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Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 49 - Evidence for the afternoon session


OTTAWA, Wednesday, December 9, 1998

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-42, to amend the Tobacco Act, met this day at 4:00 p.m. to give consideration to the bill.

Senator Lorna Milne (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I see a quorum. This meeting of the Legal and Constitutional Affairs Committee is now in session.

We have before us Bill C-42, to amend the Tobacco Act. Our first witnesses are from Health Canada. Michael O'Neill is the Senior Policy Analyst, Tobacco Policy and Co-ordination Unit, Policy and Consultation Branch. Mr. Chris McNaught, Senior Counsel, is beside him.

We do not have a full complement of senators because the Senate is still sitting. At this point, if you want to tell us something more about yourself or start with your presentation, Dr. O'Neill, please proceed.

[Translation]

Dr. Michael A. O'Neill, Senior Policy Analyst, Tobacco Policy and Coordination Unit, Health Policy and Information Directorate, Policy and Consultation Branch, Health Canada: Madam Chair, I thank you for your invitation to appear. As the Chair already mentioned, I am accompanied by Mr. Chris McNaught, Senior Counsel from the Department of Justice, who is assigned to the Department of Health. I will make the bulk of the presentation. Mr. McNaught is however prepared to assist me in answering the questions that may ensue.

As several witnesses have already done today, I would also like to mention that we received notice of these hearings very early this morning, and as a result, my comments will be very brief. Mr. McNaught and I prefer to focus on answering your questions.

We are here today to examine Bill C-42, an Act to amend the Tobacco Act. As you undoubtedly already know, the Tobacco Act is being amended to implement a prohibition after five years, or by the year 2003, on the display of tobacco brand elements in sponsorship promotions.

The bill was, however, prepared or drafted in such a way as to give groups that are currently benefitting from tobacco sponsorships more time to adjust to these new measures and this prohibition. The proposed amendment would take effect in three phases. The first phase, covering the period from October 1, 1998, to September 30, 2000, would extend the status quo. So all events that are currently benefitting from tobacco sponsorship -- such as the Grand Prix or the Montreal Just for Laughs Festival, to give you a couple of examples -- will benefit from the status quo. That means that these events will be able to continue receiving tobacco sponsorship, and tobacco sponsorship promotions would not be subject to restrictions. I reiterate, they will be free to carry out both off-site and on-site promotions of events, and in publications, et cetera.

The second phase, covering the period from October 1, 2000, to September 30, 2003, would grant a further extension of the status quo for on-site promotions of sponsored events and activities by permitting the display of tobacco-related brand elements on sponsorship promotions anywhere on the sites of events that existed prior to a date set out in the act.

This phase would also permit on-site sponsorship promotions to be displayed for the duration of the event or as otherwise specified by regulation. It would also bring into effect the Tobacco Act restrictions on off-site sponsorship promotion. As of October 1, 2000, off-site sponsorship promotions would be allowed to display tobacco brand elements only in the bottom 10 per cent of a promotion that would only be permitted in direct mailings to an identified adult, in publications with primarily adult readership, and lastly, in bars and taverns or other places where minors are not allowed by law.

Lastly, phase three of the amendment would take effect on October 1, 2003. After that date, the Tobacco Act will ban both on-site and off-site tobacco sponsorship promotions for all events. The display of tobacco-product-related brand elements on sponsorship promotions, whether on or off the site, would be prohibited.

The bill also contains grandfathering provisions. These three provisions, which were amended when the House of Commons standing committee examined the bill, are designed to limit grandfathering. We now refer to events that have already been in existence in Canada, and where the promotions or promotional material containing tobacco brand elements were visible or used between January 25, 1997, and April 25, 1998, which is over a 15-month period.

These two amendments, in addition to a third, which stipulates the dates by which the three phases I just described will come into force, were added, as I already said, during consideration by the standing committee in accordance with recommendations made by several NGOs, such as the Canadian Cancer Society. These measures are in addition to the grandfathering provisions, which consolidate the purpose and objectives of the Act and tighten up the strict use of certain tobacco brand elements.

Lastly, for events that are not grandfathered, all of these elements will be subject to deregulations and provisions of the Tobacco Act as amended October 25, 1997. All promotions will be limited to the 90-10 regime. This formula will allow the name, or a tobacco brand element, to be displayed only in the bottom 10 per cent of a poster or promotion for an event, and would be limited to the three criteria I mentioned earlier and that I will now repeat: indirect mailings to an identified adult; in publications with primarily adult readership; and lastly, in places where minors are not allowed.

Lastly, the proposed amendment in Bill C-42 would ban the use of names or tobacco brand elements in the name of a permanent facility, such as the du Maurier Theatre in Toronto and all other such facilities.

According to the timeframe set out in Bill C-42, as of the year 2003, permanent sporting or cultural facilities will no longer be permitted to display tobacco brand elements or tobacco manufacturers' names.

I think that essentially covers what I wanted to say this morning. My colleague and I are now prepared to entertain your questions.

[English]

Senator Kenny: I view this bill as a good news, bad news bill. The good news is that it terminates promotions altogether. The bad news is that you are taking a long time to get there.

I am interested in knowing if the groups receiving these extensions will find replacement sources of funding. Have you, in the course of your consultations, received any assurances or any indication from groups that they see the five years as an adequate period of time?

Dr. O'Neill: We have had discussions with a number of groups and event organizers who are members of an organization collectively called the Alliance for Sponsorship Freedom. They indicated that the five-year period described in the bill is more than adequate for them to find replacement sponsors. In fact, if you recall some of the debates that occurred around the original Tobacco Act, then called Bill C-71, most of those groups were saying they needed more time. This bill gives them that, but it also restricts them within the time-period given, so it is not a complete free-for-all for five years.

Senator Kenny: I was concerned and, at one point, interested in a piece of legislation that provided funds to some of these groups for a period of five years on a diminishing basis. At that time there was no interest in them getting the funds. Indeed, they led me to believe that they felt comfortable and believed they were fixed for the long haul. They seemed to think that one way or another, if they played for enough time, things would work out for them.

Dr. O'Neill: I am not sure I understand your question.

Senator Kenny: The strategy, as I understood it from the groups involved, is that if they played for enough time, then one government or another would come along and save their bacon.

Dr. O'Neill: I cannot comment on that except to say that the groups we have met with have indicated that they are working with the department to meet the five-year deadline and the restrictions that will come during the second phase. We have had discussions with them about how that would work in practical terms. The officers from the Office of Tobacco Control, which is responsible for enforcing the Tobacco Act, joined Chris and myself in places like Toronto to meet with the groups based there. We have also had walks around their sites and spoken about what the posturing would be like after these phases come in. The overall indication is that they can work with this. That is the indication we get from them. I cannot say any more than that really.

Senator Kenny: Have you had any discussions with them concerning their contingency plans if they have difficulty meeting the deadline, or if they have problems complying with the requirements? Has anyone come to you asking how they can address issues when they have problems while the situation is unfolding? Have any of them come to you and asked whether there are provisions within the act, as it is written, for any ministerial or departmental discretion? Is there any way for someone to move beyond the deadlines that we see in the act before us?

Dr. O'Neill: I understand that in the law, as it is written, there is no such possibility.

Senator Kenny: Would that also be your view as a lawyer, Mr. McNaught? Is it impossible for anyone to move beyond the deadlines that we see currently written in the legislation?

Mr. Chris McNaught, Senior Counsel (Department of Justice), Health Canada: I would not be as old as I look if I did not realize there is always some grey area in any initiative, senator, and it strikes me that this particular bill has not yet approached a stage where it will come into force. Nevertheless, the spirit of the provisions, as originally proposed by the minister responsible, are in effect. He made that announcement, so from my way of thinking about it, there is some flexibility in the administration of the matters at issue here. The act, as you know, provides fixed dates. The substance of most of the amendments is to clarify the dates in which the phases will come into effect, as well as dealing with technicalities rather than administrative flexibility or ministerial prerogative. For example, I would think that funding, which is not my bailiwick, would be outside of the act per se.

Senator Kenny: Could you elaborate, for the benefit of the committee, on the grey areas you see and on the flexibility and ministerial prerogatives you notice that might allow for longer periods of time?

Mr. McNaught: I believe that if I attempted to answer your question in good faith, I would be a better political candidate than I am, and of course I am not. I can only adhere to what is before this committee, look at the sections and say that they prescribe certain dates. I suppose the substantive act itself, the Tobacco Act, contains certain aspects, such as regulations that are not enforced. Administrative de facto arrangements have been made from time to time to facilitate the general spirit of the act being enforced, which might not always be by the letter. There is always that possibility with any piece of legislation, but I could not presume to say what parts in particular, if any, of this act are susceptible to being bent or taken off track.

The Chairman: Senator Kenny, I know you have more questions. You have asked four now. Perhaps I can put you on a second round; unless you wish to follow on with this line of reasoning?

Senator Kenny: I only wish to clarify ministerial discretion or the grey areas that Mr. McNaught talked about. Have the witnesses had discussions about whether there are areas that provide for flexibility in the act or not? When the witness mentioned grey areas, I wished to find out what they were.

Senator Lynch-Staunton: There is provision in the act allowing the Governor in Council to make regulations regarding these facts. I believe that flexibility or ministerial discretion has been built in, in order to be a little more generous than the intent of the bill before us. Could you explain what the Governor in Council being able to make regulations is all about?

Mr. McNaught: Do you mean in terms of this particular bill or the act generally? For, as you will no doubt have noticed, the regulatory-making powers of the minister with respect to this area will lapse in the year 2003 and, in effect, will be repealed.

I might be detracting from what the minister may decide to say or not during his appearance later today with respect to how he views the bill. I am sure, consistent with his public statements to date, that he would see this bill as a very transparent piece of legislation. It sets out his proposed policy and the provisions to implement it.

Senator Lynch-Staunton: Is there provision here for the Governor in Council to extend the 2003 date, for whatever reason?

Mr. McNaught: There is no provision.

Senator Lynch-Staunton: I want to know whether the Governor in Council, through regulation, can do that. We have only the amendments to 71 and I want to know what is the authority of the Governor in Council. What regulations can he make that may lead to the deadlines we are talking about -- the two years and additional three years -- being amended in favour of one or other of the parties who may feel they are being hit unfairly by these provisions.

Mr. McNaught: I will explain my understanding. Do not take it as a definitive legal opinion because I cannot offer one.

Senator Lynch-Staunton: Without meaning to be rude, I thought you were here to explain the legal implications.

Mr. McNaught: I am here to assist the representative from Health Canada.

Senator Lynch-Staunton: I thought you were here to assist us. I insist on knowing what the significance and importance may be of the right of the Governor in Council to make regulations. Can he make regulations to either extend or otherwise amend the five-year period?

Mr. McNaught: I do not believe so.

Senator Lynch-Staunton: I am sorry, but that is not enough. Either he can or he cannot amend the time limits.

Mr. McNaught: I understand that the committee has legal counsel.

The Chairman: If the gentleman cannot answer, then he cannot answer.

Senator Kenny: If other committee members are concerned about this, the Senate does have access to legal counsel. Is it possible for us to hear from legal counsel on the subject? I was also under the assumption that we would get answers from a legal perspective from this gentleman. If that is not possible, it certainly would not be unprecedented for us to have our own legal counsel give us views on whether or not the bill is, as Senator Joyal said, "tight or not."

The Chairman: That is a fair question and we will see what we can do.

Senator Bryden: As I read the amendment, the time limits are very specific. The dates are very specific. I would offer an observation from what I know about the regulatory powers of the Governor in Council under a piece of legislation. They can make regulations, but they cannot make any regulations that are inconsistent with the provisions of the act. It would be my view that regulations may be made but the dates and time limits that are specified in the act itself could not be varied or extended.

Senator Kenny: This is what I was hoping would be the case, Senator Bryden. I wished to hear it from the witness.

Mr. McNaught: I agree with that opinion. That is certainly my personal understanding of the law with respect to the regulatory powers. The Governor in Council cannot alter the substantive provisions in the act. As a terminus, it has already been mentioned that the regulatory power is repealed automatically on October 1, 2003.

Senator Lynch-Staunton: I have a note from a researcher that says it should also be noted that under certain limited circumstances thedeadline of October 1, 2003, to cease advertising may be extended. Someone who has looked at this bill has come to this conclusion. It is important that those who are promoting this bill should confirm the possibility, or not, for extending the time references. If it is fact, then we are not talking about the bill as it has been explained to us.

The Chairman: If I may interject here, I believe that the Senate legal counsel is really not at our disposal, and I am open for correction on this, to reflect on government bills. The proper person to ask would be the minister. We should ask him to bring his legal counsel with him when he comes.

Senator Kenny: With your permission, since the minister will not be coming for some time, could we send notice to him and ask if he would bring counsel?

The Chairman: We can certainly do that.

Mr. McNaught: With the greatest of respect, Madam Chair, I have given the answers. The Honourable Senator Lynch-Staunton has raised, for the first time to our knowledge, and I speak on behalf of the client as well, an issue of extension or abrogation, which appears to be in statutory concrete. It had not been brought to our attention to this point. We will take a look at it again.

The Chairman: And I am sure you will come up with an answer for us.

Senator Fraser: This is a supplementary. I do not know to which clause you are referring when you say the Governor in Council may make regulations to extend. The only thing I see is in subsection 66(1) where it talks about the Governor in Council having an option to fix deadlines earlier than October 1, 1998. Is there another clause?

The Chairman: I believe it refers to Section 33 in the original Tobacco Act.

Senator Kenny: I might add that Senator Lynch-Staunton raised the specific clause reference. My question was an open-ended one. Without any reference, can you tell me where this bill could be altered?

Senator Lynch-Staunton: I will go on to another topic then. The purpose of all this, as we found during the long and lengthy debate on Bill C-71, is to try and discourage smoking, particularly among the young. Do you have any figures, as up to date as possible, to tell us what the experience of smoking among the young in Canada has been over the last five years?

Can you tie in the experience in smoking, whatever it may have been, with Bill C-71 and its predecessor, I think it was Bill C-51, the one that was struck down by the Supreme Court?

Dr. O'Neill: Let me deal first with the issue of consumption. We have figures available at Health Canada, which show the following prevalent statistics.

Approximately 29 per cent of 15 to 19 year olds and 14 per cent of 10 to 14 year olds are currently smokers.

Since 1991, based on the national population health survey, we have a 25 per cent increase in the number of teen smokers between the ages of 15 and 19. Approximately 85 per cent of smokers began smoking before they were the age of 16.

Senator Lynch-Staunton: In other words, there has been an increase in youth smoking in the last few years, despite all the attempts to limit advertising and sponsorships; and to ban sales to kids in the retail stores, et cetera.

Senator Kenny: I had heard 85 per cent start smoking before the age of 19. Did you say 85 per cent start before the age of 16?

Dr. O'Neill: That is the figure I have before me, yes.

Senator Lynch-Staunton: I am yet to be convinced that there is a tie-in between sponsorships and youth smoking, particularly a direct one. When Bill S-13 was being debated, there was a reference made to limited advertising in California that was specifically aimed at deterring young people from smoking. The fact is that the latest statistics from California indicate that youth smoking has increased. Do your surveys include what is going on outside this country?

