Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 55 - Evidence
OTTAWA, Monday, April 7, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-71, to regulate the manufacture, sale, labelling and promotion of tobacco products, to make consequential amendments to another Act and to repeal certain Acts, met this day at 12:00 p.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: Good afternoon. Today we will hear from Professor Wayne MacKay who is normally a professor at Dalhousie University Law School but is presently on leave to serve with the Human Rights Commission. He has asked to make a presentation on Bill C-71.
Mr. Wayne MacKay, Executive Director, Nova Scotia Human Rights Commission: Honourable senators, I have read through some, although not all, of the transcripts and evidence that you have heard on this matter. I will try not to repeat what others have said. As you have directed, I will try to make myself available for questions. You are fairly far along in the process and I presume you have specific questions.
I have prepared a hand-written brief. I have quoted various portions from court decisions, particularly the RJR-Macdonald decision, which I would hand out rather than bothering to read it all in.
On page 2 of my brief, I address primarily the limitation on commercial expression. I am prepared to answer questions within the limits of my competence about the other constitutional questions, but I was actually asked to deal with the speech and limitations question, so that is the focus of my presentation. Within the limits of my expertise, I will answer questions on other matters.
As an initial point, it is clear in the evidence before you that this bill is directed at the question of commercial expression. I say that assuming you have decided that the division of powers question is answered positively in relation to the federal government, that this does fall within the criminal law power, especially given that two judges in the RJR-Macdonald case so concluded. I see no reason to change that conclusion.
It is also clear that there is a violation of commercial freedom of expression, that there is a violation of section 2(b) and that, therefore, the action comes to reasonable limits in section 1. Of course, that is what others have been telling you as well.
I will set the stage for that in my second point on the comparative roles of legislatures and courts in dealing with section 1. Section 1 is the focus in the Charter which tries to draw the line between what courts should do and what legislators should do in the realm of social policy.
To that end, I have provided a quote at page 3 of my brief by Mr. Justice Sopinka in the majority decision in Butler concerning obscenity. Of course, we are not here to talk about obscenity but rather about the tobacco legislation. The point in common, which is emphasized in this quote on page 3, is that, just as in the case of obscenity, there is here no conclusive scientific evidence of cause and effect.
That is an interesting comparison with the Butler case which concerns the impact of obscene or pornographic depictions on the degradation of women or on crime. The court concluded they did not need scientific proof.
Mr. Justice Sopinka in referring to Irwin Toy states:
In the instant case, the Court is called upon to assess competing social science evidence respecting the appropriate means for addressing the problem of children's advertising. The question is whether the government had a reasonable basis, on the evidence tendered, for concluding that the ban on all advertising directed at children impaired freedom of expression as little as possible given the government's pressing and substantial objective.
He goes on to say:
...the Court also recognized that government was afforded a margin of appreciation to form legitimate objectives based on somewhat inconclusive social science evidence.
He goes on to apply that in the pornography context of Butler.
That is an important starting point to think about the constitutionality of this bill. That quote, supported by the majority of the Supreme Court of Canada, states that, particularly where there is an important policy question with inconclusive evidence, they will be even more deferential to the legislators in striking the balance.
That same theme is played out to some extent by all the judges in RJR-Macdonald, although particularly by La Forest in dissent.
In reading through your transcripts, I noted that Professor Schabas, from the University of Quebec at Montreal, stated that there seems to be two lines of cases in section 1. One line of cases protects vulnerable groups such as women and children in the Butler pornography case, the Prostitution Reference in terms of prostitutes, and the Irwin Toy case in terms of children and, in his view now, Bill C-71. It is an important point that Professor Schabas sees the legislation, and I would be inclined to agree, as being social policy legislation designed to protect a particular group -- in this case youth-- from a particular kind of advertising. He sees that even more clearly in Bill C-71 than in the legislation struck down in the RJR-Macdonald case.
