spend into

pay-for-performance kind of

programs.”

Ray Funk,

Rothmans, Benson & Hedges

action. The Quebec government has moved to fill the federal

regulatory void, and tobacco advertisements in that province are

limited in size and placement, and must carry health warning

messages.

A CHANGING RETAIL ENVIRONMENT

Tobacco companies are

responding to bans on

retail displays of tobacco

products by shifting

promotional activities to

the recruitment and

training of retailers as

promotional agents.

There are no limits in Canada on the number of tobacco retailers.

Rothmans, Benson & Hedges (RBH) stated in its 2007 Annual

Report that there are 32,000 retail outlets across Canada, or

roughly one retail outlet for every 145 Canadian smokers. This is

about three times the concentration of tobacco retailers in France,

which controls tobacco retail outlets, and where there is one

tobacco retailer for every 450 smokers.

There are no restrictions in Canada on tobacco companies

employing retailers to promote tobacco products through word of

mouth. Tobacco companies have removed point of purchase

promotions, but are entering into new contractual agreements with

retailers to promote their brands.

BANS ON DISPLAYS OF TOBACCO PRODUCTS AT RETAIL

Jurisdiction Legislative Authority Effective Date

Alberta Tobacco Reduction Act July 1, 2008

British Columbia Tobacco Control Act Mar 31, 2008

Manitoba Non Smokers’ Health Protection Act Jan 1, 2004

New Brunswick Act to Amend the Tobacco Sales Act Jan 1, 2009

Newfoundland & Labrador

Northwest Territories Tobacco Control Act Mar 2, 2006

Nova Scotia Tobacco Access Act Mar 31, 2007

Nunavut Tobacco Control Act Feb 1, 2004

Ontario Smoke-Free Ontario Act May 31, 2008

Prince Edward Island Tobacco Sales and Access Act Jun 1, 2006

Quebec Tobacco Act, 2006 May 31, 2008

Saskatchewan Tobacco Control Act Mar 11, 2002

Yukon Smoke-Free Places Act May 15, 2009


WORLD HEALTH ORGANIZATION DATA SHOWS 83 COUNTRIES HAVE BROADER MEASURES TO CONTROL TOBACCO ADVERTISING

The MPOWER report released by the World Health Organization in

February 2008,83 identifies thirteen categories of advertising

restrictions. Of these, 4 were in place in Canada as a matter of

national law (and one other, bans on point of sale displays, will

soon be in effect in all but one province as a result of

provincial/territorial laws). In this global ranking of national-level

measures, Canada had 4 of 13 measures in place and tied for 84th

place: 83 countries had more than 4; 8 countries had 4 measures in

place and 103 countries had fewer than 4 measures in place.

CANADA’S ADVERTISING BANS COMPARED TO OTHER COUNTRIES:

Type of advertising restriction In

Canada?

# of countries

implementing this measure

National TV and Radio Yes 118

International TV and Radio No 29

Local Magazines and Newspapers No 92

International Magazines and Newspapers No 30

Billboard and Outdoor Advertising Yes 94

Point of Sale Yes* 52

Internet No 26

Free Distribution in Mail or by Other Means

Yes 75

Promotional Discounts No 60

Non-tobacco Products Identified with Tobacco Brand Names

No 61

Brand name of Non-Tobacco Products used for Tobacco Products

No 46

Appearance of Tobacco Products in TV and/or Films

No 66

Tobacco Brands in Sponsored Events Yes 73

*no national restrictions, but provincial/territorial laws in effect

RECOMMENDATIONS: Canada should implement a comprehensive ban on tobacco

advertising.

Promotional payments by tobacco companies to retailers should

be banned.

All provinces should ensure regulations banning point of sale

displays and promotion of tobacco products are as strong as

possible. Newfoundland and Labrador should accelerate the

passage of this measure.

83 WHO’s MPOWER report can be accessed at:

http://www.who.int/tobacco/mpower/mpower_report_full_2008.pdf.


Article 14

TOBACCO DEPENDENCE AND CESSATION

CANADA’S TREATY COMMITMENTS Take effective measures to

promote cessation of tobacco

use and adequate treatment

for tobacco dependence;

Develop and disseminate

cessation and treatment

guidelines that are appropriate,

comprehensive, integrated and

based on scientific evidence

and best practices;

Endeavour to include diagnosis

and treatment in national

health and education programs

and establish facilities and

rehabilitation centre programs

for diagnosing, counseling,

preventing and treating

tobacco dependence; and

Collaborate with other parties

to facilitate accessibility and

affordability for treatment of

tobacco dependence.

SINCE OUR LAST REPORT: As part of the renewal of the FTCS, Health Canada has re-

vamped its public programming, and now focuses on national,

regional and community efforts to support Canadian smokers’

cessation efforts

Under the Canadian federal system, both the provincial/territorial

and federal levels of government have a role in helping smokers

quit. Health care services are primarily a provincial/territorial

responsibility, and both federal and provincial/territorial

governments are engaged in health promotion.

Health Canada has supported:

• college and university setting cessation projects.

• engaging primary care health professionals and public health

professionals in tobacco cessation.

• practice-based research on hospital-based cessation programs.

• workplace cessation projects.

• tobacco cessation with mental health and addiction clients.

• development of best practice guidelines for some health

professions (nursing) and for public programs .

• development of a nationwide system of smokers’ helplines by

funding pilot programs in six provinces.

• networking of all helplines and developing an evaluation

framework for helplines.

• regionally and locally designed and run cessation programs.

• innovative and experimental cessation programs.

• web-based resources to aid quitting.


Provincial governments run a variety of programs supporting

smoking cessation. These programs are often delivered with the

financial support of the federal government and in collaboration

with civil society organizations. Provincial measures also include:

• a national network of ‘quitlines’, now available in all provinces

(four provinces contribute financing).

• physician services provided through public health care.

• Quit and Win contests in many provinces and regions.

• reimbursement of some costs for stop-smoking medications in

Ontario, Québec, Prince Edward Island and Nova Scotia.

There is a high level of collaboration and integration in program

design, delivery and evaluation among governments, health

agencies, employers and civil society organizations in the field of

smoking cessation. Several civil society organizations are actively

involved in supporting smoking cessation, notably the Heart and

Stroke Foundation, the Canadian Cancer Society and The Lung

Association.

CANADA COMPARES WELL WITH OTHER COUNTRIES In the World Health Organization MPOWER review of tobacco

control measures implemented across the world, Canada was one of

only 4 countries which had all of the identified elements of a

cessation strategy: (toll-free quit line, availability of nicotine

replacement and buproprion, and smoking cessation programs

available in primary care, hospital, health professional, community

and other settings).

RECOMMENDATIONS: Canadian governments should continue to work collaboratively

in providing support for smokers who wish to quit, and should

consider extending public support for quitting through:

o Printing a toll-free ‘Quitline’ number on cigarette packages;

o Increasing cessation support through primary health care

(including physician services and public health clinics); and

o Developing incentives and other motivations for smokers,

employers and communities to increase quit rates.


Article 15

ILLICIT TRADE

CANADA’S TREATY COMMITMENTS Recognize that eliminating the

illicit tobacco trade is essential

to tobacco control;

Clearly mark the jurisdiction of

destination on each package

for sale in Canada;

Consider developing a practical

tracking and tracing regime;

Monitor and collect data on

crossborder tobacco trade;

Strengthen legislation against

illicit trade in tobacco products;

Ensure that all confiscated

manufacturing equipment,

counterfeit and contraband

cigarettes and other tobacco

products are destroyed or

otherwise disposed of in

accordance with national law;

Monitor, document and control

tobacco in transit;

Adopt measures to enable the

confiscation of proceeds

derived from the illicit trade in

tobacco products;

Cooperate with other parties

and agencies to control

smuggling; and

Adopt and implement further

measures, including licensing,

to prevent illicit trade.

SINCE OUR LAST REPORT: The governments of Canada and 10 provinces reached an

agreement with 2 multinational tobacco companies to settle

issues arising from their involvement in smuggling in the

1990s. In exchange for pleading guilty to one count each of tax

evasions and making payments to provinces and federal

governments of over $1 billion, the companies are exempt

from future prosecution. The agreement between tobacco

companies and the Government of Canada extends until 2023

and payments to government are contingent on future tobacco

sales revenues.84

The RCMP announced a Tobacco Contraband Enforcement

Strategy.85

The Canada Revenue Agency announced a new tax stamp

regime by early 2010 (delayed from summer 2008). 86

Canadian Revenue Minister announced the federal government

would invest $20 million in as-yet unspecified anti-contraband

measures in collaboration with Health Canada, the RCMP and

Canadian Border Services Agency.87

BAT’s subsidiary, Imperial Tobacco Canada Ltd., funded a

conference on contraband tobacco, which included a call

calling for a reduction of tobacco taxes.88

The Public Safety Committee of the House of Commons held a

short series of hearings investigating the contraband tobacco

problem.

84 The settlements and agreements between governments can be viewed on the web‐site of

the Canada Revenue Agency at : http://www.cra‐arc.gc.ca/gncy/tbcc/menu‐eng.html.

85 2008 Contraband Tobacco Enforcement Strategy. http://www.rcmp‐grc.gc.ca/fio/tobacco_strategy_2008_e.htm#executive.

86 Revenue Canada News release Minister of National Revenue unveils a new state‐of‐the‐art excise stamp to combat contraband tobacco. September 4, 2008. http://www.cra‐arc.gc.ca/nwsrm/rlss/2008/m09/nr080904‐eng.html.

87 Canada Revenue Agency. News Release. Government of Canada invests $20 million in anti‐tobacco activities. August 29, 2008.

88 Canadian Convenience Stores Association Press release. National groups call on federal government to take action on contraband tobacco. November 2, 2007. http://www.newswire.ca/en/releases/archive/November2007/02/c3456.html.


Eight health agencies filed

an official complaint to the

Canadian Revenue Agency

regarding contraband

originating from St.