I have heard of reports that highlight what you are describing as the situation in California. I am not really the authority on this issue at Health Canada. The answer should come from the Health Promotions and Programs branch. I am superficially aware of what you are saying and believe that to be correct, but that is not my area of expertise.

Senator Lynch-Staunton: Can you try and convince us that passing such a bill, as we passed bill Bill C-71 and as we passed Jake Epp's bill, can lead to a decrease in smoking? What is the empirical evidence? All that we have seen so far leads to the conclusion that no matter what you try, kids will smoke anyway?

Dr. O'Neill: It is important to remember that neither Bill C-42 nor the Tobacco Act, formerly Bill C-71, will solve the youth smoking problem. It is a multi-faceted problem, that involves a number of elements; parental influence, peer influence, socio-economic status, as well as sponsorship, advertising and promotion of tobacco products. I do not believe that anyone would be foolish enough -- certainly I would not -- to say that this is the cause and we must stop it. It is a mix of many influences at play and I am sure some of the other witnesses will agree with that. That is why Health Canada has used a comprehensive approach to the problem of smoking. We are doing it legislatively, as in the bill that is before you today. We are doing it through public education programs, as done by my colleagues in the Health Programs and Promotions branch. We are doing it through regulations and enforcement, which is what the Office of Tobacco Control does -- sales to minors, age checks and those kinds of things. We are doing it through a number of means that try to address the problem of youth smoking from many sides. There are many sides to the problem. This is but one element in a comprehensive approach.

Senator Lynch-Staunton: None seems to be working. Surely there is something beyond all these attempts that is missing.

Dr. O'Neill: Senator, jurisdictions around the world are all using a comprehensive mix of policies. If Canada were the only one, I might agree with you, but every country in the world that I have researched and looked into -- the United States, Britain, France, Australia and New Zealand -- have used a mix of these elements.

Senator Lynch-Staunton: Their experience is the same as ours. There is no significant decline in youth smoking in any of those countries, rather, the opposite is true. Can you convince any of us that Jacques Villeneuve wearing the Rothman's logo on his suit will incite anyone to smoke or take up smoking? We are talking about banning the name of a brand on the assumption that it will discourage smoking.

Dr. O'Neill: Please take a step back and forget about Jacques Villeneuve or Greg Moore, to represent both sides of the country. It is important to move away from that. It is not just about a tennis tournament or car race or certain individuals. Again, other influences come into place. If your parents smoke, there is a better chance that you will smoke. If your friends smoke, there is also a better chance that you will smoke. There are a number of other elements as well. I am sure that some of the other witnesses will agree on that. We are saying that this legislation is addressing one of these elements. To answer your question, yes, we do believe that there is a link between associating a sporting activity, whatever it may be -- skiing, motor racing or even some cultural events -- with all its components of health, glamour, excitement, sexiness and youth, with smoking. When you are an impressionable 14 year old, and some of the other factors are present in your life, there is a higher chance that you will smoke than if the promotional aspect were not there.

Senator Lynch-Staunton: Do you have surveys or statistics to show that a youngster of 12 or 14 years, who is exposed to a du Maurier concert or a Rothman's race or Craven `A' something will be incited to start smoking?

Dr. O'Neill: You are focusing on the Craven `A' this or the du Maurier that. This is but one element of Health Canada's comprehensive strategy. You must remember that this strategy is the amendment of the Tobacco Act.

Senator Lynch-Staunton: The other strategies are not being challenged in court, and this is. I have made my point.

[Translation]

Senator Joyal: I would like to go back to clauses 1 and 2 of the bill to make sure that I have understood how they apply, and I am going to use a specific example to make sure that the scope of the bill is clear in my mind. If I have understood your reading of these two clauses, displaying the name of a tobacco manufacturer on a permanent facility such as a museum, which is not a temporary activity, would be prohibited. This would apply to a facility such as the O'Keefe Centre in Toronto, if I can draw a parallel. It is a permanent theatre, and if I understand your interpretation of the act, and I will go back to using my example of a museum, a museum would be prohibited from receiving money from a tobacco company and naming a wing after it, for example the Players Wing or the du Maurier Wing or the Rothmans Wing, or what have you, that would be built or made available thanks to money from the tobacco company. Have I understood the first element of the bill?

Dr. O'Neill: Yes, you are absolutely right. Naming a cultural or health-based facility after a tobacco company would be prohibited. However, I would like to add that receiving money from tobacco companies is not prohibited. If du Maurier wants to donate money to help develop a Montreal museum, that is allowed. Promoting the sponsorship however is prohibited. So du Maurier can give a museum money, but the museum cannot name a wing in its museum the du Maurier Wing. As of October 1, 2003, the date stipulated in the act, that would be prohibited.

Senator Joyal: So the du Maurier Wing cannot exist. I am going to go a step further. Let us go into the museum. Can the du Maurier Room exist?

Dr. O'Neill: No.

Senator Joyal: If we solicit money from du Maurier to buy a painting or funds from other private corporate sponsors, could the name du Maurier appear under the painting to indicate that du Maurier enabled the museum to acquire a painting?

Dr. O'Neill: Our interpretation would be that if you were talking about promotional groups and if du Maurier, for example, decided to send promotional material that would say: Come and see the du Maurier painting at the Montreal Musée des Beaux-Arts, unfortunately, that would be prohibited. However, as a corporate entity, nothing precludes du Maurier from giving money and making donations. Promotion is what is at issue here, the association of tobacco with sport or culture is what we want to regulate. To go back to what you said about the painting, it is not really a permanent facility within the meaning of the act. We are talking about a concert hall, a building, or a wing. The painting would be in a bit of a grey area, which would require an interpretation of the act.

Senator Joyal: I want to continue with my example. The museum holds an annual fundraising campaign, because it has a foundation, and it calls upon a broad range of contributors, both private and corporate. In general, these are not young people; they are working adults or corporations, and we regularly receive newsletters containing names of donors. Would it be possible for a tobacco company to participate in this fundraising campaign and have its name appear in the newsletter that lists the various donors?

Dr. O'Neill: Once again, since we are talking about promotion, we believe that there would not be a problem with the name Du Maurier being associated with a contribution. Let us say we have a list that reads as follows: Thank you to our private and public donors, we do not have a problem with that. The problem would arise if du Maurier or the museum in question were to advertise by saying, "Come and see the du Maurier exhibit"; that would be prohibited. We are talking about promotion. A donation from a company is not prohibited at all. I would also like to point out, because I think this is an important aspect, that in this respect, our legislation is consistent with the Quebec legislation. That means that Quebec legislation allows contributions but not promotion.

Senator Joyal: So if I understand correctly, contributions would not be allowed for permanent facilities, in other words, for the bricks and mortar, but it would be possible for a cultural institution to receive money from a tobacco company to acquire a movable asset that, by definition, is not permanent and can be moved within the facility and be put either in storage or on the wall. When the object is presented in public, the facility could display beneath the name of the object or the work in question the name of the donors who made the acquisition possible for the museum.

Dr. O'Neill: I would just like to back up a little bit again. It is important to point this out. You mention a contribution; contributions are not prohibited. Sponsorship is not prohibited in this bill. What is prohibited is promoting sponsorship. In other words, the bricks and mortar. A tobacco company can donate money for any mortar or any brick or any facility. What is prohibited would be associating the name of a tobacco company with the brick or mortar.

Senator Joyal: I understand. What I am trying to ask is the scope of the Act as regards the presence of the name of a tobacco company at non-permanent cultural events, on the same basis as that of other donors. When you go to a museum, the paintings are acquired thanks to funds, and those funds often come from contributions or private donations, and generally speaking their names are printed on a small plaque, sometimes in order of importance or in alphabetical order, out of respect for the donors. I am trying to ascertain whether I could still go into a museum and see a painting that was acquired thanks to funds from Esso Imperial, Petro-Canada, du Maurier, Exxon or Texaco, it does not matter. I am trying to understand the scope of the bill's application in cases like that.

Dr. O'Neill: I will let Mr. McNaught answer your question.

[English]

Mr. McNaught: Senator, if I understand you correctly, you raise a very interesting issue. It is an issue that was fully discussed back at the earlier stages of the Tobacco Act, (Bill C-71). It is very useful to take a look at section 18, which provides certain fair comment, certain degrees and limitations of reasonableness, on the expression of comments or theatrical performances in relation to the use of tobacco logos, for example.

Jacques Villeneuve or Greg Moore will still be able to get up on the winner's podium and thank his mother, his mechanic, God and his sponsor. He could do so without contravening the act, given the latitude of the free speech provisions in the act.

If a painting in a museum or an art gallery had a gold plaque on the bottom saying that the purchase of that painting was made possible by a grant from Mobil Oil, I do not see why that would be a contravention under the act. That is one of the extents or the limits at which the legislation stops because it is not a tobacco promotion, it is simply a fact. The painting was acquired with funds from Mobil Oil. It could just as well have said, "Senator Joyal donated funds for the purchase." It has the same impact. In other words, it does not contravene the act.

Senator Joyal: My second set of questions concerns the constitutionality of those provisions. My brother, who is a lawyer, has been working extensively in defending Bill C-71. We have discussed this matter quite extensively at home. Each time that we have to deal with that issue, I feel some uneasiness at the point whereby we must balance two sets of the rights of Canadians to be protected.

At the same that we want to take various measures to protect their safety, we wish to protect their health against any hazardous materials. That is why we have legislation and regulations regarding drugs and medicines. I am also concerned that we protect the rights of Canadians in terms of freedom of speech, especially coming from a province where we have Bill 101, which is at the core of the use of another language. Are you satisfied that what you are requesting from us, especially in sections 24 and 25, has a reasonable chance to stand the test of the Supreme Court? We were not that successful in the first round.

Mr. McNaught: Yes, there is a short answer, which is not always expected from a lawyer. Please, do not view me as trying to be circumlocutious or legally cute when I said that the mere fact that this bill is before you reflects the legal advice that the minister has received. That advice was that the bill, as constituted, stands a good chance of being sustainable in the face of an inevitable legal challenge. In fact, the tobacco industry has already served notice that it would amend its pleadings in a current challenge of the act to reflect whatever comes out of the legislative process with respect to this bill.

Senator Joyal: Could you say on which grounds?

The Chairman: I will point out that we do have other witnesses lined up. The next panel was due at 4:30 but we started late. Rather than keep people sitting here for a long time, perhaps we could shorten the questions.

Senator Joyal: Mr. McNaught, could you elaborate on the legal reasoning of why you think it is a plain "yes" to your statement?

Mr. McNaught: One of the time-worn principles that I must be governed by is that this matter is in litigation at the moment. It would be highly improper of me to comment on what the government feels are the strengths or weaknesses in terms of Charter viability on a matter that is before the courts. They now are in active process on this very issue. I do not wish to be unhelpful to the committee, but I believe this in good faith.

However, I will say on behalf of the client, and the client can advise accordingly, that many factors that were present, even at the date of the act coming into force in April 1997, have changed globally and domestically as you have already alluded to, senator.

There is a new act in Quebec and there is global sea change, specifically in terms of the sponsorship provisions of this bill. The European Union and United States have taken certain steps, as have South Africa, New Zealand and Australia. Many of these factors have been considered by the client in developing this bill. That is all I would say in terms of how strong this bill would be in the face of any court challenge.

Senator Moore: As a follow-up to Senator Joyal's question, I understand that it is legal for a company to have its name mentioned under the acquisition of a work of art or some such thing. In that instance, the standard of the expectation is that the word would be written in regular Gothic letters, as opposed to a stylized trademark use of the name of the product?

Mr. McNaught: At this point, there is no particular regulation that would govern the font or the style.

Senator Moore: That is important here, though.

Mr. McNaught: Consultations in that regard are going on as we speak.

Senator Moore: We are discussing being able to use the name of the product in association with a donation of art or a donation to a building. The name might be on the building in black and white Gothic without being coloured and stylized as the product name would be on its own labelling.

I have difficulty trying to sort out why one is permitted and the other is not. They are both done in the spirit of donations for community good. Can you help me with that?

Mr. McNaught: They may be in the spirit of donations for the community good, but it depends on whether it is a tobacco promotion or not.

Senator Moore: Suppose that a tobacco company puts out $50,000 to buy a painting to hang in the local gallery here and, at the same time, wants to pay for the room for ongoing exhibits. You say they cannot do the latter. They cannot pay for it and have their name on that little gold plaque that you were talking about. I am not referring to a stylized or coloured name with a trademark. They just cannot have that simple plaque?

Mr. McNaught: They cannot. My colleague certainly deals with this on a daily basis, so he would be a better respondent.

Dr. O'Neill: The Office of Tobacco Control, which is responsible for drafting regulations to administer the Tobacco Act, will be issuing in the new year an information letter, which is a consultation document prepared by Health Canada. That consultation letter will deal with issues regarding promotion as described in the Tobacco Act. At that point, those regulations will go through the usual regulatory process involving consultations, and publication in the Canada Gazette, Parts I and II. There will be answers to your questions in terms of the specific application of the act, which will be described in regulations at that time. I cannot say more than that.

Senator Moore: I am playing the devil's advocate here. I am trying to sort out what is a promotion and what is not. It is a nondescript use of a product name for buying a painting or paying for the room in which the art is exhibited. All can be said to be promotions and or to be simple donations to help pay for the artwork and for the facility. What is the distinction there?

Dr. O'Neill: I must remind you that this is a different part of the department. Four parts of the Health Canada department deal with tobacco. The Office of Tobacco Control is part of the Health Protection Branch. They have been given the responsibility for preparing regulations.

We recently travelled to Toronto and met with vendor organizers. Officials of the Office of Tobacco Control and other officials at Health Canada and some colleagues from other departments, such as Heritage Canada, are always disposed to travel or to answer questions raised by circumstances such as those you are describing. We will be practical about the application of the act. We are concerned about the type of tobacco promotion that leads to its association with cultural or sporting activity; the glamour, the fun, the health.

Senator Moore: I understand that part. I am not putting that forth as an example here.

Dr. O'Neill: Your example is well taken. I am saying that the department is very well disposed to discuss this with the Office of Tobacco Control officials, as well as myself and others. We are disposed to address those issues when they come up. In fact, in terms of the global approach and what is affected by this bill, a little plaque with an acknowledgement to a tobacco company for donating a painting is, of course, a concern. In a sense, though, it pales in significance with the du Maurier tennis tournament or with Jacques Villeneuve emblazoned with cigarette logos. We are talking about questions of degree here.

Senator Moore: I do not know that we are. I do not accept that. You may be talking that way but I am not.

[Translation]

Senator Nolin: Dr. O'Neill, section 24, which is to come into force in 2003, directly or indirectly prohibits sponsorship. Is that not correct?

Dr. O'Neill: Yes, it does.