The Irwin Toy quote from Butler is particularly appropriate as well because there, too, the court was concerned with the impact of advertising on children.
That is the right test to apply in this case being the broad margin of appreciation. To put it another way, it is deferring to the legislature in the face of conflicting scientific evidence. That gets me down to point 3.
Senator Gigantès: You referred to "social scientific" evidence?
Mr. MacKay: I referred to social science evidence; that is correct.
Senator Gigantès: That is not scientific.
Mr. MacKay: That is a good point. The fact that social science is not scientific is part of the problem.
Senator Gigantès: Absolutely. I am a social scientist.
Mr. MacKay: The main case I wanted to reference is the RJR-Macdonald case. Bill C-71 affords us the luxury of having a specific Supreme Court of Canada decision on a similar, though not identical, piece of legislation. Often when assessing whether legislation is constitutional, we are simply speculating. We are still speculating, but the key anchor for that speculation is the RJR-Macdonald case.
I will not take you through all these quotes, but I will highlight them. Madam Justice McLachlin wrote for the majority in that case. I should clarify that this was the earlier case where they struck down the tobacco legislation which led to redrafting and Bill C-71. This is obviously something that the drafters examined. It is a critical piece of evidence in your assessment of whether this bill is constitutional.
RJR-Macdonald was a close case, even on the prior legislation, which in simple terms can be characterized as a total ban, rather than a partial ban. We can debate later whether it was partial or total, but, certainly, on its face, the present bill is more of a partial ban than that which was struck down in the RJR-Macdonald case.
Madam Justice McLachlin wrote for the majority. There was some debate between La Forest in dissent and McLachlin on the standard to be applied. They agreed that it was clearly criminal law and that there was clearly a violation of commercial speech, but the question was what standard to apply.
I wanted to set out the McLachlin quote first. She took the view, in striking down that particular legislation, that the standard had not been met; that the government had not met the standard of proof required, in her view, to justify limiting commercial expression.
I will not go into the long quote there, but she makes a significant point of saying that even when you have conflicting social science evidence and you defer, you cannot take it too far. In her view, La Forest in dissent took deference too far.
On that critical issue, it was a 5-4 split decision. That is very close. When I come to my bottom line that this legislation is constitutionally valid, it is an important point that you need not move many judges in order to save this legislation under section 1. Four of them would have saved it even under the previous circumstances. That is an important point to consider.
On page 5 of my notes, I refer to Mr. Justice Iacobucci who concurs with McLachlin as does Chief Justice Lamer for the majority of five. Iacobucci sets out some advice to Parliament, as I call it.
He not only suggests striking down the legislation, but suggests suspending it and gives some general advice to Parliament as to how they might restructure this legislation and apply it as valid constitutional legislation. The remedy he is suggesting is to directly invite Parliament to do what they have done, which is to redraft the legislation and come back. However, they did not adopt his remedy. They actually adopted McLachlin's remedy which was to strike it down. He suggested a one-year suspension to allow Parliament to redraft the legislation and come back.
He was also willing to see redrafted legislation and to give some broad guidance as to what should happen, one suggestion being that it should be a partial rather than a total ban, and another being that the warnings and strictures should be more clearly set out. Anyway, I wanted to set out for you what his guidance was in that case.
Then we come, on page 6, to La Forest's dissenting view with three other judges joining him. He makes a much stronger statement as far as deference on matters of social policy.
It is interesting that this debate gets into the comparative roles of courts and Parliament. When you have conflicting social science evidence, what is the role of the court in second-guessing Parliament's view of what is needed? That is the real nature of the debate in this case and presumably will be so in any future challenges.
La Forest comes down clearly on the side of saying that where we have conflicting social science evidence and where we have important social policy legislation, that the court should be differential and give wide margins of deference to the legislators.
An interesting question occurred to me as an aside when I was preparing for this. I presume the Senate's position falls obviously with Parliament generally, although the distinctions between the roles of Parliament and the courts are often based on the fact that Parliament is elected. So perhaps the Senate falls somewhere between the court and the House of Commons in its role, but I will leave that for you.