Regis/Akwesasne.89

The Canadian Tobacco

Manufacturers Council

released the third annual report of its consumer research on

illegal cigarette purchases.90

Budgetary measures were introduced by the federal, Ontario

and Quebec government to control contraband, including

restricting possession and importation of cigarette

manufacturing equipment to persons holding a tobacco

manufacturer’s licence.

CONTRABAND TOBACCO: A GROWING PUBLIC HEALTH

CRISIS Contraband tobacco sales weaken the impact of tobacco tax

policies, which are a key public policy measure to reduce tobacco

use. The increase in contraband tobacco sales in central Canada in

recent years is not only reducing the effect of existing tobacco

taxes and eroding government willingness to increase tobacco

taxes, it is also weakening a number of other components of

Canada’s comprehensive approach: monitoring tobacco use is

difficult in a black-market environment, health messaging is absent

from contraband tobacco products and youth access provisions are

ignored in contraband transactions.

89 Letter dated October 10, 2007 to Hon. Gordon Connor, Minister of Revenue, from Canadian

Cancer Society, Coalition québécoise pour le contrôle du tabac, Action on Smoking and Health, Non‐Smokers’ Rights Association, Canadian Council for Tobacco Control, Canadian Dental Association, Ontario Campaign for Action on Tobacco.

90 GFK Research Dynamics. National Study for the Canadian Tobacco Manufacturers Council. September 2008. http://www.imperialtobaccocanada.com/onewebca/sites/IMP_5TUJVZ.nsf/vwPagesWebLive/DO65HJNQ?opendocument&SID=&DTC=&TMP=1.

Despite all these

activities and

announcements, the

number of contraband

tobacco products sold

remains high.


To date, no level of

government has provided

a studied estimate of the

volume of contraband

Currently, the largest

proportion of all contraband

tobacco seized by the RCMP

originates from illicit

manufacturers on the US side

of the Akwesasne Territory.

The Cornwall/Valleyfield area is

the hub of extensive smuggling

activities between ports of

entry.

Royal Canadian Mounted Police

Contraband Tobacco

Enforcement Strategy,

2008, p. 14.

CONTRABAND TOBACCO TRADE: STRADDLING THE BORDERS WITH MOHAWK TERRITORIES

Canada’s illicit trade in tobacco runs across the politically sensitive

boundaries of a small number of Canada’s First Nations

communities, including: Kahnawake Mohawk Territory, Quebec; Six

Nations First Nation, Ontario; Tyendinaga Mohawk Territory,

Ontario; Akwesasne, Ontario and Quebec/St. Regis Mohawk

Reservation, New York State.

Political tensions between the leadership of these communities and

the Canadian and American governments have resulted in law

enforcement agencies in both countries being reluctant and

unwilling to enforce the laws against unlicensed cigarette

manufacturing and sales in these communities.

A HIGH CONCENTRATION IN SOME FIRST NATIONS TERRITORIES

Communities Population

Number of Smoke Shops/ Shacks91

Residents per smoke shack

Kahnawake 8,00092 125 64

Six Nations 11,29793 100 112

Tyendinaga 2,20094 40 5

Kanesatake 134195 28 47

Curve Lake 741 10 7

Kitigan Zibi 2500 12 208

91 RCMP, Contraband Tobacco Enforcement Strategy, 2008, p. 14.

92 http://www.kahnawake.com/community/

93 http://www.sixnations.ca/CommunityProfile.htm.

94 http://www.tyendinaga.net/history/index.html.

95 http://www.ainc‐inac.gc.ca/nr/prs/m‐a2000/00146_fsa_e.html.


A SETTLEMENT THAT LEAVES MANY ISSUES UNSETTLED

On July 31, 2008, the federal Minister

of Revenue announced that federal

and provincial/territorial governments

had reached plea agreements with

Canada's two largest tobacco companies, Imperial Tobacco Canada

Ltd. (ITL) and Rothmans, Benson & Hedges (RBH) related to their

involvement in tobacco smuggling in the late 1980s and early

1990s. The comprehensive settlement agreements include four

elements:

• Admission of guilt

The companies signed an Agreed Statement of Facts with the

Crown and pled guilty to a single count of violating section

240(1)(a) of the federal Excise Act: “aiding persons to sell or

be in possession of tobacco products manufactured in Canada

that were not packaged and were not stamped in conformity

with the Excise Act and its amendments and the Ministerial

regulations.”

• Payment of fines

The companies paid fines of $200 million for BAT/Imperial

Tobacco Canada Ltd. $100 million for Philip Morris/Rothmans,

Benson & Hedges, related to their role in the contraband trade

during this period.

• Payment of $50 million to the federal government

to compensate for their services in brokering payments to the

provinces and their anti-smuggling activities during the period.

• A resolution of all potential civil claims

Under the civil settlements, ITL will pay a percentage of annual

net sales revenue going forward for 15 years up to a maximum

of $350 million. RBH will pay $400 million over a 10-year

period. Both companies will also pay $50 million each before

the end of 2008 to help fund the federal government’s new

Contraband Tobacco Enforcement Strategy.

• Agreement to a compliance protocol to help control the

contraband market.

The companies will establish internal compliance programs,

including a “Know Your Customer” program to enhance

accountability for the distribution of tobacco throughout the

supply chain.

In total, the two companies will pay up to $1.15 billion in fines and

civil settlements to the federal government and 10 provinces, with

the payments based on percentages agreed upon by all the

governments. Ontario and Quebec will take the largest portions,

“There are no winners in this

because the industry has

addicted a whole bunch of

young people who then

became lifetime annuities for

these companies…. Over time

the companies will financially

benefit. And literally thousands

of people will die in the future

as a result of this crime.’”

Non-Smokers’ Rights

Association

"Although the corporations

entered a guilty plea, the

individuals who oversaw the

crime have been allowed to

retire in peace. They have not

been held to account for their

role and will now never be held

to account. Senior

management - including many

of the most prominent

Canadian business figures -

have been allowed to walk."

Physicians for a Smoke-Free

Canada

Key Development


because they were most impacted by the smuggling in the 1990s.96

These Agreements are similar to the agreement reached by the

European Union (EU) with Philip Morris International (PMI),

although in that case there was no admittance of guilt.

Consequential to the settlement were operational decisions of the

federal government and one of the tobacco companies involved. On

the same day as the settlements disclosure, Philip Morris

announced an offering for the purchase of the remaining publicly

held shares of Rothmans Benson & Hedges.97 On the day following,

the federal government announced that the entirety of its receipts

from the settlement for 2008 would be allocated to a buy-out for

Ontario tobacco farmers.

No health group applauded or has publicly supported this resolution

of the contraband issue. Concerns raised include:

• The failure to hold the executives who presided over the illegal

operations responsible for their actions.

• The failure to initiate prosecutions for violations of the Criminal

Code such as for fraud, conspiracy and benefitting from the

proceeds of crime.

• The decision to collect only a fraction (about one quarter)98 of

the government revenues lost as a result of industry actions,

and no assessment of interest or penalties.

• The failure to include calculations of the additional revenues

lost when governments decided to reduce taxes to make

tobacco smuggling a less attractive business to criminal

operations.

• The failure to include calculations of the increased profits made

by companies as a result of the increase in youth and young

adult smoking during the 1990s, nor the health care costs that

will be incurred by governments in the future as a result of

increased smoking rates.

• The failure to address the needs of other victims of the illegal

tobacco sales and the resultant tax rollback, such as the young

people who became addicted as a result of cigarettes being

more affordable.

96 More information is available at: www.cra‐arc.gc.ca/nwsrm/rlss/2008/m07/nr080731b‐

eng.html and www.cra‐arc.gc.ca/gncy/tbcc/menu‐eng.html.

97 Rothmans Inc. Press release: “Rothmans Inc Announces take‐over offer by Philip Morris International” July 31, 2008.

98 From a BAT document written in the 1990s, it can be estimated that taxes not paid by these two companies totaled about $4 billion (http://legacy.library.ucsf.edu/tid/beh61a99),

“[The RCMP] had Imperial cold,

on the ground screaming. [But]

they reached down and gave it

a hand and pulled them up and

said, 'Ah, give us 50 million

bucks and we'll forgive and

forget.'"

“The RCMP knows all about

this. They could have walked in

and just handcuffed everybody

at Imperial… [but] did "not

have the guts of a field mouse

to go after the executives of

the company."

Paul Finlayson

Former Executive

Imperial Tobacco/IMASCO

Montreal Gazette,

September 6, 2008


• The negotiation of the agreement in secret and the agreement to keep all related documentation

secret.

• The absence of involvement of any health ministries in determining appropriate terms of a settlement.

• The entry-into-force of a multi-year agreement between governments and tobacco companies in

which government benefit is contingent on future tobacco sales and which contains no health

measures.

THE OTHER SHOE: THE CASE AGAINST JTI ‐ MACDONALD

The settlement with Imperial Tobacco and Rothmans, Benson & Hedges was much smaller than the

amount being sought in a related court case. The federal and provincial governments are currently

seeking $10 billion from JTI-Macdonald (JTI-MC). In addition, JTI-Macdonald executives have been

charged with Criminal Code violations. Trials are pending.

RECOMMENDATIONS:

TO ADDRESS ILLEGAL MANUFACTURE

Cut off the flow of raw materials to unlicensed manufacturers by prohibiting suppliers of raw tobacco,

cigarette filters and other inputs from selling these materials to anyone who cannot produce a valid

manufacturing licence.

Persuade the U.S. federal government to shut down illegal manufacturing operations on the U.S. side

of Akwesasne.

Establish a minimum bond of at least $5 million to obtain a federal or provincial/territorial tobacco

manufacturing licence.

Encourage First Nations to tax tobacco products in their territory, at the same rate as

provincial/territorial governments, and accelerate the ability of First Nations to impose their own

tobacco taxes.

Set strict quotas and a refund requirement to limit the amount of provincial tax-exempt cigarettes

available in First Nations.