Senator Nolin: You cannot prohibit something outright, and then talk about degrees of prohibition. I respectfully submit that the situation described by Senator Joyal as an example would be prohibited as of October 2003. Even if your regulations stipulate otherwise, they will have no power to lift the prohibition. In Quebec -- as you said yourself -- the government included a second paragraph in their legislation. Their first paragraph reads much like yours. It states that the purpose of the first paragraph is not to prevent donations from the tobacco industry, insofar as such donations are not associated with sponsorship. The fact that a donor may communicate information on the nature of the donation, or on the name of the donor, in any manner other than through advertising or a commercial message, does not in itself constitute sponsorship within the meaning of the paragraph.

That is clear. It is in the act, Dr. O'Neill, not in the regulations.

Dr. O'Neill: I accept your comment, Senator Nolin. Let me repeat what I said in case I did not express myself clearly. As in the Quebec statute you have just mentioned, there is nothing in the bill as such that prevents an organization from making a culture- sports- or health-related donation.

Senator Nolin: I do not contest that. The donor allows the recipient to display its name: does that or does that not violate some provision in the act? As the act stands, it does. I am sure you would rather it did not. But if that is really what you want, we will have to amend the legislation, because you can certainly not make that change through the regulations.

Dr. O'Neill: We believe that the exemption you mentioned would be dealt with under section 18 of the Tobacco Act.

Senator Nolin: Right. I have got section 18. I will let the others get their questions in, then I will come back to it.

Senator Lavoie-Roux: Thank you for your presentation. I am confused by all tobacco legislation. The first Tobacco Act was past in 1988, after a long debate during which everyone bemoaned the fact that our young people would get black lungs and die of cancer, not to mention what would happen to adults. I do not want to get on that track.

Now, two years later, we are back here, wondering what we can do not necessarily to improve things but to make it more difficult for the tobacco industry to sponsor events. I find this very confusing.

Yesterday, we heard a lot of statistics during debate in the Senate. I assure you that the figures were not very good. They were catastrophic, in fact. I would like to thank my lawyer colleagues who can show you the contradictions. Earlier on, you were saying that advertising would be restricted, appearing only in magazines read by adults. That is a very naive statement. You know that when magazines are left lying around in the house, children will look at them. In any case, they do not just get information from looking at cigarette adds. They get it from a vast number of sources, from all the little magazines and pamphlets that come into the house. So if you think you can prevent young people from seeing cigarette ads because they will be appearing only in with adult readerships magazines, think again. You will have a real problem identifying who the real adults are.

We do not seem to be taking really appropriate measures to influence young people, in the area of education, for example. We are focussing all our efforts on discussing whether it will take two, three or four years to deal with the impact of advertising. I do not think we are tackling the real problem. It is as if we had just given up. Perhaps I should be putting these questions to the Minister of Health, who will be appearing this evening, unless I am mistaken. I do not think we are tackling the real problem, or perhaps we are tackling it the wrong way. That is what worries me.

Dr. O'Neill: To answer your question, I will just reiterate that we do have a bill before us today, but this bill is not the only weapon Health Canada is using in its battle against smoking. There are instruments other than this bill. Let me just remind you that a number of education programs have been developed -- the program "Quit for Life," for example.

Senator Lavoie-Roux: But when we do an assessment, we find the results are not very good.

Dr. O'Neill: I cannot speak for my colleagues in other sections of the department, who are responsible for these programs. All I would like to do is point out that our approach is as comprehensive as possible. We are tackling the issue on several fronts, and this bill is only one of the instruments Health Canada has given us.

You also mention the impact preceding legislation has had on smoking among the public. I agree with you. We cited some figures earlier on; these figures do show a change -- an increase -- in smoking among young people. We should also bear in mind the fact that we are working towards long-term impacts, not short-term impacts.

And there is one more thing: the previous act was invalidated by a Supreme Court ruling, so there was a legislative vacuum for a while. The impacts of the previous Tobacco Act were not felt after five years, but after a generation. These are long-term impacts. We have to stop looking at the short term, we have to stop thinking that this legislation is going to bring down smoking among young people next year. It does not work that way. Unfortunately, we will not be seeing a change next year, but in ten years.

Senator Lavoie-Roux: Forgive me, Dr. O'Neill, but yesterday I heard -- and my colleagues can correct me if I am wrong -- that every year 400,000 young people under 15 start smoking. You say that this legislation will have an impact in ten years. But if these young people have not stopped smoking in ten years, what will the impact be?

Dr. O'Neill: I am talking about the impact on the rate of smoking among the young people themselves. That rate will not change over a year. We hope that you will be seeing the rate of smoking among young people coming down within five to ten years, or more.

[English]

The Chairman: Senators, at this point I have both Senators Nolin and Fraser on my list. We are a good half-hour over our time. I am in your hands.

Would you agree to have the officials come back again later this evening after the minister is through so that we can move along with a certain amount of courtesy to the people who have come here to testify before us?

Is that all right with you, gentlemen?

Dr. O'Neill: We are at your disposal.

The Chairman: I will keep the list here with Senators Nolin and Fraser at the top.

Our next panel is the Canadian Tobacco Manufacturers' Council, represented by Mr. Robert Parker, who is the Chairman and Chief Executive Officer. At the same time, we will have Dr. John Luik come to the table.

Mr. Parker, would you proceed, please?

Mr. Robert Parker, Chairman and Chief Executive Officer, Canadian Tobacco Manufacturers' Council: Madam Chairman, the Canadian Tobacco Manufacturers' Council (CTMC) is the industry association that represents Canada's major manufacturers: Rothman's, Benson & Hedges, RJR-Macdonald Inc. and Imperial Tobacco Ltd. The CTMC represents these companies on matters of common but non-competitive interest.

Our industry has long since agreed that given the inherent and well-known risks of tobacco use, governments have legitimate interests in regulating the marketing, promotion and sale of this product. Those risks also warrant continuing efforts by government to persuade people not to use the product.

The disagreements we have with governments and others on this issue therefore focus not on the fact of regulation per se, but rather on the nature of the regulation and the presence or absence of objectively measured outcomes. In our view, the standards for the regulation of tobacco should be the same as the standards for regulation in other fields -- fairness, legality and effectiveness, all justified on a cost basis.

When I last appeared before this committee in March 1997, you were dealing with Bill C-71, which became the Tobacco Act. The bill before the committee today constitutes amendments to that act with relation to the sponsorship provisions, upon which I will comment specifically in a moment.

The introduction of the Tobacco Act became necessary when an industry challenge led to the Supreme Court of Canada striking down significant sections of the predecessor legislation, the Tobacco Products Control Act in 1995. Passage of the current act by Parliament last year triggered a second challenge by our industry, which, as has been referred to, is now before the courts.

The basis for the current challenge is essentially the same as for the previous one, and includes the restrictions that the bill unjustifiably places on legitimate rights as manufacturers of a legal product to communicate with adult customers.

I mention that history simply to place in context the amendments that are before you. Bill C-42's amendments replicate that sponsorship for tobacco advertising and take it a step further. Sponsorship advertising would be fully permitted for only two more years. It would then be made subject to restrictions that would essentially remove its commercial viability for the next three years, and then be banned entirely.

In our view, those are precisely the kind of excessive restrictions that were found by the Supreme Court to be unjustified and illegal for the Tobacco Products Control Act.

Contrary to what you will hear from other witnesses, there is no reliable evidence, in our view, of any connection between advertising -- either of the product or of sponsored events -- and the decision that anyone makes to smoke.

Some two dozen countries around the world have banned either the advertising or the sponsorship of tobacco, in some cases more than 20 years ago. What is the record of smoking prevalence in those nations? At best it is mixed and inconclusive. There are cases where smoking increased after advertising bans; there are cases where it stayed the same; there are some cases where it declined. In one nation that had banned advertising 23 years ago, smoking by youth is now at an all-time high.

At worst, this kind of ban can be directly counterproductive. There is Canadian evidence on that point. The TPCA ad ban came into effect in 1989. According to surveys conducted by Statistics Canada and Health Canada, and there are pages attached to my brief reflecting that information, after gradual declines through the 1980s, the smoking behaviour in the youngest group measured, in youths aged 15 to 19, changed direction. The percentage of smokers in that group increased until 1994. If you follow those figures, you will see that youth smoking remained relatively and almost absolutely unchanged since the end of 1993.

There is the question of whether the ban on advertising caused the increase in youth smoking between 1990 and 1993. It seems illogical on the surface. Was there an unintended forbidden-fruit reaction among the youth? It is impossible to say.

I would suggest, particularly in light of the support that you will hear in favour of communication bans and higher taxes, that you should be aware that the last time we had those two conditions in place in Canada, youth smoking increased and overall smoking remained unaffected.

On the overall subject of sponsorship, and as you consider these amendments, I would conclude with the following observations. For several decades, companies in the tobacco industry have built what they hoped would be enduring and successful partnerships with the organizers of cultural and sporting events.

For historical reasons, among them the fact that during the TPCA advertising ban sponsorship was the only permitted venue available, tobacco sponsorship today provides a disproportionate share of sponsorship support. Last year, those partnerships collectively provided some $60 million in direct sponsorship funding, helping to present hundreds of high quality and popular events in communities across the country. They were attended and enjoyed by millions of Canadians and hundreds of thousands of foreign visitors.

The commercial purpose of sponsorships is clear, to associate a tobacco brand name with well organized and professionally presented events, and through doing so, to promote that brand choice to adult smokers and to defend that brand's market share. None of the event organizers endorse or promote smoking. Like their sponsoring companies, they regard it as a legitimate choice that should be made only by adults.

When considering the court challenge that would ensue if these restrictions come into force in the fall of the year 2000, the commercial justification for much, if not all, of this activity will evaporate. It is not a five-year window, in our view -- it is a two-year window.

Freedom to sponsor an event but not to tell the public who the sponsor is, or not to tell them in any significantly effective method of communication, simply eliminates sponsorship. In much the same way, in the same way that freedom to give donations but only under anonymous conditions will significantly reduce donations. Under these conditions, no company in any industry would undertake an endeavour of this type.

Some of the tobacco-sponsored events will obtain alternate funding; one or two have already done so. However, the total pool of funds will shrink substantially. There is so far no sign that other industries separately or collectively will or could commit anything close to the total being lost as a result of this ban.

Some events will fail; others will be weakened or reduced in size. Some communities will lose the enjoyment, tourism and hospitality dollars generated by those events and that is unfortunate.

Thank you for your attention. I look forward to your questions. I understand that some specific amendments to the bill may be proposed later. I believe I know what they are. I will be happy to answer any questions you may have on those.

Mr. John C. Luik, Individual from the Non-Smokers' Rights Association: Honourable senators, I am appearing as an independent witness. You have my brief. The most useful thing I could do in my 10 minutes is to address the questions raised by Senators Lynch-Staunton and Joyal as the basis of what I wish to say.

This is now the sixth time since Minister Epp introduced his legislation in 1987 that I have appeared before either this committee or a House of Commons committee to speak about the issue of tobacco advertising.

The questions that the gentlemen raised this afternoon will provide an excellent format for my remarks.

Let me say something of my background on this issue. Since 1987, I have written dozens of papers on the issue of tobacco advertising. I am also the co-author on perhaps the definitive text now used around the world on the question of alcohol and tobacco advertising.

More particularly, in February of this year, the Lancet, a leading medical publication, published an article of mine about the very issue that this bill addresses, the question of sponsorship.

More to the point, as Senator Lynch-Staunton directly asked Health Canada officials, is the question of whether there is any evidence that a single person will begin to smoke if a person like Mr. Villeneuve appears with a Rothman's t-shirt or suit.

I emphasize these points, because they connect to the freedom of expression question raised by Senator Joyal. That is to say, in our system of government, constitutional infringements on protected rights are justified only if the government is able to provide demonstrable evidence that the infringement will serve a public purpose.

In any of these debates of the last 10 years, there has not been a single piece of credible evidence presented which demonstrates that there is a public purpose attached to banning tobacco advertising or sponsorship in Canada or in any other country.

One of the things I found interesting in listening to Dr. O'Neill from Health Canada was the total absence in his testimony of a single piece of credible research as evidence to demonstrate that tobacco advertising or sponsorship leads anyone, and more particularly any young person, to begin to smoke.

The silence of Health Canada, indeed the Government of Canada, on this issue, which goes to the heart and credibility of this piece of legislation, is astonishing. Health Canada seems to feel that it is absolved of any necessity to provide you with any credible evidence that demonstrates that tobacco advertising affects the decision of young people to smoke.

Let us go to those questions. Is there any evidence that this bill will address the problem of youth smoking? Toward the end of his testimony, Dr. O'Neill acknowledged to you, that youth smoking is a multi-factorial problem, which is the first time that I have heard Health Canada say that. If you were to look at any of the literature that has been written on the problem of youth initiation of smoking -- by myself or by anyone else from the health community -- you would find that anyone who writes about this would say that youth smoking is a multi-factorial problem.

They then go on to list a series of things that researchers refer to as the predictors of smoking onset amongst children. One researcher, a Canadian, listed 430 different predictors of youth smoking. Let us winnow that list down, however. For our purposes, we will use what are usually given as the salient five or six. In no particular order, they are: low social and economic status, learning disabilities, a tendency to drop out of school before age 16, low self-esteem, and high rebelliousness. Indeed, in the major study done of a multi-year cross-sectional analysis of what led children to smoke by a Canadian researcher and two Australian colleagues, they looked at all the existing literature, which I have referred to, in terms of the predictors of what led children to smoke.

In all of the literature, they found but two studies that touched on the question of whether advertising led children to smoke. One of those two studies dealt with the very question that this bill deals with, and I am again astonished that our friends from Health Canada have not even referred you to that study, because it answers the question posed by Senator Lynch-Staunton.

Neither of the two studies that dealt with advertising was predictive, nor was the one that dealt with tobacco sponsorship. Let me give you a layman's answer as to what that means. It means they did not establish a connection between either sponsorship in particular or advertising in general as predictive of whether young people would begin to smoke.

Again, the literature on this issue of youth smoking is decisively clear. There is a complete dearth of literature that suggests in a reputable way that sponsorship or advertising is a predictor of youth smoking. In fact, if you look consistently at those predictors that come up -- low economic status, poor learning abilities, a tendency drop out of school, low self-esteem and rebelliousness -- it is difficult to see how any of them is even remotely associated with tobacco promotion, let alone tobacco sponsorship.

I would like to make a more general point, which is that, Health Canada has been coming to you and asking for particular tobacco legislation for almost 20 years. In that time, the focus of their attempts to persuade this body and the House of Commons has not centred on multi-factorial approaches -- instead, they have centred almost exclusively on a departmental obsession with advertising and sponsorship. My point is that that obsession with advertising and sponsorship is unsupported -- both in the academic literature about why children begin to smoke, and in their own department's findings.

It is interesting that the department, in response to Senator Lynch-Staunton's question, has not undertaken a single study in Canada as to whether sponsorship leads a single Canadian youngster to begin smoking.

They are reticent about this information, so allow me to refer you to a study that appeared, as I indicated earlier, in the Lancet of this year. In that study the question was raised, and the study was carried out in the U.K., as to whether motorcar racing was a predictor for smoking among boys.

In the study, it was interesting to note that 128 boys were looked at as people who, in fact, enjoyed viewing motorcar racing. Of these, according to the authors, 16 subsequently became smokers. Statistically that is less than the number that you would predict, according to the smoking rate in the United Kingdom, and that number is not even statistically significant, as another author and I pointed out.

When you look at the global evidence on whether or not advertising and sponsorship are a predictor of youth smoking, there seems to be, by the silence of Health Canada and by the wealth of evidence from reputable academic sources, a consensus that such connections do not, in fact, exist. It is this, of course, that goes to the very question that Senator Joyal raised about free speech and freedom of expression.

If no compelling public purpose is served by this legislation, if it is not likely to do anything to address the deplorable state of youth smoking in this country -- which has become worse over the last decade -- then, I would suggest, there is no purpose to this legislation at all.

Senator Kenny: Mr. Luik, are you now or have you ever been in the pay of tobacco company manufacturers?

Mr. Luik: I have certainly acted as a consultant, yes.

Senator Kenny: Mr. Parker, in your opening comments you talked about not objecting to government regulation. What you wanted was the same standards of regulation as in other fields.

Mr. Parker: That is what I said, yes.

Senator Kenny: Could you help the committee in terms of how you would like to have tobacco objectively measured? What sort of outcomes would you like to see? Would it be in the context of toxins emitted? Would it be in the context of diseases caused? Would it be in the context of the number of people who die from cigarettes?

Mr. Parker: I am not convinced that regulation is capable of affecting the number of people who smoke. It certainly is the case, and you have the figures before you, that all of the government programs of the last ten years taken together have produced no significant variation in the overall smoking rate in Canada.

The standards that I referred to in my opening remarks are, first of all, that the regulations be legal and constitutionally acceptable, unlike the sections of the TPCA that were struck down by the Supreme Court for that reason. We believe that they ought to be effective, and that they ought to be regularly measured. I do not believe that can be said of the regulatory packages in total that have been in place for the past 10 years. I am aware of only one proposed study by Health Canada on the effectiveness of anti-tobacco programs, and that was cancelled before it was ever undertaken.

Do I believe that advertising and promotion for tobacco-related events or for the tobacco products themselves should generally not be visible to children and certainly not be directed at them? Absolutely. There are many areas in which we are in general agreement with the goals and, in some cases, with the methods. There are an equal number of instances where we think that the methods are extreme and unworkable, however. Banning sponsorships, the issue before you, is certainly an example of that.

Senator Kenny: With respect, sir, you are staying on the message, but in your comments to us you referred to the inherent well-known risks of tobacco use. I have invited you to describe to the committee how you would like to see tobacco use objectively measured; toxins emitted, diseases caused, mortality, you name it, tell us how you think you should be objectively measured?

Mr. Parker: I am not sure I understand the question. There is regulation in place that will require analysis of smoke at a very considerable cost to the industry. Those are regulations under the Tobacco Act.

There are messages on the packages. They were originally put there voluntarily by the industry, but they have long been a matter of law. There are discussions within the department -- and I think this is well known -- that those messages should be changed.

I have said before this committee and others and in any number of media interviews that tobacco consumption increases the risk of a substantial number of diseases. Those risks are inherent and known. In fact, it is the single highest lifestyle choice in Canadian society, as I understand it from people who have measured that, and the same is true in other countries.

I have acknowledged that it is legitimate for government and others to be concerned about undertaking means to reduce smoking. As long as tobacco is a legal product, the relevant question is what means should be undertaken? I do not understand what you are asking me to respond to.

Senator Kenny: I apologize for not asking the question in a clear manner.

You have said that you agree that governments are entitled to regulate tobacco use. Are we okay so far?

Mr. Parker: There is a narrow question on consumption use of tobacco, senator, but I think what you mean is its production, manufacture, sale and promotion. Absolutely.

Senator Kenny: You go on to say that you take issue with the way government proceeds, because you want to see regulation and the presence of objectively measured outcomes. What objectively measured outcomes do you want to see? I have given you three choices, but I have opened it for others. If toxins emitted is not right, or if diseases caused is not right, or if deaths caused is not right, I am inviting you, as the industry representative, to tell this committee how you feel your product could be objectively measured.

Mr. Parker: Let us take package warnings as an example. At the time they were introduced, the first attempt by government was to have them imposed in, I think, 90 days. It could not have been done in that period of time. It was done, but it required changing all of the package printing cylinders used to produce industry packages. It cost between $30 million and $40 million, and it took over a year to do.

A point we made at the time before government and in fora such as this one was that there was no evidence -- and government had not sought any -- as to whether changing the package warnings to larger ones or to different messages would have a greater effect on smoking. Government produced what is referred to as a regulatory impact assessment statement that said, "Yes, smoking will decline," and they gave a figure.

You can see in front of you the figures of what has happened to smoking over the last five years as measured by StatsCan. If government wishes to regulate or prohibit youth smoking or any particular activity, it seems to me a reasonable basis for concluding that it could be effective at the outset. No one can demand certainty on an issue like that, and there must be a commitment to visit it again after a period of years and see whether it has had the desired effect.

The best possible example is the youth increase in smoking. We have heard quite a bit of nonsense about smoking prevalence in Canada and that smoking in the overall population plunged when taxes began rising in the mid 1980s. That was not the case. You have the figures in front of you. We heard that smoking increased after the 1994 tax rollback. That was not the case. Again, you have the figures there.

We do know that smoking by youths 15 to 19 years old -- precisely the group that is of most concern to Canadians -- increased when advertising was banned, and when taxes were still high and rising all across the country. It levelled off at the time taxes were reduced. It has not changed significantly since. That is the kind of measurement and reaction I was referring to in my statement.

Senator Kenny: Madam Chair, I have five questions with which I would like to deal. I must say that the first three times I tried to ask them, I did not get an answer at all. The witness is using up my time. He is not allowing me to ask my questions, and is giving me speeches instead. I ask the indulgence of the chair.

The Chairman: You have the indulgence for the chair for a certain time, but there are five other senators who wish to ask questions.

Senator Kenny: Mr. Parker, do you believe that if tobacco was introduced as a new product today, it would be considered legal?

Mr. Parker: I have no idea, senator.

Senator Kenny: You talked about tobacco advertising earlier on, and suggested to us that the sole reason for sponsorship is that the three companies you represent are concerned about market share.

Mr. Parker: Yes, sir.

Senator Kenny: You make that assertion before us, and you have done so previously before this committee, and before the committee on social affairs. Could you please provide this committee with evidence to that effect? Could we please have statistical evidence supporting your argument? Could you provide us with evidence that is credible, scientific, and demonstrates that all you are doing is achieving a greater market share, or that all your component companies are doing is achieving a greater market share?

Mr. Parker: As compared to trying to promote the decision to smoke?

Senator Kenny: Yes.

Mr. Parker: I would be happy to, senator, if you would just tell me what volume of it you want.

In North America, we have a 40-year laboratory that is worth hundreds of billions of dollars. Advertising of tobacco products in the United States, which is about to be restricted but will still continue, has gone on for at least the last half century. From the 1960s to the present, smoking has declined.

In Canada, advertising went on until 1988. It resumed in 1996, about six months after the Supreme Court decision. It stopped again last spring, when Bill C-71 was introduced. While that legislation purports to permit advertising, it is, in fact, a de facto ban.

Some have suggested that the purpose of advertising is to encourage the decision to smoke. Billions of dollars have been spent over a 40-year period in both of these countries, however -- not just on advertising but on all kinds of other promotions. Hundreds of agencies and hundreds of brands have been involved, and the incidence of people deciding to smoke has declined. In Canada it stopped declining in 1986, but it has not gone up.

It seems to me, senator, that it is a simple choice. Either all the companies in the industry hired incompetent advertising people all that time, or the proposition itself is misplaced. I choose the latter.

Senator Kenny: Madam Chair, with respect, we are getting anecdotal evidence. I asked for the scientific evidence to be placed before this committee.

I do not expect you to have it in your back pocket, Mr. Parker. I am asking for the scientific evidence that demonstrates advertising campaign by advertising campaign that it was directed at market share, and not directed at increasing smoking, particularly amongst youth. I should like to see your scientific support for that argument.

Mr. Parker: What do you mean by scientific support, senator? These are business activities.

Senator Kenny: These are business activities, but you are arguing on the basis that the government is regulating you without scientific support. You are saying you are proceeding on the basis simply of market share, and you are doing it without substantiating it. You are sitting in front of us saying, "This is what we are doing." I am asking you to support it. Bring us the documentation. Bring the support for your arguments. Provide us with something tangible that we can see, and that we can have other people analyze. Demonstrate to this committee that what you are saying is, in fact, the truth.

The Chairman: Mr. Parker, will you undertake to do so?

Mr. Parker: Madam Chair, I will undertake to do my best to satisfy the request of any senator on the committee. I am not sure what is meant by "scientific proof of business activities."

I outlined where I believe the evidence lies, what the companies have been doing, and the proof or disproof of the proposition that advertising promotes the decision to smoke or increases it. I think there is massive evidence in the other direction. A significant volume of evidence was put before the court in the TPCA trial. I will start there, and I will provide that to the senator. If more is requested, all he has to do is let me know.

Senator Bryden: We did not receive your biographical information. Are you a medical doctor?

Mr. Luik: No. That is a social science "doctor."

Senator Bryden: I understand your qualification.

What is your occupation? For whom do you work, or what sort of business are you in?

Mr. Luik: I am an independent consultant. I work for a variety of people.

Senator Bryden: Where are you from?

Mr. Luik: I live in Niagara-on-the-Lake.

Senator Bryden: Are you here representing anyone?

Mr. Luik: No, I am not. I am not being paid by anyone, either. I am just here to contribute to this discussion.

Senator Bryden: You are here just out of interest in this subject, are you?

Mr. Luik: Yes.

The Chairman: Mr. Luik is here at his own request.

Senator Bryden: Part of what I will say relates to what Senator Kenny was saying -- perhaps a little more directly than I would say it.

It would appear that the tobacco industry is demanding of government, and those people who wish to take some steps to curb tobacco advertising or promotion, a level of proof that this approach will be effective. I do not know that the industry would be prepared to indicate that it is not effective. You used some numbers and said that, "We have been advertising in North America for years and we have only been able to maintain our position, or it has gone down."

Do you have evidence that shows that if you had not advertised, it would have gone down any further?

Mr. Parker: I wish to draw a difference between market share versus overall prevalence. Market shares changed significantly in Canada and elsewhere over that period, brands and companies that were once leading fell on hard times and failed, while others have become much more successful.

In Canada, the major story in the industry for the last 10 years is a significant growth for Imperial Tobacco at the expense of the other two companies. However, the overall smoking rate has not changed. That is what I was referring to earlier.

Senator Bryden: Would the overall smoking rate have changed -- gone downward -- if so many billions of dollars had not been spent on advertising, whether it was for market share or not? Do you have evidence of that?

Mr. Parker: No. I have no way of answering that question.

Senator Bryden: I have a great deal of difficulty with statements made both in your brief and Mr. Luik's brief. I heard the same thing when I was a teenager, when I was going to university, and when I was in the States. This was coming from the tobacco companies.

It is the same sentence, except that a few words have been changed. The sentence is, "There is no reliable evidence of any connection between advertising and the decision of anyone to smoke." When I was going through those periods of my life, that sentence would have read, "There is no reliable evidence of any connection between smoking and lung cancer." That went on for years and years. We have now had tobacco companies that are voluntarily -- that is, after having their tails sued off in the U.S. -- spending $200 billion to try to pay for some of the damage.

Mr. Luik, when you say that there is "no evidence" -- or "no reliable evidence," you must realize that some of us have great difficulty seeing that position as any different from the one that your industry took for years and years in relation to lung cancer or whether or not nicotine was being introduced to provide additional addiction. The credibility of the industry in this regard is very shaky.

Mr. Parker: I recognize that -- it is impossible not to do so. There are doubts about the credibility of the industry.

Whether it is questions about nicotine manipulation or on the evidence of the impact of sponsorship advertising on the decision to smoke, one should not look at what the industry says or does not say. When that issue of nicotine manipulation arose four years ago, Health Canada spent approximately $400,000 on a study to see whether it was true. They visited plants and examined the product. The information contained in those studies is available. At the end of that, both the minister and her officials said publicly that there was no truth to the accusation. There was and had been no manipulation of nicotine by the Canadian companies.

I understand this, because I represent the industry. However, I may have a different view on the facts on these kinds of issue. I would ask any legislator, or anyone, to look at the facts as opposed to the claims that are being made. That is why I attached prevalence numbers from StatsCan .

Senator Bryden: When you look at facts, you must look at all of the facts. We must look at all the facts from our point of view and from your point of view when we are talking about the impact of promotion and advertising. You have done your job and taken a selective look, I believe.

Points that you made were also made by representatives from Health Canada. There are many factors that influence whether a young person begins to smoke, namely, whether their parents smoke, the peer pressure that is involved, their social and economic situation, and so on. All these factors are involved in that decision. Some of us are concerned about how many of those factors are within the realm of the tiny little levers that public policy can affect. One factor that we can affect is the bombardment of youth with advertising, whether it is Joe Camel or the Marlboro man, who has died of cancer -- as did his horse, from secondary smoke.

You made the point that you, as an industry, would be as concerned with preventing young people from beginning to smoke as anyone else.

Mr. Parker: Yes. Because of the health risks, we do not think that children should smoke. Nor should adults.

Senator Bryden: If you were successful in doing that, where would your market be two generations from now?

Mr. Parker: We have no way of knowing for certain, but the presidents of the company and the chairman of our board said publicly within the last few months that the people who suggest that underage smokers are the future consumers of the industry and that tobacco companies are recruiting them as future customers are wrong. That it is not true, and we are willing to bet the industry on it.

It is difficult to stop young people from experimenting with things that they are not supposed to do. Tobacco is only one aspect of this. We have done what we can for the last 10 years to ensure that the retailers to whom wholesalers sell -- and, we do not sell to the end users -- refuse to sell to young people without asking for picture identification. Young people must prove that they are of legal age to buy tobacco.

Senator Bryden: There is a law that prohibits that.

Mr. Luik: Yes there is, and it has always existed.

Senator Bryden: We are trying to say, "If that is of any help -- that is, if it stops one or two teenagers from starting to smoke -- then the law that prohibits a corner store owner from selling to a minor is worthwhile.

Mr. Parker: Absolutely.

Senator Bryden: We are saying that, if preventing those same teenagers from watching their heroes in circumstances where it is not only glamorous to drive a fast car or to shoot a fast puck, but also glamorous to smoke a Virginia Slim, or whatever, stops one or two teenagers from starting to smoke, then it is worthwhile. It is one of the levers that perhaps government can use.

Mr. Luik: I would like to say two things. First, in my brief, I have taken pains to provide you with evidence that has not been produced by the tobacco industry, so that you would not be able to say that this evidence has been cherry-picked. Three leading non-smoking advocates did the study that I quoted. Indeed, it was published in the British Journal of Addiction. Thus, it is not the tobacco industry or a consultant to the tobacco industry telling you that advertising does not have a connection. The people who are telling you that looked at 27 studies produced over 15 years -- the most definitive studies undertaken around the world.