Require First Nations vendors to pay an amount equivalent to provincial tobacco taxes up front, when

they purchase their inventory from manufacturers or wholesalers, and then get a rebate from their

provincial government only if they can prove that the product was sold to an eligible First Nations

person.

TO ADDRESS ROLE OF LICENSED MANUFACTURERS

Introduce legislation that holds all tobacco manufacturers strictly liable if their products are seized on

the smuggling market.

Introduce an effective tracking and tracing system to help law enforcement authorities identify where

legitimately manufactured products leave the legitimate supply chain and enter the contraband

market.

Revoke licences of tobacco manufacturers acting unlawfully.

Support an investigation by Canada’s Auditor General or another independent authority into the RCMP

and others into the tobacco smuggling crisis of the 1990s and the resultant resolution.


SCHEDULE OF PAYMENTS AGREED TO BY CANADIAN GOVERNMENTS AND TOBACCO

COMPANIES, JULY 31, 200899

PAYMENT SCHEDULE ($ MILLIONS) 100

2008 2009 2010 2011-2018 2019-2023 Total

Imperial Tobacco Canada Ltd.

200 (1) 200

50 (2) 50

30 30 30 per year`

10 per year

350

250 30 30 240 50 600

Rothmans, Benson & Hedges Inc.

100 (1) 100

50 (2) 50

50 35 35 35 per

year 400

200 35 35 280 550

Canada Stipend (25) (25) (50)

Total 450 40 40 65/520 10/50 1100

1. Criminal Fine 2. Contribution

DISTRIBUTION OF FINES AND PENALTIES AMONG JURISDICTIONS101 (ALL DOLLAR AMOUNTS IN MILLIONS)

% Total ($) 2008 ($)

2009 ($)

2010 ($)

2011-18 ($)

2019-23 ($)

Alberta 1.545 17.0 5 1.3 1.3 1.6 1.0/6.9

British Columbia 4.200 46.2 9.3 2.5 2.5 8.0 3.1/21.8

Manitoba 1.055 11.6 3.4 0.9 0.9 1.1 0.7/4.7

New Brunswick 2.000 22.0 6.5 1.7 1.7 2.1 1.3/9.0

Newfoundland & Labrador

2.050 22.6 6.6 1.8 1.8 2.2 1.3/9.2

Nova Scotia 2.500 27.5 8.1 2.2 2.2 2.6 1.6/11.2

Ontario 14.267 156.9 46.1 12.3 12.3 15.1 9.1/64.0

Prince Edward Island

0.261 2.9 0.8 0.2 0.2 0.3 0.2/1.2

Quebec 19.134 210.5 61.8 16.5 16.5 20.2 12.3/85.9

Saskatchewan 0.727 8.0 2.4 0.6 0.6 0.8 0.5/3.3

Canada 52.261 574.9 300 0.0 0.0 10.9 34.0/237.8

Total 100 1100 450 40 40 65 65/455

99 Settlement documents are available at: www.cra‐arc.gc.ca/nwsrm/rlss/2008/m07/nr080731b‐eng.html and

www.cra‐arc.gc.ca/gncy/tbcc/menu‐eng.html.

100 Schedule A to the Agreement.

101 Schedule B to the Agreement.


Article 16

SALES TO MINORS

CANADA’S TREATY COMMITMENTS Under Article 16 of the FCTC,

Canada has committed to

implement measures to

prohibit the sale of tobacco

products to minors, which may

include:

Requiring signage at retail

stating that tobacco sales to

minors are prohibited and that

proof of age is required;

Banning the use of tobacco

displays where tobacco

products are directly

accessible;

Prohibiting the manufacture

and sale of candy cigarettes;

Ensuring that tobacco vending

machines are not accessible to

minors;

Prohibiting the distribution of

free tobacco products to the

public, and especially minors;

and

Banning the sale of individual

or small packages of

cigarettes.

SINCE OUR LAST REPORT: Health Canada released the results of the fourth national Youth

Smoking Survey, which showed 28% of under-age smokers

obtain their cigarettes from retailers, and that 72% obtain

them from social sources.

The federal and provincial governments in Canada have laws

banning the sale of tobacco products to young persons. Federal law

prohibits tobacco sales to persons under 18 years of age, and seven

provinces/territories have established 19 years as the minimum

age. Two provinces (Alberta and Nova Scotia) have also introduced

laws making it illegal for young persons to possess tobacco

products, against the recommendations of the health community.

Significant enforcement energies and resources are devoted to

policing the sale of cigarettes to young persons.

Canada has implemented most of the measures recommended or

required by Article 16 of the FCTC:

• Cigarette vending machines, once common in Canada, can only

be used in very restricted adult-only venues, and are banned in

several provinces.

• Federal law requires the display of signs at retail stating that it

is against the law to sell cigarettes to persons under 18. Seven

provinces require additional signage at retail.

• Free distribution of cigarettes in Canada is banned.

• Self serve retail displays are banned.

• Cigarettes cannot be sold individually, either to youth or to

other persons. (Other products, such as cigarillos and blunts,

can be sold in single units.)

Canada has not yet banned the sale of candy cigarettes, although

Nunavut territory has. The Nova Scotia legislature has passed a law

banning candy cigarettes, but the government has not yet

proclaimed it into force.102 The Yukon Territory has established

regulatory authority to ban candy cigarettes.

102 Tobacco Access Act. and Yukon Smoke‐free Places Act.


Quebec law prohibits the sale of tobacco products in some places

designed for young persons’ use, such as the grounds and buildings

of colleges and universities and buildings intended mainly for the

presentation of sports, recreational, cultural or artistic activities.

Retailer compliance with laws banning the sale of tobacco products

to youth has increased in recent years. A study commissioned by

Health Canada in 2007 found that under-aged secret shoppers were

able to buy cigarettes from surveyed stores only 14% of the

time.103

About three-quarters of under-aged smokers report that they

obtain their cigarettes from social (i.e. non-retail) sources. Although

it is also an offence for non-retailers to provide cigarettes to young

persons, little effort is focused on the supply of tobacco to young

persons from non-retail sources.

SOURCES OF CIGARETTES, BY SEX, GROUPED GRADES, AND SMOKING STATUS, CANADA, 2006‐07 104

Retail Sources (%) Social Sources (%)

Male youth 35.4 64.6

Female youth 19.4 80.6

Grades 5-6 # 96.5

Grades 7-9 11.5 88.5

Grades 5-9 10.9 89.1

Grades 10-12 35.7 64.3

Daily smoker 41.2 58.8

Non-daily smoker 35.8 64.2

Experimental smoker 13.7 86.3

Total 28.0 72.0

RECOMMENDATIONS: Canada should ban cigarette vending machines.

Canada should increase the federal minimum age for cigarette

sales from 18 to 19.

Federal access laws should be strengthened by requiring that

retailers display the number of a toll-free complaint line for the

reporting of infractions on any required sales to minors

signage.

Canada should pass a law banning the sale of candy cigarettes

as the government of Nunavut has done.

103 Minors aged 15, 16 and 17 were sent into stores in 30 Canadian cities in 10 Canadian

provinces. A total of 5,588 stores were visited. The study was conducted by Corporate Research Group for Health Canada and the results are posted at http://www.hc‐sc.gc.ca/hl‐vs/tobac‐tabac/research‐recherche/eval/2007_result‐eng.php.

104 Health Canada and University of Waterloo. Youth Smoking Survey, 2006‐2007.

PERCENTAGE OF RETAILERS SURVEYED WHO WERE WILLING TO SELL CIGARETTES TO CANADIAN CHILDREN AGED 15 ‐ 17

1995 – 52%

1996 – 39%

1997 – 33%

1998 – 39%

1999 – 30%

2000 – 30%

2002 – 20%

2003 – 32%

2004 – 18%

2005 – 19%

2006 – 18%

2007 – 14%

RETAILERS WILLING TO SELL TO MINORS AGED 15‐17 BY PROVINCE, 2007

Newfoundland – 0%

Prince Edward Island – 3%

Saskatchewan – 11%

Ontario – 11%

Nova Scotia – 11%

New Brunswick – 13%

Alberta – 13%

British Columbia – 18%

Quebec – 21%

Manitoba – 25%


Article 17

TOBACCO FARMING

CANADA’S TREATY COMMITMENTS Promote economically viable

alternatives for tobacco

workers, growers and, as the

case may be, individual sellers;

and

Cooperate with other FCTC

parties and competent

international and regional

intergovernmental

organizations to promote these

activities.

SINCE OUR LAST REPORT: The federal government has announced a $300 million program

to help individual tobacco farmers exit from tobacco farming,

but has made no commitment to phase out tobacco growing in

Canada.

Tobacco growing in Canada has been in decline since the 1970s,

but the rate of decline is accelerating. In the 1970’s there were

over 3,000 tobacco farms in Canada, a number that had declined to

about 650 at the beginning of 2008.

The transition from tobacco farming has happened both with and

without public support. Over $100 million dollars was spent by

federal and provincial governments in the late 1980s and early

1990s, and about $70 million spent again in April 2005 in transition

programs for tobacco farmers. In August 2008, a further $300

million of federal funding was announced.

Canada has made no commitment to follow the example of

Australia, where, once the exit strategy was complete, tobacco

growing was no longer permitted.

RECENT HISTORY OF TOBACCO FARMING

Almost all of Canada’s tobacco is sold through the Ontario Flue-

Cured Tobacco Growers’ Marketing Board (OFCTGMB), a grower-

managed supply management system established in 1957.

Ontario tobacco farmers have historically provided the lower leaves

of their tobacco plants to manufacturers of cigarettes for the

Canadian market and the top leaves to the export market. As a

result, domestic and export sales are inherently linked.

The Ontario tobacco crop has declined precipitously. Some of this

decrease is a result of decreased export sales, and some results

from declining legal domestic consumption. The growth of the illegal

market is estimated to have also resulted in a decrease in sales.

Two other factors have contributed to reduced farm sales: more

efficient production by tobacco companies and increased imports of

cigarette leaf.105

105 Physicians for a Smoke‐Free Canada. Recent Trends in Tobacco Agriculture in Canada. July

2008.