As to your question about levers, if this lever you are talking about had any evidence of being successful, I think no one would suggest you should not pull it. I have tried to address your question about whether or not other levers could be used. I have cited and article published two months ago in the American Journal of Public Health, and I have provided the committee with a copy of it.

That article describes two interventions to prevent children from becoming smokers that were tried for a period of three years in the United States. Those interventions were dramatically successful, yet no one in Canada, and no one at Health Canada, ever discusses them. I did an estimate of how much it would cost if you tried those experiments. They were done in the Baltimore public schools with children in grades 1 and 2. One is called the "Good-Boy Bad-Girl Behaviour Game." The other is called "Mastery Learning." If you tried those on an experimental basis in Canada, I estimate they would cost about $240 million per year. Yet they have dramatic effects on preventing smoking among young people.

You talk about pulling the right lever. There are some examples that the health people in this country never seem to discuss. They are obsessed with the one lever that does not work.

Senator Lynch-Staunton: I have one question for you, Mr. Luik. If you asked me to name those five predictors, I do not think I would have guessed one of them. What role do peer pressure and role models play when young people -- 10, 12 years old -- take up smoking? You see a lot of smoking in television and films, and I am convinced that it is deliberately put there by manufacturers to make it look glamorous and to attract young smokers. There is also the fact that the more forbidden it is, the more you are tempted to try it. Are those three key predictors, or are they secondary to the five that you mentioned?

Mr. Luik: The question about peer influence is a hotly disputed one, as are the questions about parental influence and role models. People come down on both sides of the issues. It is interesting that the two recent studies that have come out of the U.K. examining this discounted both of them as being significant predictors.

As to your third one, the forbidden fruit, it comes under what social scientists call rebelliousness. There is a significant amount of evidence that, when you talk about smoking, you talk about a cluster of problem behaviours. The same children who smoke are liable to use alcohol, to be involved with illegal drugs, and to have problems with early sexuality.

That form of cluster behaviour is predicted very strongly with anti-social, adult, or society-adverse behaviours. That is, people who are in that group tend to take the fact that adult society says they should not do any one of those things as a cue to engage in the very behaviours we do not would not them to do. Yes, there is a fair unanimity that forbidden fruit acts almost as a trigger of the behaviour in young people.

Senator Lynch-Staunton: Mr. Parker, you mentioned you were thinking or had heard that there amendments to the bill might be presented. Could you elaborate on that?

Mr. Parker: Our understanding is that some of the other witnesses you will hear from may propose amendments. I have not heard from any individual committee members. Members may have amendments; that is what they are here for.

Senator Lynch-Staunton: I asked a question of the health official, Dr. O'Neill, regarding the regulations. The reason I asked that question -- and I will just summarize my concern -- is that increasingly, Parliament is passing legislation which is made up of statements of intent or general purpose, and leaving it up to Governor in Council to flesh out the legislation through regulations. This has become a dangerous pattern, and we are all party to it, because we are passing that legislation. I think it is wrong.

The Tobacco Act, I think, is a flagrant example of where the government can regulate every aspect of tobacco production, from the moment it is picked until the moment it is put into the retailers' hands and into the smokers' hands. These amendments set a two-year deadline and a five-year deadline. Has your study -- or your legal experts' study -- of the amendments led to a conclusion that would allow the government, through regulations, to make exemptions to those deadlines?

Mr. Parker: The fast answer is no. I am not aware of any exemptions. The previous witnesses -- and honourable senators know more about the regulatory process than I will ever know -- made the essential point that regulations cannot undermine the substantive purpose of the bill.

We certainly agree with the contention that Bill C-71 was an overwhelmingly regulatory bill, as opposed to a legislative one. We are only at the beginning of the consultation procession to write those regulations. It is a gigantic and potentially very burdensome process. I can understand fine details being left to regulation. In this case, we believe it is more than that.

Senator Lynch-Staunton: I am sorry I do not have more to support the statement I read, but I will try to do some homework and then, when the minister is here, my questions will have more meat to them.

Senator Joyal: Mr. Parker, I should like to come back to one of your statements about how all the government programs over the last 10 years have not produced the desired results.

We all recognize that the property's dangerous product is its addictiveness once someone has started smoking. Those among us who have tried to quit in the past know how difficult it is for someone to do that. That is why there are a lot of new drugs and medicines to help people quit smoking. We see them advertised on television.

You put forward an argument that a limitation on advertising might not be the best route. Should we not, then, take the alternative route of trying to regulate the products in a way that would limit the properties that maintain the addictiveness of the product?

Mr. Parker: This area is generally referred to as product modification, senator. It is a purpose of Health Canada in the blueprint published some years ago. It was stated that, for product modification to be effective, it must carry with it consumer acceptability. There is no point in forcing manufacturers to make a product that no one will buy. The manufacturers have no objection to the process; they participated in it in the past, and they will do so again.

Nicotine and tar delivery levels were brought down in Canada, on a voluntary basis, over a period of close to 10 years beginning in the late 1970s. I think it is worth pointing out in passing -- and it is ironic -- that it is difficult to tell consumers about a lower tar and nicotine product if you are not allowed to advertise.

Senator Joyal: I understand that totally, but if there were a limit on the content or percentage of the addictive elements or chemicals in all of the products, the consumer would have no choice. If he wants to smoke a Canadian-made cigarette, he would have to buy the same product with the same limitation all over the territory. It is not as if he would have the choice of buying one with less nicotine or one with more nicotine.

Mr. Parker: If they were all regulated?

Senator Joyal: Yes. If the content of nicotine were heavily regulated, there would be no choice. If you wanted to smoke, you would have to smoke what was offered to you.

Mr. Parker: Not that long ago, four out of every ten tobacco packages sold in Canada were contraband, smuggled in to avoid the high prices caused by taxes.

We are concerned by the regulatory approach that you talk about. In fact, one of your former colleagues introduced a bill not too long ago to bring nicotine levels down to below the lowest-level nicotine product on the market. It would have effectively banned every product currently available in Canada, and made only those very low ones available.

I can tell you that consumer preference may not be for the very highest nicotine levels, but it is not for the very lowest either. It is from the middle level to the upper part of the range.

There is also debate about what the most dangerous part of the cigarette is. It is a long and complicated argument, and I do not want to take up your time with it tonight. It is best stated this way. Is it better to maintain nicotine levels -- which is what smokers want -- and to reduce tar, which contains the chemicals that are dangerous to health? That is not to say that nicotine by itself is a safe substance. Frankly, I am not qualified to comment on that. Alternatively, is it better to reduce nicotine, because that is habit-forming, and leads people to continue to smoke?

I would say there are people in the anti-tobacco community and people in the tobacco community who have views on all sides of that issue. It has not been resolved as far as I know.

Senator Joyal: I have a simple question, but one which is likely in the mind of every Canadian. Why did you agree to pay $202 billion to the American government to offset some of the damages caused by tobacco? Are you ready to pay the Canadian government an amount of money to settle a similar kind of court case out of court? It would help us to pay the deficit.

Mr. Parker: As the head of an association, on your latter question I would say "no," subject to checking with my members. I do not represent any of the U.S. tobacco companies. Some of them hold shares in one or more of our members.

The broad reason that they and the State's attorney settled -- it is obviously a two-part decision -- was that both felt it was a better outcome than pursuing the case to its end. Take the total tax take from governments in the U.S., plus the settlement, and the total tax take to governments in Canada -- based on today's taxes, the governments in Canada will get more.

Senator Moore: Mr. Parker, in your brief you mention that, in 1997, the Canadian Tobacco Manufacturers Council provided some $60 million in direct sponsorship funding. What was the total amount expended by that council on advertising in 1997, exclusive of the direct sponsorship?

Mr. Parker: It is not done by the council, senator. The individual member companies do it. I believe the total is between $70 million and $80 million. That is another $10 million to $20 million on top of the $60 million figure.

Senator Moore: I, too, was taken aback by the statement in your brief to which Senator Bryden referred. You say there is no reliable evidence of any connection between advertising of either the products or sponsored events and the decision by anyone to smoke. So why not save the $70 million or $80 million?

Mr. Parker: It is about market share, senator. Ten per cent of Canadian smokers change their brand of choice every year. Each percentage of market share is worth $22 million in net revenue to the company that gains it.

Conversely, if they lose that much, it costs them that. They are spending $75 million to chase $220 million in net revenue. They will not all be right. Market shares have shifted over the last ten years, but that is the reason for the pursuit.

It is the same, I might add, for all consumer products. Market share is the name of the game. Gaining market share is disproportionately profitable. Losing it is disproportionately costly.

Senator Moore: You are saying that, when a product is advertised, that advertisement does not include any element of convincing the consumer to use the product, let alone the particular brand. I find that hard to believe. I am just a simple guy from Nova Scotia, but I find that hard to believe.

Mr. Parker: Let me clarify. There is a category of products called newly introduced products. When video cassette recorders were first on the market, everyone's advertising was obviously aimed at saying this is product is now available and you should try it. Cigarettes, though, have been around for over a century. They are widely distributed and available. They are widely known.

The same thing is true of soap and gasoline and all kinds of other so-called mature products. That does not mean age of use. It means it is well known and widely available. There is no evidence that I know of nor that I have ever seen -- you might ask people in the advertising and marketing business -- that advertising soap increases the number of people who wash, or that advertising gasoline increases the amount driven. It is two decisions.

Senator Bryden: Soap and gasoline are not addictive.

Senator Moore: The bottom line is consumption.

Senator Lavoie-Roux: In 1987, Imperial Tobacco testified before the House of Commons during consideration of the Tobacco Product Control Act. They said their monthly market research surveys began with people aged 15. Do you know if Imperial Tobacco still does monthly surveys with 15-year-olds? If not, when did Imperial Tobacco stop doing that?

Mr. Parker: Senator, I am not familiar with the testimony, but I will acquaint myself with it if you can provide me with the date.

I will answer to the best of my knowledge. This subject was exhaustively covered during the TPCA trial. With one exception -- and they can explain it you to better than I can -- Imperial Tobacco does research, certainly in the last 10 years, only with people of a legal age to smoke. In 1987, that was age 16 in most jurisdictions in Canada. Now it is 18 or 19. They have repeated publicly in the last several years that they only do research with people who are of a legal age to smoke.

One study that they discussed extensively is called Project Viking, and it included people as young as 15. It concerned the possibility of changing people's minds about tobacco-related issues, the kinds of issues that we are talking about today. It was not about whether they would smoke, nor was it about the promotion of a brand.

If you wish, I will have one of the company executives or the lawyer that was involved in this testimony write to you directly.

Senator Lavoie-Roux: Do you know why they never made these surveys public?

Mr. Parker: All of their surveys for these purposes are competitive with the other companies. Some of the surveys were part of the court case and were made public. They are available in the public record.

Senator Lavoie-Roux: I would imagine that one of the important things to tobacco manufacturers is the health of their customers. What are the companies doing to protect the health of their customers?

Mr. Parker: I mentioned earlier that the companies put warning messages on packages on a voluntary basis in the early 1970s.

Senator Lavoie-Roux: Were they not obliged to do that by the government?

Mr. Parker: No. The circumstances at the time were that the Minister of Health proposed a bill that would ban advertising, and that would require messages to be put on packages. This was seven or eight years -- or more -- after the Surgeon General's report in the United States, when that first massive link to health consequences was made.

The companies were very concerned about controls on advertising, as my presidents here today would attest. However, they had no objection to putting messages on the packages, and they volunteered to do so. Some years later, those messages became a question of law. They have become progressively bigger. They now occupy the largest space on a pack of any nation in the world. That has been done.

Every study I have ever read indicates that the risks associated with tobacco are the highest of any substance in society. They are so high, in fact, that they exceed the risks as measured by epidemiologists. In that circumstance, I have represented the industry for more than six years. I am at pains to acknowledge that the health risks exist. We know they do, all smokers know they do, as do all non-smokers, youth and adults alike.

In our view, awareness of risk is not the issue. It is how do you persuade people who know this is risky, youth in particular, not to smoke. That is the difficult question.

Senator Mahovlich: Last week, Bill S-13 was ruled out of order by the Speaker in the other place. It would have provided funds to be used to educate our children. It would also have allowed for advertising. Perhaps a player like Wayne Gretzky could be used to advertise the deleterious effects of smoking.

Senator Lynch-Staunton: He smokes big cigars.

Senator Mahovlich: That is something else. Perhaps another player who does not smoke cigars could be used to counterattack all the other advertising. This would allow us to get on to a level playing field. Would that be the right lever?

Mr. Parker: The industry opposed Bill S-13, but not because of its purpose. We believed that it was procedurally incorrect. That was a question not so much for us, but for the Speakers. Two different decisions were handed down, one by the Speaker of the Senate, and one by the Speaker of the other place.

We thought that the supporters of the bill ignored a number of facts. The first is that the industry already pays a special annual surtax of more than $70 million, precisely for the purpose of reducing smoking. The industry has been paying it since 1994. It now totals more than $325 million paid to the government. The money is already there, and it is available.

A second reason for opposing it was that representations were made before Senate committees and elsewhere that attack ads on the industry with just such a program, a special tax, in California, had reduced smoking. I must tell you that I have gone to the trouble of obtaining the facts. From the moment that program was introduced in 1989, youth smoking in California has increased. It is 25 per cent higher than it was when the program started. I do not think the people who are supporting it -- all of them sincere in their goal -- had increasing youth smoking in mind. I can certainly provide you with facts and figures on the California experience or the Massachusetts one.

Overall, is it a good idea to have sports figures and other role models saying "no" to kids? I would like to see that tried. The money is there.

Senator Mahovlich: The money is there?

Mr. Parker: Yes.

Senator Andreychuk: I wish to ask a question of Mr. Luik. You said that there are no credible direct studies on youth smoking. As a social scientist, would you agree that many studies point to peer pressure and role models as having an effect on children's behaviour? There are studies saying that children will do what their parents do, and that they will do what their heroes do. They will do what their peers do. That linkage and those studies are available, is that not correct?

Mr. Luik: A certain number of studies talk about peers. There are very few that talk about heroes or role models. That is a common myth. It is not supported in the social science literature.

As to the question about parents, most recent studies discredit and downplay the role of parents in smoking decisions.

Senator Andreychuk: That was not my question. I was asking you as a social scientist to step out of the smoking issue. Forget about smoking, and just talk about the behaviour of children and adults. During my more than 10 years in family court, I was given daily reports of studies that showed how peer pressure, role models, parents, and other influences affected children. Would you agree that that kind of study exists?

Mr. Luik: Certainly. However, I am not competent to comment on them outside smoking.

Senator Andreychuk: If smoking were not taken to be a negative behaviour, then would you say those studies have credibility?

Mr. Luik: No. I would say that the problem about the influence that adult society has on the decision to smoke is exactly the opposite. People tell you that children begin to smoke because they want to emulate adults, and because they see adult figures who are smokers. In a society in which the overwhelming majority of adults no longer smoke, that is not true. It might have been true 50 years ago.