A PRIVATE SUBSIDY

Tobacco manufacturers have been paying an average of $60 million a year in make-up payments to help

sustain tobacco agriculture in Canada. With Canada’s shorter growing season and higher cost of

agricultural inputs, it is not possible for Canadian tobacco farmers to produce tobacco at a price

competitive with farmers in countries like Brazil and Malawi. The mechanism found to allow Canadian

tobacco farming to be economically viable was a system of “make-up payments” provided by tobacco

companies through the Marketing Board (OFCTGMB) to farmers.

Since 1978, tobacco companies have made annual agreements with the board to guarantee a purchase

price for the entire Ontario crop. After harvest, leaf is sold at auction with domestic buyers paying prices

in the high range of domestic prices for middle and bottom leaves which are favoured by Canadian

smokers. Export buyers pay prices in the low range, near world prices for the upper leaves of the plant.

The actual sale prices of all sales, domestic and export, are then averaged, and the manufacturers pay the

difference between the average actual price and the guaranteed price. The Marketing Board then

distributes this payment equitably to its tobacco farmer members.

The make-up payments have been substantial, totalling more than $1 billion over the past 20 years. In

1998, these payments accounted for 21% of total crop value. But for the much smaller crop of 2007,

make-up payments accounted for 45% of total crop value.

A CHANGING BUSINESS ENVIRONMENT

Tobacco companies have taken tougher and tougher negotiating positions with tobacco farmers and have

succeeded in reducing the guaranteed price for tobacco leaf in recent years.

In 2006, Canada’s largest tobacco company, Imperial Tobacco, closed all of its manufacturing plants in

Canada and moved all of its manufacturing operations to Monterey, Mexico. However, it still purchases

most of its leaf supplies at auction in Canada, ships the tobacco to Mexico and then imports the finished

cigarettes and fine-cut tobacco back into Canada.

RECOMMENDATIONS: There should be continued strong and effective tobacco leaf supply management in Canada.

Regulatory controls and limits on licences to grow or handle leaf tobacco should be extended to cover

imported tobacco leaf as well as domestic tobacco leaf.

Any further payments made to tobacco farmers to assist their transition out of tobacco growing

should have the effect of bringing all tobacco growing in Canada to an end. Furthermore, any such

payments should not be at the expense of ordinary taxpayers, nor should they be offset against any

part of the recent $1.1 billion settlement between tobacco companies and governments for past

tobacco company wrongdoing or any future settlement. Rather, further payments should come from

new taxes or levies on tobacco companies or direct payments to farmers from these companies.


TOBACCO PRODUCTION AND CROP VALUE IN CANADA, 1998 TO 2007106

Qty 1998 1999 2000 2001 2002

Production

Total Crop Millions KG 68.3 64.6 48.3 53.1 49.0

Domestic Use Millions KG 42.4 41.8 33.9 33.9 29.4

Export Millions KG 25.9 22.7 14.3 19.2 19.7

Percent for Export % 37.9 35.2 29.7 36.2 40.1

Imported Unmanufactured Tobacco

Millions KG 15.5 3.3 7.0 4.9 5.0

Crop Value

Total crop value Millions $ 342.0 326.6 309.0 267.7 244.1

Received at auction Millions $ 268.7 245.0 229.9 210.2 195.8

Make-up payments Millions $ 73.3 81.6 79.1 57.5 48.3

Make up payment as percentage

%

21.4 25.0 25.6 21.5 19.8

Qty 2003 2004 2005 2006 2007

Production

Total Crop Millions KG 42.6 39.8 38.1 25.2 15.6

Domestic Use Millions KG 25.3 24.2 25.4 18.5 n/a

Export Millions KG 17.3 15.6 12.6 6.6 n/a

Percent for Export % 40.5 39.2 33.2 26.3 n/a

Imported Unmanufactured Tobacco

Millions KG 6.5 5.9 8.7 5.6 6.8

Crop Value

Total crop value Millions $ 195.7 170.7 156.8 132.0 89.8

Received at auction Millions $ 147.3 127.5 115.9 82.7 48.9

Make-up payments Millions $ 48.4 43.2 40.9 49.3 40.9

Make up payment as percentage

%

24.7 25.3 26.1 37.3 45.5

106 Physicians for a Smoke‐Free Canada. Recent Trends in Tobacco Agriculture in Canada. July 2008.

http://www.smoke‐free.ca/pdf_1/MF%20and%20MP%20Fact%20sheet%20‐long.pdf.


Article 18

THE ENVIRONMENT

CANADA’S TREATY COMMITMENTS In carrying out their obligations

under this Convention, the

Parties agree to have due

regard to the protection of the

environment and the health of

persons in relation to the

environment in respect of

tobacco cultivation and

manufacture within their

respective territories.

SINCE OUR LAST REPORT Edmonton Mayor Stephen Mandel has called for measures to

reduce cigarette litter.107

Cigarette butts and other tobacco related garbage were found

to be the most common litter item in cross-Canada clean up.108

The environmental impact of tobacco growing and manufacture in

Canada has not been an area of significant focus by tobacco control

agencies (governmental or non governmental).

Tobacco curing is no longer associated with deforestation in

Canada, as the curing methods involve the use of natural gas, not

the burning of wood. Greenhouse gas emissions are monitored for

tobacco manufacturing plants as they are for all industries through

the National Pollutant Release Inventory. Pesticides and other

pollutants used in the production of tobacco are monitored by

provincial and federal governments, but little is reported.

As tobacco growing is reduced in Canada, the environmental issues

associated with tobacco will increasingly be related to the use of

tobacco products, not the growing or curing of tobacco.

Several Canadian communities and organizations are working to

reduce the harm caused to wildlife and humans from tobacco litter.

Among these is the Vancouver Aquarium’s nation-wide Great

Canadian Shoreline Cleanup. Their most recent report cited

cigarette butts as the most frequently found type of litter on

Canada’s shorelines.109

107 Jennifer Yang. Mayor Breathing Fire over Smokers’ Litter. Edmonton Sun. September 18,

2008.

108 TD Great Canadian Shoreline Cleanup. Factsheet 2008.

109 Vancouver Aquarium (Candace Hodder) Presentation: Engaging Canadian Communities in Shoreline Stewardship. October 9‐11, 2007 http://www.blueflag.ca/bwt/resourses/presentations/Hodder.pdf.


MOST COMMON ITEMS FOUND ON CANADA’S SHORELINES110

Type of garbage Percentage of leading items

cigarettes/cigarette filters 39%

food wrappers/containers 15%

bags 11%

caps, lids 8%

beverage cans 5%

utensils 5%

beverage bottles (plastic) 5%

beverage bottles (glass) 4%

straws, stirrers 4%

tobacco packaging 2%

building materials 2%

buoys/floats 1%

Cigarettes litter Vancouver beaches111

RECOMMENDATIONS: Health Canada and Environment Canada should collaborate on

an environmental assessment of tobacco use in Canada.

Governments should investigate the merits of a social

marketing campaign aimed at changing the social acceptability

of littering with cigarette butts and packaging.

110 TD Great Canadian Shoreline Cleanup. Factsheet 2008.

111 Photocredit: Keira, Flickr. http://www.miss604.com/2008/07/the‐great‐canadian‐shoreline‐cleanup.html.

“Cigarette butts pose a

significant danger to wildlife,

yet for some reason many

Canadians don’t think of them

as litter.”

Eric Solomon,

Vancouver Aquarium.

Canadian Press, August 20,

2008


Article 19

TOBACCO INDUSTRY LIABILITY

CANADA’S TREATY COMMITMENTS Take legislative action, or

promote existing laws, to deal

with civil and criminal liability,

including compensation where

appropriate, for the purpose of

tobacco control; and

Cooperate with and assist

other FCTC parties in legal

proceedings relating to civil

and criminal liability.

SINCE OUR LAST REPORT: Federal and provincial governments reached a controversial

settlement with BAT and Philip Morris subsidiaries (Imperial

Tobacco Canada Ltd. and Rothmans, Benson & Hedges)

regarding their smuggling-related activities in the 1990s.

In virtually all ongoing damage recovery lawsuits against them,

tobacco companies have filed ‘third party’ claims against the

federal government, arguing that their actions were consistent

with, or at the request of, the federal government. British

Columbia courts have rejected these claims in both class action

and government cost recovery suits (the latter is under

appeal), but decisions regarding third party claims have not

been reached in the Quebec class action suits.

New Brunswick has filed a suit to recover health care costs

(March 2008).

A trial date for the British Columbia lawsuit is anticipated for

the fall of 2010.

The preliminary enquiry decision of an Ontario judge to dismiss

charges against six executives of JTI-Macdonald for tax fraud

was overturned. A trial date has not been set.

Criminal and civil actions in Canada have increased in recent years.

There have been three criminal inquiries against tobacco

companies, three government civil lawsuits and three certified class

action civil suits. Canada uses both the English common law and

French civil law systems and litigation against tobacco companies is

proceeding in both systems.

CRIMINAL PROCEEDINGS

In January 2002, the Royal Canadian Mounted Police (RCMP)

searched the premises of Rothmans, Benson & Hedges in

connection with the company’s smuggling activities in the 1990s. In

November 2004, RCMP agents searched the Montreal office of

Imperial Tobacco Canada. The RCMP affidavit used to obtain the

search warrant states that smuggling by Imperial Tobacco from


1991 to 1993 led to $607 million in unpaid taxes to the federal government. In July 2008, a plea bargain

was reached with both companies that simultaneously resolved both civil and criminal claims by the

federal government with the two companies. Each company pleaded guilty to a single count of “aiding” the

sale of smuggling cigarettes and agreed to pay criminal fines and “civil assessments” to federal and

provincial governments totaling $1.15 billion. There were no repercussions for the individuals involved,

and the terms of the settlement included only taxation related concessions (i.e. no health-related

measures).112

Criminal proceedings against a third company, JTI-Macdonald, are ongoing. In February 2003, the RCMP

laid charges of fraud against JTI-Macdonald, some related companies and eight former corporate

executives, claiming that Canada, Ontario and Quebec had been defrauded of $1.2 billion in tax revenue

between 1991 and 1996. One of the executives, Stan Smith, who was the company’s vice president of

sales during the period, pleaded guilty to charges of fraud and possession of proceeds of crime on January

5, 2006. He was sentenced to two years less a day of house arrest. In May 2007 the Ontario Court of

Justice ordered JTI-Macdonald and its former chief executive officer to stand trial, but dismissed charges

against six other executives. In February 2008, a review of the decision to dismiss these other charges

resulted in the matter being referred back to the preliminary inquiry judge for reconsideration.