Researchers say children want to smoke because they want to act out in defiance of the things that adult society tells them to do. Government, or any other adult or authority figure, constantly telling children who are predisposed to smoke -- I am talking about the 30 per cent who smoke -- that they should not do so actually triggers the opposite effect. It leads them to engage in the behaviour. That is what is so counterproductive about Health Canada's approach in terms of education.

I do not mind telling children about risks, but study after study has shown that changing behaviour is the goal, not telling people about the risk.

Senator Andreychuk: If I accept at face value what Mr. Parker is saying, the reason they want advertising and to be associated with all these events is to get market share. If there are studies that say children follow by example, then do not put it as a negative. Put it as neutral. If they see Mr. Gretzky with a cigarette, might they emulate that?

Mr. Luik: If they are smokers, they might emulate that.

Senator Andreychuk: There is no attacking the reality that smoking is bad. We see a brand name on a vehicle. Plenty of studies say that kids will take Nikes if a certain basketball player has them, because it is the in thing to do.

Mr. Luik: That is exactly correct. If they are smokers, according to the brand theory, they would be attracted to that brand. There is no evidence that, if they are not smokers, seeing or going to an event with Mr. Gretzky, Mr. Villeneuve or anyone else would lead them to start smoking.

Senator Andreychuk: I disagree with you. There are kids who have never had basketball shoes who will buy a pair of Nikes because they have gone to a basketball game.

Mr. Luik: Senator, with respect, one of the problems that this committee seems to have, or that the government seems to have, is that we all like to argue by analogy. My role as a social scientist is to review what the people who study this and have "evidence" have to say about it. In many of these instances, the evidence simply does not support what our common sense perceptions might be.

The Chairman: Mr. Luik, I am sure we will hear from someone later on this evening who will give evidence counter to your evidence.

Senator Kenny: Mr. Parker, you mentioned the two rulings by the Speakers regarding Bill S-13. I would like your comment on the ruling the Speaker in the other place made when he ruled that bill out of order. The essence of his ruling was that the bill was not a levy for industry purposes. That is to say, that it flies in the face of common sense that the tobacco industry would favour any program that would discourage smoking, because youth are the future of the tobacco industry.

Do you have a comment to make on that?

Mr. Parker: I disagree with that particular statement.

Senator Kenny: Perhaps the bill should have been in order, then.

Mr. Parker: No, sir. That is not the only reason he gave.

Senator Kenny: "Do it more smoothly," I am told.

Do you accept, Mr. Parker, the Health Canada figures that 40,000 Canadians a year die from smoking-related diseases?

Mr. Parker: I have no way of knowing whether that is accurate or not. That estimate comes on a relative population basis, Canada to the U.S. It is based on a study of Seventh-day Adventists done in the early 1970s. To the best of my knowledge, no accurate records are kept in Canada of causes of death on a national basis.

Senator Kenny: Is it in the ballpark, Mr. Parker?

Mr. Parker: I have no way of knowing.

Senator Kenny: Do people die from smoking-related diseases, Mr. Parker?

Mr. Parker: Yes, indeed.

Senator Kenny: Does the industry have any corporate responsibility to those citizens to mitigate those damages in some way?

Mr. Parker: Senator, people who smoke choose to do so knowing the risks. You would need to have been living under a rock in this country for the last half century not to recognize the risks of smoking. When I was five years old, before 1950, these things were called "cancer sticks" and "coffin nails." Everyone knows that. Governments know that.

It is a legal product in Canada because government have continued to keep it as a legal product. Government regulates every area of its growth, manufacture, promotion, sale, and even consumption. If the way something is done should be changed, government has the power to do that. They are doing it right in front of us. The government takes by far the lion's share of the revenues produced by the product.

Senator Kenny: Mr. Parker, do you recall my question?

Mr. Parker: Yes, sir.

Senator Kenny: Could you repeat it for the committee, please?

Mr. Parker: You asked me whether companies have a responsibility for tobacco-related health damages.

Senator Kenny: To mitigate the damages caused by smokers. Would you answer that question, please?

Mr. Parker: No, sir, we do not.

Senator Kenny: You have no responsibility to your customers.

Mr. Parker: Of course we have a responsibility to our customers, senator. This is a product with inherent dangers in it. Our customers are aware of that, and they have been aware of that for a long time. They are made aware of it constantly by governments and by statements. You yourself have helped in that area.

I think you are trying to ask whether there is some failure in what the companies have done. In my view, the answer to that is "no."

Senator Kenny: My question to you was: Do you or the companies you represent have any obligation to mitigate the damage that is caused to your clients when they use your product?

Mr. Parker: Sir, I can only answer the question the way that I already have. I believe the companies have completely fulfilled the obligations they have to their customers, both in the letter and the spirit of the law.

The Chairman: Thank you, gentlemen, for appearing before us.

The Chairman: While we are waiting for the next panel to arrive at the table, our Senate law clerk has done some very fast research, and that research tends to indicate that the minister could not change the dates in Bill C-42 by regulation. That may answer some of the questions that were asked in the first part of the meeting.

We have several people before us now. From the Non-Smokers' Rights Association, we have Mr. David Sweanor, Senior Legal Counsel. From Physicians for a Smoke-Free Canada we have the Vice-President, Dr. David Esdaile. From the Canadian Cancer Society, we have Rob Cunningham, Senior Policy Analyst. From Info-tabac, we have the coordinator, Denis Côté.

Dr. David Esdaile, Vice-President, Physicians for a Smoke-Free Canada: With respect to Dr. Luik, I am not a real doctor; I am a family physician. "Doctor" means "teacher," so he was a real doctor.

I am the Vice-President of Physicians for a Smoke-Free Canada. We are strictly opposed to both the essence and the provisions of Bill C-42.

Bill C-42 builds on Bill C-71, and Bill C-71 included four items as its main goals: Restricting young persons' access to cigarettes; protecting young persons and others from inducements to smoke; protecting the health of Canadians from diseases caused by tobacco; and enhancing public awareness of the health hazards associated with these products.

We have constantly seen extensions on the tobacco issue with Bill C-71. The first extension put it to October of this year in terms of the applications of its provisions.

We had the requirement that all regulations had to come before the house. Finally, the day after the passage of the Tobacco Act, you will be aware that the health minister acknowledged his intent to exempt mode of support from the bill.

Physicians for a Smoke-Free Canada instigated a review of tobacco industry promotional expenses from 1987 to 1998 by A.C. Neilsen, and you have a copy of that with you.

The tobacco industry, from our point of view, and according to that report, has essentially cranked open their faucets. In the last five years alone, they have increased their promotional expenses by 450 per cent. The most dramatic increase, not surprisingly, has been in the outdoor billboard and transit-way ads. These are ads from which we feel children cannot reasonably be protected. The tobacco industry is now spending 25 times more on these ads than it did in 1991.

The lifestyle ads that we are theoretically trying to eliminate are now offered in the guise of sponsorship ads. Of course, these have no limitations on the age of the models used, no restriction on the health implications, and even worse, no health warnings. In the first six months of this year, the tobacco industry spent more on brand-name sponsorship advertising than it did in the whole of 1995.

Does the advertising affect our kids? Without drawing too strong a conclusion, I will draw a parallel between some information that is actually in the Physicians for a Smoke-Free Canada letter. You will see a graph, which I had blown up. It takes the A.C. Nielsen data and shows the tobacco company promotional expenses over the last 11 years. They took a decided dip, and then in the last few years there is a decided rise. On top of that graph is information provided by the president of RJR MacDonald on the percentage of young adults, 19 to 24 years old, who smoked in that same period of time. You can see that, as the money goes down, the smokers go down. I do not wish to overstate the causation, but I think it must be said it did go together.

From the questions I have heard, the Senate is certainly aware that in excess of 90 per cent of new smokers are minors. These children are indeed impressionable, and they are affected by lifestyle ads. They do not have the benefit of our last 50 years of knowledge.

The Concise Oxford Dictionary defines sponsorship as the promotion of one program in return for advertising time. This all comes down from the TPCA being overturned five to four by the Supreme Court. The Supreme Court at that time demanded a rational connection between an act which infringes on the Charter rights and the measures that are then imposed. There is a strong connection between the desire to protect young persons from smoking and a ban on lifestyle advertising, retail signs and billboards. That connection is entirely broken if the government allows sponsorship ads to persist and to replace the direct advertising.

Bill C-42 allows for the continuation of the present extensive lifestyle ads that really have become ubiquitous in nearly all neighbourhoods. We feel that Bill C-42 is illogical and inconsistent with the government's stated goal in the Tobacco Act. In particular, we do recommend and amendment in terms of outdoor advertising, which is really where the industry has put its money for exposure. It should be amended so that we do not have a delay in restrictions on billboard and transit advertising, or the advertising in retail outlets, which is where kids go to get their gum and their drinks.

We feel equally that there will be total loss of trust in the intent of the law and in the government itself if the prescribed date of implementation of the act can be set or changed simply by cabinet decision.

The Tobacco Act and Bill C-42 actually allows cigarette companies to sell goods and services under cigarette brand names as long as those goods and services are not associated with lifestyle and are not aimed at youth. Our great concern, and we believe this is a major loophole in the law, is that just because these products may not be youth oriented does not mean the advertising or sponsorship around them will not be exactly that. They may be placed in centres where youth will roam every day, so they will serve exactly the same purpose.

In essence, we see Bill C-42 as something that plays entirely into the hands of the industry. In particular, it allows them to do what they do best and that is delay.

[Translation]

Mr. Rob Cunningham, Senior Policy Analyst, Canadian Cancer Society: Our position on this bill is two-pronged. First, we support the total prohibition on sponsorship-related advertising, even after five years.

Second, we are opposed to the delays this bill establishes for the partial restrictions that were to come into force on October 1, 1998.

[English]

We do have a submission for the committee, entitled Compilation of Selected Evidence Regarding Impact of Tobacco Advertising and Promotion, which responds in part to the question raised by Senator Lynch-Staunton. Is it possible for this to be received as an exhibit by the committee?

The Chairman: With agreement of the committee, yes. There are also extra copies for individual members of the committee if they want them.

Mr. Cunningham: If we look around the world, we see that a growing number of countries are adopting total bans on sponsorship advertising; France, Belgium, New Zealand, and Finland have already done so. The 15-nation European Union has just adopted a law that will come into force over time. Australia has a near total ban that will become a total ban, and earlier this year we saw Quebec implement its own provincial law.

In this submission, there is extensive evidence of many kinds responding to Mr. Parker's claim -- which is false, in my view -- that there is absolutely no evidence. Independent agencies from around the world have examined the evidence, and they have concluded that advertising and sponsorship increases consumption.

The World Health Organization, World Conferences on Tobacco and Health, the International Union Against Cancer, the U.S. Food and Drug Administration, and the Addition Research Foundation, have examined the evidence. As long ago as 1969, the House of Commons Standing Committee on Health, Welfare and Social Affairs recommended a total ban on advertising and promotion.

In Australia in 1995, the Senate Community Affairs References Committee recommended that their law be modified to become a total ban on sponsorship. The International Olympic Committee does not allow sponsorship associated with the Olympics. In Quebec, la Coalition québécoise pour le contrôle du tabac, which was unable to testify today, has more than 700 member organizations, including municipalities, hospitals, health organizations, and sport organizations, and they have endorsed the platform calling for a total ban on all forms of promotion, including sponsorship. In 1991, the B.C. Royal Commission on Health Care Costs recommended a total ban on advertising. I could go on and on.

We notice how in the United States the tobacco companies voluntarily agreed to a settlement on litigation that has a near total ban on sponsorship promotion, and November 23, 1998, is the effective date. This is slightly different from 1997, which included a total ban.

If we look at the ads, this is lifestyle advertising. In 1995 the Supreme Court of Canada, in part looking at internal industry documents, in part looking at basic logic, concluded unanimously that a total ban on lifestyle advertising was justified under the Charter. A ban on sponsorship advertising is responsive to the Supreme Court of Canada judgment.

If we allow sponsorship advertising, we allow tobacco companies to get around the ban on advertising on radio and television. Nicotine is a drug. We have prescription drugs, but you cannot have sponsorships. There is no Prozac tennis tournament or Valium arts festival. Nicotine is far more deadly than these other substances, and in terms of promotion regulation, it should be treated accordingly.

Mr. David Sweanor, Senior Legal Counsel, Non-Smokers' Rights Association: I should like to say that, in addition to my work as a lawyer with the Non-Smokers' Rights Association, I have done extensive work with other bodies around the world in areas of tobacco control. I have worked with the World Health Organization, the World Bank, the Pan-American Health Organization, the American Cancer Society, the American Medical Association, and many other groups. I have written sections of the U.S. Surgeon General's Report. I am writing a section on the upcoming Royal College Physicians' Report out of the U.K.

I recently attended a meeting in London, England, on behalf of the health education authority. It was an expert seminar on youth smoking, and it was not until then that, in combination with what I just heard here, I finally figured something out. At that expert seminar, leading scientists and academics from around the world were giving advice to the U.K. government about what it can do about smoking. One of the scientists said that for a long time he was amazed that the tobacco industry and its consultants would keep coming out with these ridiculous arguments, and saying things that were not based on fact and that were scientifically nonsensical. They would say things in a manner that simply left out important things, and it was so easy to demolish them in any debate and in any peer review journal, where their statements would be shown to be foolish.

However, the representatives of the tobacco industry would keep making these arguments and the scientific community wondered at how stupid could they be, knowing they would lose. Then it finally dawned that they were not being stupid. That is exactly what they were wanting to do. As long as they can confuse us, delay us, and engage us in debates about how they have misinterpreted some data, or what they left out or whether they really do have credentials on behalf of their consultants, we miss getting on to the real points. That is exactly what I believe is happening. We must go beyond a lot of that nonsense, and determine what we know and what we can do. In this case, we are looking at one particular piece of legislation, or an amendment to that legislation.

Our position is that the amendment is not a good idea. We are giving additional time to the tobacco industry to be able to sponsor events as a way of promoting tobacco products. Of course, you cannot promote a specific product without generically promoting the category of products.

In the case of sponsorship, we have something that sends a strong message to many people, including young people, that this product cannot be as bad as the scientists in our society are trying to tell people, and trying to tell their own children. You cannot convince children that smoking kills. As the World Health Organization will tell us, 50 per cent of long-term smokers and will be responsible for the deaths of roughly half a billion currently alive on this planet.

This product kills when used exactly as intended to be used, and it is addictive. Kids then see smoking associated with fireworks, racing cars, horse jumping and all sorts of things they believe to be glamorous. They see those posters everywhere, the identification and the association. That gets into issues of informed consent. As a minimum, we must ensure that people are told the truth about behaviours and products.

We have heard from the tobacco industry representatives who know that smoking is bad. Many people know smoking is bad, but that is not the point. The point is this: Do people have enough information to make truly informed decisions? Are our kids armed? Do they know what those risks are? Do they know what to do with them?

Among adults, the tobacco industry tells us that only 10 per cent of people change brands in a year. Forty per cent of smokers try to quit in any given year. What sort of information do they have? What more information can we give them? Can we believe the tobacco industry is more interested in the 10 per cent who are changing brands than in the 40 per cent making serious attempts to quit, or the 66 per cent who say they would like to quit, or the new smokers who are entering the market? We must give them information. If we are to give them information, we must tell them what the true risks, are and what they can do about them.

Knowing the risks does not mean simply knowing that smoking is bad. It is knowing the causes of these diseases.What is the likelihood of getting them? What is your prognosis should you get them? Surveys show that Canadian adults and Canadian kids do not have that sort of information.

Beyond that, we have to know what we can do about it. What are the benefits of quitting? Many people say, "Well, I have smoked for 25 years and I have already done the harm, so there is no sense quitting now." We must tell them what the advantages are, but we have to tell them how they can quit. What will help them achieve what they want to do? We must make sure those products and services are available. That is what it is about -- telling them the truth.

In South Africa, every single package of cigarettes has a toll-free line printed on it for anyone who wants information on quitting smoking. Here, we are looking at the possibility that for a few more years, perhaps longer, the tobacco industry will have the ability to associate its deadly products with all sorts of things that are stimulating and acceptable to our kids and to many smokers. They will not even have to have a health warning on them, nor will they have to give these people accurate information.

The purpose of the Tobacco Act is to promote health among Canadians, not to deceive Canadians. As an absolute minimum, we should ensure that, if there is to be any continued use of sponsored activities as a way of advertising tobacco products, those messages, signs and associations must come with some accurate statement telling the truth about the product.

We do not have any guarantee that that will happen. The government has the ability under section 24 of the act to require this to happen. However, we have seen no statement to indicate that they will do so. I would say that, as an absolute minimum, this committee must insist that the government require detailed health information on any sign that has any association with these events. Hopefully the government will go beyond that, and actually write in a requirement for detailed health information, thereby moving closer to that concept of informed consent.

We must tell the kids the truth so that when they see the racing cars, the balloon festivals and the fireworks, they also see something about lung cancer being fatal, and that their parents are seeing what they can do to quit smoking. Two-thirds of parents who smoke do not want to smoke. Two-thirds of the people that kids think look cool do not want to smoke. This is a way of giving them information.

As a minimum, tell the government that if we are dealing with health legislation, it is simply not on to allow the tobacco industry to deceive people and not tell them the truth.

[Translation]

Mr. Denis Côté, Coordinator, Info-tabac: Mr. Chairman, Info-tabac is a non-profit organization based in Montreal. Perhaps one-third of all events sponsored by the tobacco industry in Canada as a whole take place in our federal riding. Sponsorships are highly concentrated in our area, and this is an issue Info-tabac has monitored very closely. One of our organization's roles is to provide the media with information, and maintain good relationships with them on smoking. There is a major problem with French-speaking media in Quebec, because they are biased in favour of tobacco-industry sponsorships. The sooner our society can work through this problem, the sooner we will have media coverage that truly reflects the massive damage and fatalities related to smoking. In Canada, some 125 Canadians die of smoking-related disease every day. But we never see those statistics in the media.

Info-tabac is a member of the Coalition québécoise pour le contrôle du tabac. Unfortunately, our director, Mr. Gauvin, was unable to be here because of the change in schedule. Our organization has 700 members, who are all opposed to any form of tobacco advertising and sponsorship. We are also members of the Conseil québécois sur le tabac et la santé, which has been opposed to tobacco advertising, including sponsorships, since 1976. We have not had very much success, however. In spite of the legislation, there is a vast amount of tobacco advertising and sponsorship. In Quebec, it is dreadful.

We believe that C-42 should be set aside completely and allowed to die on the Order Paper, so that C-71 could come into force retroactively. In any case, its provisions prohibiting advertising through sponsorships were to have come into force on October 1.

Stage two, as provided for by Health Canada, was to eliminate 70 per cent to 80 per cent of all tobacco advertising overnight. This provision was to have come into force on October 1, not in two years.

The general manager of the Alliance for Sponsorship Freedom testified before the House of Commons Standing Committee on Health. Their legal counsel, Mr. Beck, said that a two-year deadline was unreasonable. Three times in his brief -- I have checked on the Internet -- he said that it just could not be done within that timeframe. This would mean that sponsored events, just like the tobacco industry, find the October 2000 stage completely unacceptable. On their part, there is no good faith to reduce sponsorships. Their objective is to put the problem off until the year 2000 and do some lobbying then, and put even more pressure on to have that stage extended.

We find it very unfortunate that Health Canada refuses to reduce tobacco advertising at once, and has in fact been refusing to do so since 1987. Advertising has not been reduced. It has simply been changed into sponsorship advertising, which is even more effective. It is the most seductive kind of lifestyle advertising there is. There is no mechanism in the bill designed to prevent advertising abuses in the next two years. One example would be announcing an event two months, six months or one year after the event took place. In Quebec, we still see advertising for the Players Grand Prix, which took place in June. There is nothing in the bill that prohibits advertising abuse. Another form of abuse would be to have an event taking place in British Columbia announced in Prince Edward Island, for example, so even if the event attracts only 5,000 people in British Columbia, the tobacco company announces it coast to coast, as much as it wants to.

There is also no proportionality between the importance of the event and the advertising. For example, this year there is a snowmobile race in Quebec. The event was sponsored to the tune of $200,000, and the cigarette company put about $2 million into advertising, attracting maybe 100 extra people to the event.

The bill as it stands contains no checks and balances to prevent abuse. In its brief for the House of Commons Standing Committee on Health, Info-tabac suggested some checks and balances to reduce advertising abuse in the next two years. We asked that only event organizers be allowed to advertize, not tobacco companies. We also wanted to limit event promotion to no more than two months before and no more than two weeks after the event. We wanted its advertising budget not to exceed any income from sources other than sponsorship.

I have 20 years' experience in publicity and sponsorships. I know this matter very well. I live in a riding with a lot of sponsorships and I have followed this thing very closely.

Senator Lavoie-Roux: What riding is that?

Mr. Côté: Laurier--Sainte-Marie, Gilles Duceppe's riding. I am available to answer your questions.

[English]

Senator Kenny: I very much appreciate having you here as witnesses. I have several questions that I should like to ask.

First, will this bill bring a complete ban on advertising if introduced as written?

Mr. Cunningham: The Tobacco Act, as amended, even after October 1, 2003, will not have a total ban on advertising. It will still permit informational and brand preference advertising and direct advertising that is not appealing to youth and is not in their lifestyle.

Senator Kenny: Second, does it cover corporate names or near names?

Mr. Cunningham: With respect to sponsorships, yes, it would cover not only "Player's Racing," but also "Player's Limited Racing."

Senator Kenny: Third, how much does the federal government collect each year in tobacco excise taxes?

Mr. Cunningham: More than $2 billion per year.

Senator Kenny: Did you say $2.3 billion?

Mr. Cunningham: That is approximately correct. If you include the GST on cigarettes, however, it increases.

Senator Kenny: Approximately the same amount is collected provincially?

Mr. Cunningham: Yes, approximately.

Senator Kenny: How much has the federal government collected since it brought in its surtax specifically to combat youth smoking?

Mr. Cunningham: The profit surtax implemented February 8, 1994, has collected $60 to $70 million per year. We must add up the years to find out the exact amount.

Senator Kenny: Of that money, how much has the federal government spent to educate young people regarding smoking?

Mr. Cunningham: Health Canada's current tobacco control budget is $20 million per year. Initially, it said that it would spend all the money raised from the corporate surtax -- in fact, the Prime Minister announced this in the House of Commons -- on its anti-smoking campaign. That $60 million per year has not been sustained; it was cut back. Of the $20 million currently spent, about $10 million is allocated for the aspects of the program apart from research and enforcement.

Senator Kenny: In fiscal 1997-98, what percentage of the funds for education did the federal government spend?

Mr. Cunningham: I am not able to be of assistance there.

Senator Kenny: Does the figure $200,000 ring a bell?

Mr. Cunningham: I have seen a response to a question on the Order Paper in the House of Commons that was something to that effect.

Senator Kenny: Provided by which department?

Mr. Cunningham: The Department of Health.

Senator Kenny: Did Proposition 99 reduce overall smoking in the state of California by 36 per cent over three years?

Mr. Sweanor: I am also on the evaluation committee for the state of California. Yes, that is approximately correct. It was a very significant decline.

Senator Kenny: It was reduced by 36 per cent over the first three years that it was introduced.

Is the rate of youth smoking in California currently 12 per cent?

Mr. Sweanor: That is correct, based on the best figures available to the state of California after some extensive surveying.

Senator Kenny: What is the rate of youth smoking in Canada currently?

Mr. Sweanor: It is now somewhere around 30 per cent.

Senator Kenny: Could you tell me how much they spend per capita in California to educate young people on youth smoking?

Mr. Sweanor: The total budget in California for the tobacco control program is around US$4 per capita, which is about CAN$6 per capita.

Senator Kenny: Can you compare that to how much we spend for education on youth smoking in Canada?

Mr. Sweanor: We start by looking at the fact that we have 30 million people in this country and spending $200,000. It works out to considerably less than that. I am bad with small fractions.

Senator Kenny: Would someone give me the number of cents, please?

Dr. Esdaile: The government has not debated the fact that it spends CAN$0.33 against the US$4.

Mr. Sweanor: This is for the entire tobacco program, rather than just for the education component thereof.

Senator Kenny: Could you give us your views on the effectiveness of the federal government's tobacco reduction strategy to date?

Mr. Sweanor: It is abysmal. At the beginning of the 1980s, tobacco consumption in Canada among 15 year olds to 19 year olds was among the highest in the world. Approximately 42 per cent of 15 year olds to 19 year olds were smoking every day. By 1991, that was down to 16 per cent. There is an indication that it continued to fall, although our government was not surveying it.

When the government reduced tobacco taxes, tobacco pricing had more profound effect on youth consumption than anything else we had tried to date did. We had a massive reversal in that, which coincided with the government's promise to have the biggest tobacco control program that anyone had ever seen. The money disappeared and youth consumption rose. It continues to rise.

Smoking rates in Canada and total consumption in Canada are quite different from what Mr. Parker said. We have seen lots of evidence in this country and other countries that this is something that we can control. The World Bank has estimated that money spent on tobacco control is as cost-effective as immunization, which is as cost-effective as you can get. We are not spending that money, and we are seeing the results of that. It is particularly frustrating knowing that there are many things that we can do to have an impact on it.

Dr. Esdaile: I would agree. Over the last 30 years, the federal government has not done anything significant and useful in terms of decreasing how much the next generation will smoke. There has been a lot of bravado, a lot of words, and a lot of fronting and saying that we have a great new bill. However, often that "great new bill" is weakened and has loopholes. If you stop advertising, you have sponsorship.

I have a 14-year-old and a 12-year-old. If Canadian governments continue on in this vein, it is quite probable that my children will be sitting at this table looking at the same numbers, and yet another generation of Canadians will have fallen to tobacco. I am a family physician. I worked for 20 years in the emergency department. They are following the same road we have already been down, and the shame is that we will permit another generation to take this up. I do not think that the federal government has done anything strong and in force that makes a difference.

[Translation]

Senator Joyal: Mr. Côté, is it not true that some things in this bill were requested by cultural and sports organizations that wanted to provide for a transitional period, if you will, so as to maintain some economic activity in the riding of the member whose name you just mentioned?

Mr. Côté: Yes, sponsorship organizations, especially in Quebec, are very spoiled by the tobacco industry. It is an excellent kind of lifestyle publicity. They associate interesting events and personalities with different brands of cigarettes and, indirectly, with smoking. They get a lot of money. The cigarette companies are very nice and want to renew sponsorships very much in advance. It is far more agreeable for a sponsored organization to deal with a cigarette company than with the government whose subsidies are non-recurring and difficult to obtain. You can be sure that as long as they are not being collectively blamed by opinion-makers, sponsorship organizations will take tobacco money. And they are playing a bit of a blackmail game with the government. They say: if you find it disturbing to have us in the publicity bed of organizations that deal in cancer, then give us as much money as the cigarette companies. We want recurring funds; we want so many million dollars a year.

The answer to your question is yes, the organizations want to keep on getting the money. It is up to the government to tackle the tobacco problem as a whole and make decisions. To my knowledge, the government had already made those decisions in 1987. In 1988 legislation was passed almost unanimously prohibiting sponsorships. The federal government examined the problem again, two years ago. All parties, except the Bloc Québécois, passed legislation prohibiting most sponsorship publicity, retroactive to last October 1. It is up to the government, when faced with the tobacco problem and the damage it does to the population, to make the political decisions and, to my knowledge, the government has already done that once.

Senator Joyal: Does the Quebec legislation not have similar provisions to ensure a transition period until the disappearance of sponsorships for sport and cultural events?

Mr. Côté: The Quebec legislation comes with a compensatory fund which is already available. If organizations lose their sponsorship this fall or in the spring, they can get compensation from the Quebec government. Quebec is ahead of the game on this.

Besides, legislation was passed before the Canadian legislation. There is a replacement mechanism that takes into account the cultural impact in the media and the popularity of the events.

[English]

Dr. Esdaile: The replacement funding was available under Quebec law. The industry knows exactly what they have done. They have smokers addicted to nicotine, and cultural and sports industries are addicted to their money. The latter have become entirely dependent on that money, and one cannot blame them. There is a large fund of easy money to get; all they have to do is associate with that name.

Are you aware that Bill S-13 in its first planning included replacement funding? It is my understanding that, at the request of the Health Minister or the Health Department, that was removed. They have made it that much more difficult to take these people off that funding. I would personally agree that such a provision would have made it easier, but these people are never going to say, no, we are not going to touch the money. They are dependent on it and unless you say, as to a child, "Do not smoke or drink" they will keep taking that money.

Senator Joyal: Can we stay on the issue of addictiveness? I raised the question with the previous witnesses, and I believe you were in the room at that time. It makes sense to me that, if something is dangerous, you should regulate the dangerous components of that product. I believe, if I understood the answer well, that the government has resisted doing that. Health Canada did some inconclusive studies, and then they let it go.

You have said that Prozac, Valium and other products are drugs. However, I do not believe that the Health Department classifies tobacco as a drug. By your reasoning, we should move tobacco to the drug list. In that context, we should take a much stiffer approach to the information concerning the product, the use of the product, and the amount of product available than we are doing now.

I have some difficulty reconciling your comments to the effect that it is a drug, with the fact that the Health Department says it is not a drug. How do you monitor that situation whereby we are told by all of you, and I share those conclusions, that this is a very dangerous product? Everyone seems to resist addressing the real problem, however -- that this is a drug. Let us deal with it as a drug.

Dr. Esdaile: Speaking as a physician, there is no question that this is a drug. When Mr. Beatty was minister of health many years ago, he requested a special commission to establish that tobacco was indeed an addictive drug. There was no question about it -- that was their independent conclusion.