In 2003, the federal government filed a civil suit against JTI-Macdonald to recover lost taxes, and the

Quebec government initiated reassessment proceedings against the company in 2004. JTI-Macdonald

successfully sought bankruptcy protection, and a stay of the proceedings against it for the recovery of

unpaid taxes. Federal and provincial claims against the company now total $10 billion.

HEALTH CARE COST RECOVERY SUITS

Six provinces have passed laws to allow them to pursue actions against tobacco companies to recover

health care costs incurred as a result of smoking-related illnesses, but only two have filed suit to date.

British Columbia first filed suit in 1998, and the trial is scheduled for the fall of 2010. New Brunswick filed

in March 2008.

CLASS ACTION SUITS

Three class action suits have been certified and are ongoing against tobacco companies: one in British

Columbia (regarding the sale of ‘light’ cigarettes) and two in Quebec, which have been consolidated (one

regarding addiction the other regarding lung diseases).

RECOMMENDATIONS: The federal government, and the four provinces that have not already done so, should adopt

legislation similar to that in place in British Columbia and should file health care recovery lawsuits

against the tobacco industry.

The Government of Canada should develop and implement a strategy to assist public interest

litigation efforts against tobacco companies.

Canada should work with other FCTC parties to ensure that access to documents, access to people

and access to assets is included in the mutual legal assistance they extend to each other.

Governments and courts should ensure that the resolution of tobacco litigation includes measures

intended to reduce tobacco use.

112 More information on this settlement is presented in the discussion on Article 15, Illicit Trade.


RESULTS OF CIVIL LITIGATION AGAINST TOBACCO COMPANIES

Jurisdiction Law Litigation Outcome

Federal U.S. 18 U.S.C. § 1961 Racketeer Influenced and Corrupt Organizations (RICO)

Recovery of taxes not paid; Filed 1999

Refused by courts* 2000

Ontario U.S. 18 U.S.C. § 1961 Racketeer Influenced and Corrupt Organizations (RICO)

Recovery of Medicare costs; Filed: 2000

Refused by courts* 2000

Quebec Quebec, Department of Revenue Act Recovery of taxes not paid; Filed 2004

Nova Scotia Nova Scotia Tobacco Damages and Health Care Costs Recovery Act, 2005

Newfoundland Newfoundland and Labrador, Tobacco Damages and Health Care Costs Recovery Act, 2001

British Columbia British Columbia Tobacco Damages and Health Care Costs Recovery Act, 1998 revised in 2000.

Recovery of health care costs;

(1) Filed 1998 (2) Filed 2001

(1) Dismissed 2000

Manitoba Manitoba Tobacco Damages and Health Care Costs Recovery Act, 2006

New Brunswick New Brunswick Tobacco Damages and Health Care Costs Recovery Act, 2006

Recovery of health care costs:

Filed 2008

Saskatchewan Saskatchewan Tobacco Damages and Health Care Costs Recovery Act, 2007

* case dismissed on a preliminary jurisdictional basis

Source: Non Smoker’s Rights, Tobacco-Related Litigation in Canada , 2008 http://www.nsra-adnf.ca/cms/file/pdf/Tobacco_Related_Litigation_in_Canada_2008.pdf.


CHRONOLOGY OF CANADIAN TOBACCO LITIGATION

Date Event

June 20, 1988

First injury related lawsuit filed against tobacco company in Canada. (Perron) (dismissed in 1990).

January 13, 1995

First class action suit against tobacco companies outside of the United States filed in Toronto. (Caputo, certification rejected in 2004).

July 28, 1997

Tobacco Damages Recovery Act adopted by BC Legislature with all-party support. (revised in 1998 and 2000).

November 12, 1998

British Columbia files a lawsuit against tobacco companies operating in Canada as well as their foreign owners. (This claim is dismissed by the court in 2000 on the grounds that facilitating Act was unconstitutional.)

December 21, 1999

The Government of Canada files a lawsuit in the United States Federal Court against RJR-Macdonald Inc., RJ Reynolds Tobacco Holdings Inc., several related companies, and the Canadian Tobacco Manufacturers Council related to the loss of tax revenues associated with smuggling. (Dismissed by the U.S. court on June 30, 2000 on jurisdictional grounds.)

March 2, 2000

Ontario files a medicare cost recovery lawsuit against the tobacco industry in U.S. federal court under the Racketeer-Influenced and Corrupt Organizations Act (RICO). (U.S. courts refuse to hear the case for jurisdictional reasons.)

January 24, 2001

B.C. government re-launches its lawsuit.

May 24, 2001

Newfoundland's Act to Provide for the Recovery of Tobacco Related Health Care Costs is passed.

January 17- 19 2002

RCMP searches the premises of Rothmans, Benson & Hedges in connection with cigarette smuggling in the 1990s, as part of an investigation.

Date Event

February 2003

The RCMP lays charges of fraud and against JTI Macdonald and 8 former corporate executives. Investigators claimed the companies defrauded Canada, Ontario and Quebec of $1.2 billion in tax revenue between 1991 and 1996.

May 8, 2003

The “Knight” case is filed in British Columbia against Imperial Tobacco for engaging in “deceptive trade practices” when it used the term ‘light’ on its Players Light cigarettes.

August 13, 2003

The Attorney General of Canada files a suit in Ontario against JTI-Macdonald for $1.5 billion to recover tax losses caused by what it called a “massive conspiracy” to smuggle cigarettes.

April 30, 2004:

In the Knight Case, Imperial Tobacco Canada files its Statement of Defense and also files a third party notice against the Attorney General of Canada. In this third party notice, the company argues that light cigarettes were manufactured to comply with federal requirements, and that the government should be required to pay any damages, should they be determined.

May 20, 2004

B.C. Court of Appeal reverses lower court order of June 2003 and unanimously (3:0) rules that the amended B.C. legislation is fully constitutional.

July 2004 The “Sparkes” suit is filed in Newfoundland against Imperial Tobacco, claiming that customers were deceived by the marketing of ‘light’ cigarettes. The case is very similar to the “Knight” case in British Columbia.

August 10, 2004

The Québec Revenue ministry requests and obtains a court order for JTI-Macdonald to pay nearly $1.4 billion immediately for unpaid taxes, penalties and interests. JTI-Macdonald subsequently filed for bankruptcy, and protection was extended. Other provinces file notices of their own potential claims in this matter of more than $9 billion.


Date Event

August 24, 2004

JTI-Macdonald files an application of “Companies’ Creditors Arrangement Act (CCAA)” to the Ontario Superior Court of Justice. Filing the CCAA makes it possible for JTI-Macdonald to continue normal business operations.

October 14, 2004

The federal government sides with tobacco companies in petitioning the court not to certify the Knight case.

October 25 - 29, 2004

Hearing on Class Action certification for the Knight case before B.C. Justice Satanove.

November 26 – 28, 2004

RCMP agents search the Montreal office of Imperial Tobacco Canada. The RCMP affidavit claims that smuggling led to $607 million in unpaid taxes to the federal government

December 2, 2004

B.C. Court of Appeal grants a stay of the B.C. litigation pending appeal to the Supreme Court.

February 8, 2005

B.C. Supreme Court Justice Satanove rules that the Knight class action can be certified. This is the first class action against a tobacco company to be certified in Canada.

February 21, 2005

Judge Pierre Jasmin of the Quebec Superior court authorizes both the Letourenau and Blais class actions.

February 2005

A third class action for deception arising from the sale of ‘light’ cigarettes is filed, this time in Quebec on behalf of representative claimant “Yves Gagnon” (rejected in 2006).

March 8, 2005

Justice Winkler of Ontario Superior Court denies Imperial Tobacco's request for costs to be awarded against class representatives in the Caputo case.

March 9, 2005

Ontario Superior Court Judge Cullity rejects Imperial Tobacco's request to stop the Ragoonanan trial.

May 30, 2005

Notices are issued to the public regarding eligibility to join the Quebec class actions, Blais and Letourneau.

Date Event

June 26, 2005

B.C. Supreme Court (Justice Holmes) rules that even though some of the defendents are located outside of Canada, they can be included in the lawsuit.

June 27, 2005

Federal and provincial governments add their claims to that of the Quebec government. Total claim exceeds $9 billion.

In addition to Quebec's $1.3-billion claim, the federal government is seeking $4.3 billion (increasing its claim from $1.5 billion); New Brunswick $1.5 billion; Nova Scotia $326 million; British Columbia $450 million; Manitoba $23 million; Ontario $1.5 billion; and Prince Edward Island $75 million.

September 29, 2005

Supreme Court of Canada upholds the validity of the Tobacco Damages and Health Care Costs Recovery Act.

December 1, 2005

Imperial Tobacco amends its third party claim in the Knight case.

October 13, 2005

Nova Scotia introduces a Tobacco Damages and Health Care Costs Recovery Act.

October 31, 2005

Ontario Superior Court Judge Cullity denies certification of Ragoonanan case as a class action.

December 8, 2005

Nova Scotia's Tobacco Damages and Health Care Costs Recovery Act is assented to.

January 20, 2006

Imperial Tobacco notifies the government of Canada that it is being named as a third party to the Sparkes suit.

May 5, 2006

Montreal Gazette reports that Stan Smith has been sentenced following a guilty plea for his conspiracy in smuggling cigarettes for JTI-Macdonald.