Before you brought up the last speaker, I wanted to jump in, because a study was quoted that, according to Mr. Parker, showed no nicotine manipulation. That study showed that the industry did not add nicotine to the cigarettes, but it also showed that the industry today chooses different parts of the tobacco plant. This allows them to use parts of the plant that have different levels of nicotine. Directly or indirectly, they do manipulate nicotine, monitoring it hourly on the production line. It is a very important part of their product.

Another very difficult issue concerns how to control the nicotine in the cigarette. Mr. Parker said they were trying to bring the level down. The industry is well aware that most smokers have nicotine needs, however, so it really does not matter what it says on the package. Smokers will get what they need out of cigarettes.

It is possible, although I have not yet done the statistics with the new B.C. numbers on the contents of smoke, that those who smoke light cigarettes may be getting more tar and toxic elements because they are smoking more to maintain their nicotine levels. We know people want to maintain their nicotine. In terms of the political aspect, tobacco has always had this special case, perhaps historically, and certainly in the U.S. it is easy to say that it is paid for.

At least 30 years ago it was recommended that tobacco be included in the Hazardous Products Act. There has always been resistance to that -- from the industry, of course, but also from Parliament. Once it is there, it would be easy to pass regulations, and to control access to it. You could enforce the regulations, as is done with all hazardous substances. As it happens, it is probably more lethal than the vast majority of products under the Hazardous Products Act, but we let children see it and buy it at the corner store.

The Chairman: Senator Kenny has a supplementary here.

Senator Kenny: It is not a supplementary. It is to correct the record by explaining that Health Canada did not request the transition funding to be removed from the bill. The transition funding was removed by a decision of the sponsors. I did not want to leave the impression that they had forced it.

Senator Joyal: Why are you not asking us to bring tobacco under the hazardous product list? Why are we not addressing the root of the problem? I am surprised that, when you have an opportunity to talk to the legislators on both houses for a short period of time, you are not pleading more strongly for that. Am I confused about what we should be doing as the next step?

The Chairman: This may be a slightly unfair question. After all, this is not part of the bill that is before us, and these people came to us prepared to comment on the bill that is before us.

Mr. Sweanor: The second point I was going to make is that that is exactly why we need to get beyond some of the nonsense arguments, and why the tobacco industry wants to delay us when we are looking at some of these minor moves.

The product is the key thing to go after. Every other consumer product in this country is regulated. You are not allowed to put a product on the market that has any ingredient that would be harmful to human beings when used exactly as intended -- with the exception of tobacco.

Tobacco is also a particular problem because nicotine is the addictive agent. That is why millions of people smoke, although the majority of them wish that they did not. Nicotine itself, at the dosage level smokers need, is not what is causing the vast majority of the harm. The delivery vehicle is causing the harm.

Any drug you seek to get into the body by sucking smoke into the lungs has a very high probability of killing you. Tobacco is a very dirty delivery vehicle for nicotine. The situation we have in this country is that, in effect, our regulatory world is upside down. The cleanest forms of nicotine are the most regulated and, usually, simply banned. The dirtiest form of nicotine delivery, tobacco products, is given a wide open market.

We have created a nicotine maintenance monopoly. I have co-authored an article in the Journal of the American Medical Association on this subject. We have said to anyone who is dependent on nicotine -- anyone who needs or wants that drug -- that the only way you are legally allowed to get it is from a product that has a 50 per cent chance of killing you. It would be the same as saying to any IV drug users, the only needle you are allowed to use is one that is HIV and hepatitis contaminated.

We do not need to have that situation. If we took this product and started regulating it, and if we started offering consumers a way to get the drug they need, with a much reduced chance of them dying, and with the elimination of the harm to the people around them, we would start to be making sense. We are not doing that, and that is why many people are involuntarily using a product that has a 50 per cent mortality rate for them, and that harms the health of the people around them.

Governments must start dealing with this as a drug. They must start looking at it in relation to all the forms of nicotine and the different ways of delivering the drug. We must look at what we know about who can quit, how they can quit; and how we can help them quit. For those people who cannot quit, we should look at what we can give them to reduce this death toll.

When we change the way we look at this problem, that is when we will start making sense. That is exactly where we need to move, and that is why the tobacco industry likes to come in and make the same silly arguments that they have been making for 30 years. They want to keep us from moving on to those topics. They will lose when we start looking at drugs and drug delivery.

The Chairman: That was a powerful statement, Mr. Sweanor.

[Translation]

Senator Lavoie-Roux: I see a basic contradiction between this bill and Bill C-71 that was passed some years ago. If this bill passes as is, I get the impression we will have just contradicted the other legislation in a way. It is a comment and you do not have to agree with me on it.

During the examination of Bill C-71, the cultural and sports organizations raised many objections alleging that they would not find sponsors anymore to fund their organizations. In your experience, is that as true as they said? We saw that Air Canada picked up the sponsorship of the Formula 1 race right away and there was not a lot of noise around that. There are probably other events that were picked up also. Is finding another sponsor such an insurmountable problem?

Mr. Côté: According to the organizations that know the business, the bill you have in front of you is a great step backwards. In October 1998, there was a gain that should be on the table at this point, but it was pushed back two years. In our minds, we have been defeated by the tobacco industry. We hope that it will not go through.

As for the relationship between the different sponsors and the tobacco industry, the sponsored organizations are making a lot of noise because they are funded by the tobacco industry which is made up of public relations specialists whose job it is to make noise to keep the tobacco sponsorships alive.

Info-tabac did a study of cultural events in the Montreal area over a year and we were looking for performing arts sponsored by du Maurier. There were hardly any. According to Statistics Canada, subsidies in the field of culture add up to some $4 billion for Canada and the du Maurier Council on the Arts gives $1.5 million. It is one four-thousandths of that.

A lot of noise is generated around all that because the cigarette companies always puff it up. The du Maurier Arts Council dedicates $1.5 million and gets maybe 10 million dollars' worth of publicity. People think it is a lot of money. The organizations getting the money say that they want compensation.

Senator Lavoie-Roux: So it is not an insurmountable obstacle for organizations funded by tobacco companies.

Mr. Côté: No. In Quebec, we drew up a portrait of events. The cigarette companies say that they donate $30 million to those organizations. We found that they really get $9 million. Of all those events, the most problematic is the du Maurier tennis tournament. Almost all the other events could find sponsors in the coming months or could overcome their funding problems some other way.

Mr. Cunningham: In those countries where publicity provided by a tobacco company sponsorship was prohibited, the events sponsored by such companies still kept on going despite the prohibition. Moreover, in Canada, anytime there was a step taken to prohibit publicity over the radio or tobacco sales in drugstores, people were heard to say that they would have to close the doors of the drugstores, but since the legislation came in, we've observed that nothing has actually changed.

[English]

Senator Bryden: Were any of you ever smokers? Did you inhale? I am not asking that to be mischievous; that is not my intention. I ask it because, in my experience over the last number of years, we would sit in a room like this -- 15 years ago, 20 years ago -- and I would have an ashtray. It would be the exception for a person to not smoke. Now, the reverse is the case almost everywhere you go.

Tobacco farmers are going out of business in southern Ontario, in New Brunswick, and in many places because they cannot sell their product. Maybe they should be growing hemp -- industrial hemp. Those are just some anecdotal facts.

Over the last 20 years, has there been a reduction in the number of Canadians that smoke?

Mr. Cunningham: Yes.

Senator Bryden: Do have you any figures?

Mr. Cunningham: I can provide you with a full graph for that period of time. During the first five years that the Tobacco Products Control Act was in force -- between 1988 and 1993 -- the per capita consumption dropped from 2,869 per year to 2,183. These figures are based on industry estimates of smoking.

Dr. Esdaile: If you consider the overall outlook, two things are happening. First, we are all getting older. As we get older, a number of us fall out. We are not there any more. Many of those are from tobacco, so those ones do not count any more because they passed away.

At the same time, as we get closer to that final day, we become more conscious of the risk of the things that we do. Therefore, we are much more inclined and under greater pressure to stop smoking. Then you must ask who is smoking.

Rob Parker was correct. I disagree that smoking is only found in the lower socio-economic segments of society. If you go and stand outside the emergency room at the Ottawa Civic Hospital, you will see the vast majority of very well-educated nurses going for a smoke break with their coffee.

One of them stopped working last year because of her lung cancer. It is still very much a poor person's thing, a blue-collar thing -- the industry knows this. It is a French-Canadian thing. More money is being spent on advertising in Quebec than in any other province. Smoking is a First Nations issue. I believe that 70 per cent of First Nations people smoke.

Adult men are smoking a little less, although it is not clear about women. However, children are taking up smoking at same horrendous rate. That is really the frightening issue, and hopefully we are dealing with it now.

Senator Bryden: You are on the side of angels, and I am also one of them.

Dr. Esdaile: I used to smoke.

Senator Bryden: Most people who smoke learned to do so between the ages of 10 and 20. However, because of lifestyle changes, I guess, there has been a dramatic reduction in the number of adults in Canada who smoke in comparison to what it was 20 years ago.

Mr. Sweanor: Again, non-smoking is most pronounced among the people with the best information and in the higher socio-economic groups. You do not see the ashtrays amongst this group. If you go into a bar in Vanier, you will see higher smoking rates.

Senator Bryden: I have one question because of confusion, and that is it. You were in the room when the tobacco people were here. They are indicating that the California experience showed a 25 per cent increase in consumption after the program. You are saying that there is a 36 per cent decrease. Are you both talking about the same people, or is someone lying? What is happening here?

Mr. Sweanor: As the only non-American who is on the evaluation committee for the State of California's tobacco control program, I believe the data from the State of California. Terrific scientists from some of the best universities have looked at the data. Senator Kenny is right about the fact that there has been a very significant reduction in overall consumption, something we have seen replicated in Massachusetts.

It is more difficult to deal with the situation when it comes to children, including in terms of measurement. When you are trying to figure out whether or not kids are smoking, you will have greater inaccuracies. We all know what we would say to a telephone survey if we were 13 years old. There are always inaccuracies there, and it is hard to tell how much they are actually smoking. Is it that they are experimenting and extending that out long enough that they do not get addicted before they mature? In general, it is seen as a very successful program, and one that many places are trying to replicate.

Anyone looking at it hears all the arguments that the tobacco industry and its consultants try to throw them out. I do not think there is any question but that it is successful. Is it as successful as it could be? No, it is not. The tobacco industry has thrown a tremendous amount of money into California to promote tobacco.

Looking at the industry as a disease vector, all disease vectors mutate to try to continue. When they see a challenge, they change. They do what they can to try to counter that.

We need to recognize that the industry is just an economic entity, and in terms of pure value to the industry, kids are worth more to them than any of us are, because there is a much longer flow of sales and profits.

Senator Grafstein: When I read section 24, I think about two lifestyle media that are not covered directly, but which may be covered with a fair reading of the legislation -- movies and magazines.

I go back to Casablanca, which is one of my all-time favorite movies. It was there that I learned how to light two cigarettes at the same time in anticipation of a wonderful evening out. Humphrey Bogart was certainly one of the great icons when it comes to the movies. If you bring it forward to today, you still see in the movies that smoking <#0107> of both cigarettes and cigars -- is a lifestyle thing.

Does the scope of this legislation inhibit, if not proscribe, lifestyle advertising through the content of television or magazines?

Mr. Cunningham: Other provisions in the proposed legislation would prohibit a company from paying for placement of cigarettes or other tobacco products in movies.

Senator Grafstein: That is how it is proposed to amend section 24 of the Tobacco Act.

Mr. Cunningham: No, it is in other sections not covered by that section.

Senator Grafstein: Section 24 is proposed to be amended to say:

No person may display a tobacco product-related brand element or the name of a tobacco manufacturer in a promotion that is used, directly or indirectly, in the sponsorship...

Then it talks about the cultural element. You can read this provision in a different way.

The reason I raise this is not as an episodic change here from the structure of the bill. However, the provincial and federal government heavily subsidize this through direct grants, loans and credits, to movies and television in this country.

I know when I go to a movie theatre today that 80 per cent of the theatre is filled with children 12 and up. You are sitting there feeling like you are really old when you want to see an action movie, and there is always smoking in those action movies.

Since you have been proactive in this legislation, does this bill covered this, or should it?

Mr. Cunningham: This bill does not address that issue. However, other parts of the Tobacco Act do address it.

Senator Grafstein: I am dealing with Senator Joyal's question about the hypocrisy of saying that this is a dangerous substance, yet on the other hand having Canadian taxpayers make a direct investment in the movies and television that promote a certain lifestyle that relates to tobacco. Is that not a deep inconsistency in terms of government policy? Why is that not addressed in this bill?

Mr. Sweanor: This is a bigger problem, in that most of the movies our kids are seeing are not Canadian movies -- they are Hollywood movies. There is direct evidence that the tobacco industry has paid large sums of money to have heroes smoking in those movies. That is why it happens.

There are various ways of dealing with that. Some of them are beyond the power of Canada's national government, but can be dealt with by the World Health Organization, which can try to get an international framework convention on tobacco to prevent this from happening.

We can also do the best we can here to inoculate our kids against those messages. That gets into things such as giving them truthful information on whatever messages they will be seeing here, in order to try to protect them.

Titanic and other movies will be out there for a long time. Children will continue to see them, and they will continue to see smoking being glamorized. We cannot redo those movies. We need to figure out what information we give to our kids. That is within our power.

Senator Grafstein: I find it more curious, having talked about the hypocrisy of the Canadian government, that the State of California has not addressed this issue, because it is the home of Hollywood movies.

Mr. Cunningham: In the United States, this practice will come to an end as part of the $206 billion litigation settlement. There is a provision in it that will be enacted into a consent decree in court, by which they will not be able to pay for placement any more.

Senator Mahovlich: About Humphrey Bogart and his movies, we do not speak of the way he died, though. Lauren Bacall described it as horrific. The suffering that man endured for the last two or three months of his life is something we do not mention.

Earlier, someone mentioned that if you watch your father or your mother smoke, then you will probably smoke. That did not happen to me. My father developed a cough, and finally he just took a package of cigarettes and heaved them out the door. That was the end of his smoking, but the cough stayed with him for years. I said to myself that I will be damned if I am going to cough all my life, and I did not start smoking. My uncle also smoked, in the early days when the nicotine was so strong that the fingers were black. He died of a heart attack at the age of about 52. That was another reason I did not smoke.

Does anyone know the amount of money that the cigarette companies put into advertising in Canada? Do we have that?

Mr. Cunningham: They spend approximately $150 million per year, including $60 million for sponsorship, $60 million for prominent space in retail outlets, and then about $30 million for sales representatives, market research and some direct advertising, which is now back in the sponsorship category.

During a year, the net change in market share is only about 1 per cent or 2 per cent. That is about $10 million profit for 1 per cent share, or paying $150 million competing for $10 million. They say they are only competing for market share. Their argument makes no economic or financial sense.

Senator Mahovlich: In order to put the government on an even scale, they would have to spend $150 million to advertise against smoking?

Mr. Cunningham: That is correct.

Senator Mahovlich: That is not what Mr. Parker said.

The Chairman: I thank you very much for appearing before us, Mr. Cunningham.

The committee adjourned.