May 11, 2006

B.C. Court of Appeal upholds the certification of the Knight case.

June 13, 2006

Manitoba's Tobacco Damages and Health Care Costs Recovery Act is assented to.


Date Event

June 22, 2006

New Brunswick's Tobacco Damages and Health Care Costs Recovery Act is assented to.

June 27, 2006

Application is made to certify the Sparkes case as a class action.

September 15, 2006

B.C. Court of Appeal upholds Justice Homes ruling that 'ex-juris' defendants should be included in B.C.’s action.

December 11, 2006

A coalition of health groups "Campaign for Justice on Tobacco Fraud" calls on Ontario government to sue for health care cost recovery from tobacco companies. Premier Dalton McGuinty rejects call, saying "The other agenda is about punishing big tobacco. We have not embraced that agenda. That does not serve our purposes."

April 5, 2007

Supreme Court of Canada rejects appeal of B.C. Court of Appeal decision upholding B.C. legislation.

April 26, 2007

Saskatchewan adopts the Tobacco Damages and Health Care Costs Recovery Act.

May 30, 2007

Ontario Court orders JTI-Macdonald Corp. and its former president Edward Lang to stand trial on charges that they exported billions of tax-free Canadian cigarettes into the United States so they could be smuggled back into Canada through the Akwesasne Mohawk reserve near Cornwall and sold on the black market.

June 6, 2007

Imperial Tobacco files Third Party Notices to involve the government of Canada in the lawsuit brought by B.C. against it. JTI-Macdonald, Rothmans, Benson & Hedges do likewise.

July 3, 2007

The B.C. Supreme Court rejects the Third Party Notice issued by Imperial Tobacco to the Government of Canada in the Knight case. Imperial Tobacco appeals.

Date Event

February 29, 2008

JTI-Macdonald files "action in warranty" (similar to 3rd party) for Letourneau and Blais cases.

Imperial Tobacco files "action in warranty" (similar to 3rd party) for Letourneau and Blais cases.

Rothmans Benson & Hedges files "action in warranty" (similar to 3rd party).

March 13, 2008

New Brunswick files suit against tobacco companies operating in Canada.

April 10, 2008

B.C. Supreme Court dismisses third party claim against the government of Canada by tobacco companies sued by B.C. government.

July 31, 2008

Rothmans, Benson & Hedges and Imperial Tobacco Canada Ltd. both plead guilty to a single count of “aiding persons” to sell untaxed tobacco products. In addition to fines of $100 million and $200 million, respectively, they also agree to make payments based on a percentage of future revenues over the next 15 years of up to $400 million and $450 million.


Article 20

RESEARCH & SURVEILLANCE CANADA’S TREATY COMMITMENTS Develop and promote national

research, and coordinate

research programs at the

regional and international

levels, in the field of tobacco

control;

Initiate and cooperate in the

conduct of research and

scientific assessments; and

Promote and strengthen

training and support for all

those engaged in tobacco

control activities, including

research, implementation and

evaluation.

SINCE OUR LAST REPORT: A new monitoring tool is in development, the Canadian Health

Measures Survey. This monitoring tool will collect information

related to smoking and other health behaviours as well as

direct physical measurements such as blood pressure, height

and weight, blood and urine sampling and physical fitness

testing. 113 Also, through questionnaires, it will gather

information related to nutrition, smoking habits, alcohol use,

medical history, current health status, sexual behaviour,

lifestyle, physical fitness, as well as demographic and

socioeconomic variables.

SURVEILLANCE

Health Canada conducts regular surveillance of tobacco use in

Canada. The principal surveillance tool is the Canadian Tobacco Use

Monitoring Survey (CTUMS), which is conducted by telephone in

two waves each calendar year. The results are widely disseminated

and the data is made freely available to researchers.

Tobacco use is also included in other national surveys, including a

Youth Smoking Survey and the Canadian Community Health

Survey, which use household interviews. A new Canadian Health

Measures Survey will report on physical measurements of

Canadians, including measurements related to tobacco use.

Canada’s progress against tobacco use compares favourably

with Britain – but California has achieved lower rates.114

113 Statistics Canada. Canadian Health Measures Survey.

http://www.statcan.ca/english/concepts/hs/measures.htm.

114 ASH UK. Beyond Smoking Kills, 2008.


NATIONAL LEVEL RESEARCH

There are many agencies and individuals involved in research, surveillance and exchange of information

on tobacco control in Canada:

• Health Canada undertakes evaluative research for existing programs and policies and establishes the

research base for future policies and programs;

• The Canadian Tobacco Control Research Initiative (CTCRI) coordinates and sustains research that has

a direct impact on programs and policies aimed at reducing tobacco use and nicotine addiction. It

provides funding for a broad range of disciplines. The CTCRI’s strategic partners are the Canadian

Institutes of Health Research, the National Cancer Institute of Canada, the Canadian Cancer Society

and Health Canada. In addition to this, the CTCRI has a number of project partnerships in place

involving organizations such as The Lung Association, the Heart and Stroke Foundation, the Canadian

Centre for Substance Abuse, and others;

• The International Development Research Centre runs the Research for International Tobacco Control

(RITC) program. This program provides funding for global tobacco control and receives financial

support from Canadian governments and other governments and agencies.

There are many research centres in Canadian universities focusing on tobacco use and its consequences.

The provinces of Ontario and Quebec have established research units to monitor and support provincial

tobacco control initiatives. These are the Ontario Tobacco Research Unit and Quebec’s Institut national de

la santé publique.

Other research clusters focusing on tobacco control are found at the University of Waterloo, the University

of British Columbia and Université Laval. University-based researchers who focus on tobacco control are

found in other centres as well.

These research agencies and centres accept the importance of, and are actively engaged in, the

coordination of their research programs.

RECOMMENDATIONS: The Canadian Tobacco Control Research Initiative should continue to function as a separate research

stream and continue to be funded by governments and health agencies.

Canadian university-based researchers should continue to be supported by their institutions and

research funders in their further research efforts on tobacco use and tobacco control.

Canada should increase its financial support for international research on tobacco use and tobacco

control, through the Research for International Tobacco Control program of the International

Development Research Centre.


RESULTS FROM THE CANADIAN TOBACCO USE MONITORING SURVEY, 2002 TO 2007

Prevalence of Smoking (percentage of population)115 2002 2003 2004 2005 2006 2007 Men and Women (15+) 21 21 20 19 19 19 Men (15+) • Daily smokers 19 19 17 18 15 16 • Current smokers (daily or occasional) 23 23 22 22 20 20 Women (15+) • Daily smokers 16 14 13 12 13 14 • Current smokers (daily or occasional) 20 18 17 16 17 18 Boys (15 – 19) • Never smoked cigarettes 76 80 78 79 82 82 • Daily smokers 15 10 11 11 10 9 • Current smokers (daily or occasional) 21 17 19 18 16 15 Girls (15-19) • Never smoked cigarettes 72 77 78 79 84 83 • Daily smokers 18 13 11 11 8 9 • Current smokers (daily or occasional) 23 20 18 18 14 15 Percentage of children under 12 years of age regularly exposed to cigarette smoke at home

16 14 12 9 9 7

CANADIAN DEATHS FROM TOBACCO USE, 2002116

Deaths from cancer

Deaths from cardiovascular disease

Deaths from respiratory disease

Total deaths Estimated years of life lost (EYLL)

Age 0-15

Male 58 3,978 Female 33 2,459 Age 15-29 Male 5 25 2 40 2,459 Female 9 16 2 29 1,750 Age 30-44 Male 173 304 19 522 20,888 Female 156 121 9 293 13,163 Age 45-59 Male 1,975 1,462 149 3,708 96,954 Female 1,171 450 115 1,782 54,633 Age 60-69 Male 3,215 1,475 526 5,371 85,672 Female 1,404 545 400 2,412 47,543 Age 70-79 Male 4,144 1,344 1,567 7,260 69,335 Female 1,772 850 1,064 3,807 46,486 Age 80+ Male 2,349 1,763 2,525 6,807 37,438 Female 1,054 1,921 1,905 5,085 33,056 All ages Male 11,861 6,373 4,788 23,766 316,724 Female 5,566 3,903 3,495 13,441 199,090

Total 17,427 10,276 8,283 37,207 515,814

Percentage of Total 45% 27% 21%

115 Canadian Tobacco Use Monitoring Survey, 2007. www.gosmokefree.ca.

116 Baliunas et al. Smoking‐attributable mortality and expected years of life lost in Canada 2002: conclusions for prevention and policy. Chronic Diseases in Canada. Vol. 27, No. 4, 2007.

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Articles 21, 22 and 26

REPORTING AND COOPERATION

CANADA’S TREATY COMMITMENTS Submit reports to the

Conference of the Parties

(COP) of the FCTC on the

progress in implementing the

Treaty (Article 21);

Cooperate with other Parties in

providing expertise and in

scientific, legal and technical

matters to strengthen their

national tobacco control

strategies (Article 22); and

Cooperate with other Parties to

mobilize the necessary financial

resources to strengthen

tobacco control in all countries

and at the international level.

SINCE OUR LAST REPORT: Health Canada outlined adopted a Framework for Canada’s

International Tobacco Control Activities (FCITCA).

Health Canada significantly increased funding for global

tobacco control.

Canada failed to provide all of the information requested by the

World Health Organization’s Tobacco Free Initiative for the

preparation of their global MPOWER report.

Health Canada provided significant financial support for

activities run by the NGO-consortium the Global Forum for

Tobacco Control.

REPORTING

Canada submitted its first report to the COP on February 27, 2007.

The report goes well beyond the minimum amount of information

required by the international reporting template and usefully

summarizes Canada’s tobacco control activities. Health Canada

deserves praise for consulting with the NGO community in drafting

the report.

Canada was also a major participant in developing the reporting

template that other FCTC parties have used for their national

progress reports. This template should be strengthened by

requiring that shadow reports, such as this report, be included

alongside official government reports.

COOPERATION

The FCTC requires parties to engage in many forms of cooperative

activity to strengthen treaty implementation. Important among

these are cooperation in the financing of the treaty in the sharing of

expertise.

CANADA’S FCTC COOPERATION FRAMEWORK

Canada recently established a framework for FCTC cooperation. The

Framework for Canada’s International Tobacco Control Activities


DIAGRAMMATIC REPRESENTATION OF THE “FRAMEWORK FOR CANADA’S INTERNATIONAL TOBACCO CONTROL ACTIVITIES.” (ABRIDGED).

Abbreviations used: CIDA: Canadian International Development Agency; DFAIT: Department of Foreign Affairs and International Trade; IDRC/RITC: International Development Research Centre/Research on International Tobacco Control; LMIC: Low and Middle Income Countries.

International FCTC Obligations

CIDA DFAIT (Foreign Affairs)

Health CanadaPublic Health Agency of Canada

IDRC/RITC

Through activities such as:

‐Promoting and supporting policy‐relevant research in LMICs

‐Providing technical support to researchers in LMICs.

‐Furthering capacity‐building among researchers in LMICs

‐Encouraging dissemination of research results to policy makers and the public as well as the scientific community.

‐Strengthening the development of communities of practice

‐Fostering collaboration between Canadian researchers and those in less‐developed countries.

‐Encouraging collaboration on Canada’s research obligations under the FCTC between GoC international tobacco control partners

‐Promoting collaboration amongst the broader community to support tobacco control research in LMICs.


‐Engaging governmental counterparts in training and the sharing of expertise in areas such as tobacco legislation and regulation

‐Promoting cross‐ministry collaboration in other countries

‐Targeting specific countries through pilot projects

‐Organizing regional workshops on tobacco control

‐Engaging NGOs and contribute to development of NGO capacity in tobacco control in LMICs

‐Mobilizing NGOs besides those working in tobacco control

‐Encouraging more Canadian Ministers of Health (federal and provincial) to engage with their counterparts abroad on tobacco control


‐ Engaging governmental counterparts in training and the sharing of expertise in areas such as tobacco legislation and regulation

‐ Promoting cross‐ministry collaboration in other countries

‐ Targeting specific countries through pilot projects

‐ Organizing regional workshops on tobacco control

‐ Engaging NGOs and contribute to development of NGO capacity in tobacco control in LMICs

‐ Mobilizing NGOs besides those working in tobacco control

‐ Encouraging more Canadian Ministers of Health (federal and provincial) to engage with their counterparts abroad on tobacco control

FUNDING MECHANISMS

AND SOURCES

HEALTH CANADA

CIDA

IDRC/ RITC

ARTICLE 20 RESEARCH, SURVEILLANCE AND EXCHANGE OF INFORMATION

ARTICLE 22 COOPERATION IN SCIENTIFIC, TECHNICAL AND LEGAL FIELDS, AND PROVISION OF RELATED EXPERTISE

ARTICLE 26 FINANCIAL RESOURCES


CANADA HAS LARGEST TOBACCO CONTROL

WORKFORCE.

“Among the 174 countries that

submitted data on staffing, 129

(75%) have a national/federal

agency or technical unit with

responsibility for tobacco

control.No such agencies exist

in 45 countries (25%).

Of the countries that have

established a tobacco control

agency, 86 countries (67%)

provided staffing data showing

a total of about 604 full-time

equivalent staff. However, a

single country, Canada,

accounts for 179 of those

(30% of the global

aggregate total), and five

other countries account for

another 153. That leaves 272

full-time equivalents for the

remaining 80 reporting

countries, or about 3.4 full-

time equivalent staff per

country.”

WHO, MPOWER, 2008, p. 56

Government staff working fulltime on tobacco control (and population)117

Indonesia: 0 (237 million)

Thailand: 8 (65 million)

Singapore: 21 (4.6 million)

Malaysia: 4 (25 million)

Canada: 179 (33 million)

117 ASEAN Tobacco Control Report Card, SEATCA, July 2008.

(FCITCA) was adopted in 2007. It defines roles and responsibilities

for the major agencies involved, including:

International Development Research Centre/Research for

International Tobacco Control

“will serve as an excellent vehicle to coordinate Canada’s

international research obligations”.

Public Health Agency of Canada

“will continue to develop and implement strategies that recognize

the contribution of similar risk factors and health determinants to …

chronic diseases.”

Health Canada

“will encompass a sustained and comprehensive approach that

views tobacco control as an important public health issue, engages

all levels of government and civil society, and supports the

development and implementation of country-specific tobacco

control activities.”

Department of Foreign Affairs and International Trade

will “play a role in the provision of advice and encourage countries

that have not yet signed or ratified the FCTC to do so [and]

monitoring international developments regarding tobacco control

policies and programs.”

Canadian International Development Agency

“will continue scaling up efforts to strengthen health systems and

public health capacity, including in tobacco control in order to

ensure that initiatives to improve health outcomes are sustainable.”

FCITCA’s logic model is presented on the previous page.

PEOPLE POWER: CANADA’S UNIQUE POSITION

According to the World Health Organization review MPOWER, about

one-third of the global governmental tobacco control work force of

national governments is employed by the Government of Canada.

There are likely as many again working at other levels of

government in Canada. These Canadians have the benefit of years

of experience in implementing successful programs and policies.

They are well placed to provide hands-on technical assistance, in

the forms of meetings, exchanges, visits, presentations.

The engagement of these individuals in technical assistance is

hindered by government policies discouraging travel and exchange.

As a result, Canadian government expertise is difficult to access,

and Canadian government officials are unable to gain experience in

offering technical assistance. The potential for Canada and

Canadians to play a leading role in FCTC implementation is often

unrealized.


In the absence of such government-to-government assistance, private foundations (such as Gates and

Bloomberg) have become the key actors in FCTC implementation support. However well-meaning and

well-designed, these funds do not replace the obligation of Parties to the FCTC to mobilize funds and

provide assistance.

SUPPORT TO CIVIL SOCIETY ENGAGEMENT IN TOBACCO CONTROL The Canadian government has provided consistent and sustained support to civil society organizations

working in tobacco control, and has been steadfast in its support for civil society participation in the FCTC

process. During the FCTC negotiating process, Canada was among the first and often the only FCTC party

to provide financial support for civil society participation from developing countries and to ensure that

Canadian communities were represented.

As the FCTC developed, and efforts turned from negotiation to implementation, the Canadian government

increased its financial support for Canadian agencies working on FCTC implementation projects. In 2008-

2009, the amount provided for global tobacco control efforts exceeded $1 million. A key civil society

partner in this work is the Global Tobacco Control Forum, a consortium of Canadian health agencies

working on global tobacco control projects.

Health Canada supports the engagement of civil society groups in national and international tobacco

control efforts in a sustained, respectful, transparent and collaborative manner. This support, provided

over decades, has created a strong civil society voice and a robust tobacco control community which, in

turn, has contributed to the advancement of tobacco control measures in Canada.

RECOMMENDATIONS: Canada should support measures to provide standing to civil society “shadow reports” in the official

review of party reports to the COP.

The Canadian government should provide long-term and sustained funding for strengthening global

tobacco control. This funding should be made available for actions to implement the FCTC by the COP,

the Treaty secretariat, other Parties, non-Parties, government, civil society organizations and others.

Canada should support the development of a mechanism to facilitate the provision of appropriate

expertise (such as drafting legislation and regulations, and research) to countries needing assistance

in implementing the FCTC.

Additional funding should be provided to Health Canada’s International Health Grants Program to

ensure that the financing provided by Canada as part of its “voluntary assessment” to the FCTC does

not come at the cost of other international tobacco control efforts.

CIDA should allocate funding specifically for international tobacco control and make its developing

country partners aware that funding is available for relevant projects.

The government of Canada and the Global Tobacco Control Forum should continue to work together

to support global tobacco control efforts.


Update on Canada’s Response to

PREVIOUS RECOMMENDATIONS FROM JANUARY 2006 AND JUNE 2007

Article Recommendation Actions taken by government

5.1 FCTC focal point in Canada should include NGO representatives as full partners

No action.

5.2 Canada should support and accelerate the development of FCTC protocols, with emphasis on:

• Illicit trade (including surveillance systems) Steps have been taken.

• Cross border marketing (including internet advertising) We are not aware of any action in this regard.

• Banning internet and mail order sales We are not aware of any action in this regard.

• Banning cross border duty-free sales We are not aware of any action in this regard.

5.3 Additional funding should be provided to Health Canada International Health Grants Program to ensure that the voluntary assessments required for FCTC operations do not come at the cost of other international tobacco control efforts.

Unknown.

5.4 CIDA should allocate funding specifically for international tobacco control and make its developing country partners aware that funding is available for relevant projects.

No action.

6.1 The federal government should raise cigarette taxes by $10 per carton of 200 cigarettes (5 cents per cigarette), and encourage provinces where cigarette taxes remain low to also increase taxes, so that cigarettes are taxed at a higher rate across Canada.

No federal action. Provinces with lowest taxes (Ontario and Quebec) continue to resist tax increases.

6.2 Jurisdictions which continue to tax some tobacco products at lower rates (such as tobacco sticks and roll-your-own) should be encouraged to ensure that all tobacco products are uniformly taxed.

Federal government has eliminated lower tax rate for tobacco sticks.

8.1 The federal government should enact a regulation under the Indian Act to provide protection from exposure to second-hand smoke in workplaces and public places in First Nations. Until this regulation is enacted, the federal government should stop approving band bylaws that dismantle the protection provided under provincial smoke-free laws.

No action.

8.2 The federal government should adopt the promised revisions to the Non-Smokers’ Health Regulations, and/or amend the Canada Labour Code, to prohibit smoking in all federally-regulated indoor workplaces and public places.

Action taken.

8.3 Saskatchewan and Newfoundland and Labrador should protect all workers from exposure to second-hand smoke by prohibiting smoking in all workplaces.

No action.

8.4 Alberta, Prince Edward Island and the Yukon should enact provincial/territorial laws to prohibit smoking in public places and workplaces under their jurisdiction.

Alberta and Yukon have amended their laws.



8.5 Federal, provincial and territorial governments should follow the lead of Nova Scotia and Newfoundland and Labrador and enact legislation, within their respective jurisdictions, to ban smoking on outdoor patios.

Alberta and Yukon have banned smoking on outdoor patios, as has Vancouver and some other municipalities.

8.6 The federal government should promote and actively support measures at all levels of government to address the remaining gaps in the protection of Canadians from exposure to second-hand smoke.

Health Canada has provided research background on smoking in cars and home environments, and some modest communications activities.

9.1 Canada should encourage the COP to acknowledge that the machine tests of cigarette emissions, such as the ISO method and the Canadian ‘intense’ method, are not an appropriate mechanism for evaluating or comparing the harmfulness of cigarette brands.

The proceedings of the Working Group on Article 9 and 10 (for which Canada is a key facilitator) are not made public, and therefore the position taken by Canada is not known to us.

10.1 The federal government should continue to demand testing of cigarette emissions under various machine test standards. Several health organizations have called for a prohibition on the use of numeric values on cigarette packages, as these numbers may mislead smokers into believing that some brands of cigarettes are less harmful.

Health Canada is implementing this recommendation.

10.2 All information reported to Health Canada under the Tobacco Reporting Regulations should be made public, consistent with Article 10 of the FCTC.

No action has been taken.

11.1 The federal government should utilize surfaces within the package, including the foil and the cigarette itself, for additional disease prevention/health promotion messaging and require the use of full colour design and graphics on any messaging inside the package.

Although Health Canada is reviewing and revising its health warning and health information messages, no formal proposals have yet been made.

11.2 The federal government should improve the information to smokers with respect to where they can get cessation help, such as a free ‘quit line’ telephone number.

Health Canada is considering this option.

11.3 The federal government should accelerate development of a new phase of health warning messages, and have them in place by the end of 2008.

Health Canada has indicated further delays in the development of health warning messages. These are now not anticipated until late in 2010.

11.4 The federal government should increase the frequency of rotation of warnings without decreasing the number of warnings in rotation at any given time.


11.5 The federal government should increase the quality of the warnings through improved language, content, graphics and innovative messaging (ie. reminders of financial costs, skin damage, increased surgical risks, etc...)


11.6 The federal government should enact regulations to prohibit false and deceptive packaging, including, but not limited to, the terms already covered by the Competition Bureau agreement.

Health Canada has provided notice (Gazette Part I) that it will implement regulations similar to those covered by the Competition Bureau agreement, but has not responded to the feedback received during the public consultation period (which ended October 2007).



11.7 The federal government should increase the size of the warnings to reflect the nature and magnitude of the risks of tobacco while, simultaneously, giving more space to convey additional information, and to convey information more effectively.


11.8 The federal government should legislate plain or generic packaging, as recommended by the House of Commons Standing Committee on Health in the report Toward Zero Consumption: Generic Packaging of Tobacco Products.

Although Health Canada has not yet indicated an intention to move towards plain packaging, it is reviewing the evidence base to support this measure.

11.9 The federal government should standardize all cigarette packages to the most commonly sold Canadian package form (known as slide and shell). This would prevent the introduction of new packaging that has the potential to undermine the warning regulations now in effect, such as the new du Maurier hexagonal packages.

We are not aware of any actions towards this measure.

11.10 In the absence of standardized packaging, the federal government should eliminate the exemption for interior warnings that currently exists for “soft pack” packages.

We are not aware of any actions towards this measure.

12.1 The federal government should renew the FTCS for another five years and fully restore its funding, including the mass media component, to $110 million per year.

The FTCS was renewed in 2007 at an annual level of about half of that recommended, but the mass media component was not preserved. The elimination of funding for First Nations tobacco control programming has not been restored.

12.2 The federal government should ensure that Health Canada management does not reallocate FTCS funding for other uses.

There have been no commitments to end reallocation of FTCS funding to other uses.

13.1 Canada should implement a comprehensive ban on tobacco advertising.

The Prime Minister signaled changes to legislation governing tobacco advertising in an election speech on September 17, 2008.

13.2 As part of legislative reform, tobacco product displays and other forms of tobacco product promotion should be banned at point of sale across Canada, either through provincial/territorial law or by federal law.

All but one province (Newfoundland and Labrador) has implemented bans on point of sale displays.

14.1 Canadian governments should continue to work collaboratively in providing support for smokers who wish to quit, and should consider extending public support for quitting through: - Printing a toll-free quitline number on each cigarette package; - Increasing cessation support through primary health care (including physician services and public health clinics); and - Developing incentives and other motivations for smokers, employers and communities to increase successful quit rates.

Partially implemented.

15.1 The federal government should cut off the flow of raw materials to unlicensed manufacturers by prohibiting suppliers of raw tobacco, cigarette filters and other raw materials from selling these materials to anyone who cannot produce a valid manufacturing licence.

No action.

15.2 The federal government should introduce legislation that holds all tobacco manufacturers strictly liable if their products are seized on the smuggling market.

No action.

15.3 The federal government should persuade the U.S. federal government to shut down illegal manufacturing operations on the U.S. side of Akwesasne.

We are not aware of any action in this regard.



15.4 The Canadian government and provincial governments should establish a minimum bond of at least $5 million in order to obtain a federal or provincial tobacco manufacturing licence. Further complicating matters is the fact that, under the Canadian constitution, First Nations people do not have to pay provincial taxes if they buy tobacco products in First Nation territory. Some vendors in First Nations illegally sell these cheaper tax-exempt products to non-First Nations people who are not eligible to buy them. The ideal solution to this problem would be for First Nations to tax tobacco products in their territory, in the place of the provincial governments. This would raise needed revenues for First Nation governments and improve the health of First Nations people by discouraging smoking. Currently, very few First Nations collect tobacco taxes. In the absence of taxation by First Nations, better precautions are needed to prevent legitimate tax-free products from being sold illegally to non-First Nations people.

No action.

15.5 Provincial governments should set strict quotas and a refund requirement to limit the amount of provincial tax-exempt cigarettes available in First Nations.

No action.

15.6 First Nation vendors should be required to pay an amount equivalent to provincial tobacco taxes up front, when they purchase their inventory from manufacturers or wholesalers, and then get a rebate from their provincial government only if they can prove that the product was sold to an eligible First Nation person.

No action.

15.7 The federal government should introduce an effective tracking and tracing system to help law enforcement identify where legitimately manufactured products leave the legitimate supply chain and enter the contraband market.

No action, although the government has announced that a more sophisticated tax stamp with unique identifiers will be in place in early 2010.

15.8 The federal government should revoke licences of tobacco manufacturers acting unlawfully.

No action is known to have taken place.

15.9 The federal government should accelerate the ability of First Nations to impose their own tobacco taxes.

We are not aware of any actions in this regard.

16.1 Canada should ban cigarette vending machines. No action.

16.2 Canada should increase the federal minimum age for cigarette sales from 18 to 19.

No action.

16.3 Federal access laws should be strengthened by requiring that retailers display the number of a toll-free complaint line for the reporting of infractions. Canada has not yet banned the sale of candy cigarettes, although Nunavut territory has. The Nova Scotia legislature has passed a law banning candy cigarettes, but the government has not yet proclaimed it into force.

No action.

16.4 Governments should ensure that there is a ban on candy cigarettes throughout Canada.

No action.

17.1 Federal and provincial governments should not participate in, encourage or endorse the export of Canadian tobacco.

The export of Canadian tobacco has not been encouraged or endorsed by provincial or federal governments in recent years.

17.2 As part of a comprehensive long-term health-oriented tobacco control policy, and in keeping with Article 17 of the FCTC, tobacco growing in Canada should be phased out by government as soon as possible.

The federal government has established funding for an exit strategy for individual farmers, but has announced no plans to phase out the industry.



17.3 During the entire phase-out period, Canada should maintain government-supervised tobacco leaf supply management. Once tobacco growing has been completely phased out, make tobacco growing illegal with continuing government supervision to enforce the ban on tobacco growing.

The federal government has requested changes in the control of tobacco leaf, from a quota to a licensing system. It is not clear what measures will be in place to prevent illegal leaf sales.

19.1 The federal government, and the four provinces that have not already done so, should adopt legislation similar to that in place in British Columbia and should file health care recovery lawsuits against the tobacco industry.

New Brunswick has passed legislation and filed suit. No other jurisdictions have ‘followed suit.’

19.2 The government of Canada should develop and implement a strategy to assist public interest litigation efforts against tobacco companies.

No action.

19.3 Canada should work with other FCTC parties to ensure that access to documents, access to people and access to assets is included in the mutual legal assistance they extend to each other.

We are not aware of any actions in this regard

20.1 There should be continuing support and funding for the agencies and institutions currently involved in funding and directing tobacco control research in Canada.

Funding continues.

20.2 Canada should increase its support for international research, through RITC and other mechanisms.

Canada has increased its support for international tobacco control, including research

21.1 Canada should support measures to provide standing to civil society “shadow reports” in the official review of state reports to the COP.


22.1 The Canadian government should provide long-term and sustained funding for strengthening global tobacco control. This funding should be made available for actions to implement the FCTC by the COP, the Treaty Secretariat, other Parties, non-Parties, government, civil society organizations and others.

Canada has increased its support for international tobacco control on a year-by-year basis.

22.2 Canada should support the development of a mechanism to facilitate the provision of appropriate expertise (such as drafting legislation and regulations, and research) to countries needing assistance in implementing the FCTC.


THIS REPORT WAS PREPARED BY MEMBERS OF THE

GLOBAL TOBACCO CONTROL FORUM

Canadian Cancer Society Canadian Public Health Association

la Coalition québecoise pour le contrôle du tabac HealthBridge

Non‐Smokers’ Rights Association Ontario Tobacco Research Unit

Physicians for a Smoke‐Free Canada

the framework convention on tobacco control in … · 2007-02-27 · as this report as being...

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