At the top of page 7 is a very strong statement from Justice La Forest which relates to some of the questions that I read in the transcripts. He stated:
I begin with what I consider to be a powerful common sense observation. Simply put, it is difficult to believe that Canadian tobacco companies would spend over 75 million dollars every year on advertising if they did not know that advertising increases the consumption of their product. In response to this observation, the appellants insist that their advertising is directed solely toward preserving and expanding brand loyalty among smokers, and not toward expanding the tobacco market by inducing non-smokers to start. In my view, the appellants' claim is untenable for two principal reasons. First, brand loyalty alone will not, and logically cannot, maintain the profit levels of these companies if the overall number of smokers declines. A proportionate piece of a smaller pie is still a smaller piece. Second, even if this Court were to accept the appellants' brand loyalty argument, the appellants have not adequately addressed the further problem that even commercials targeted solely at brand loyalty may also serve as inducements for smokers not to quit.
I quote that partly because it goes to the heart of your debate on Bill C-71, as well as the earlier legislation. There is this argument that, really, what is happening here is not connected, that they are not trying to increase the market, they are not trying to convince young people to smoke, so the whole legislation is not connected to the objective.
Certainly La Forest was not convinced on that, and he makes the point very strongly. He goes on in the next part to say, even going beyond this common sense inference, their own market studies suggest that there is a link between advertising and consumption.
I know there have been great debates in your hearings about whether there are such market studies and to whom they are targeted, and I thought it might be useful to quote what Justice La Forest had to say on that. Presumably the same market studies that were used in the RJR-Macdonald case would still apply to any case under Bill C-71.
On page 8, Justice La Forest goes on to talk about the issue of minimal impairment. His main point is that the legislation does not have to be perfect. In order to pass the section 1 test, the legislation has to be minimally impairing but it need not be the least intrusive or a perfect system. That is, of course, consistent with his view about deference to Parliament.
On the bottom of page 8, he emphasises that, in this case, we are looking at commercial speech and promotion of values that are far from the core values of free expression. He talks about other cases which promoted political speech. I will read the first part of that:
This type of expression serves to promote an activity which, in contrast to dentistry, is inherently dangerous and has no redeeming public health value.
He refers to an earlier case, Rocket, which limited advertising of dentists and so on. Here he says it is very different because there is no redeeming health value:
Indeed, the contrast with Rocket could not be more striking. Making an informed choice about dentists serves to promote health by allowing patients to seek out the best care; making an informed choice about tobacco simply permits consumers to choose between equally dangerous products.
Justice La Forest is direct in taking on the arguments of the various tobacco companies, many of which were repeated in what I read of the evidence before you.
My conclusion, looking at that and looking at Bill C-71, is that this legislation is constitutional. When I go through the bill, I note that, in clause 4, the purpose is even more clearly stated as focused on youth. The original bill had one clause; now it has two clauses in the purpose statement, focusing on youth. That brings it more clearly into that vulnerable group category that I mentioned earlier.
As to the other points on labelling, promotion and sponsorship, the key difference is that they took the advice proffered by Justice Iacobucci and made it, at least on its face -- and beyond, actually -- a partial rather than a total ban on advertising. That clearly was the major problem faced by the majority group in the RJR-Macdonald case. On those bases, I would assume that this particular legislation would pass the test.
In relation to search and reverse onus and those kinds of enforcement provisions, I would leave the discussion open for your questions. At first glance, I see nothing terribly offensive there either, contrary to the suggestions of other witnesses.
My conclusion is that the legislation would be saved under section 1, that they would look closely at the recent decision in the RJR-Macdonald case, which is why I reproduced that. It is more important to have the views of the Supreme Court of Canada than to have mine. That is what you are trying to predict at the end of the day. Therefore I think it would succeed.
The one issue which I expect we will discuss is vagueness. Professor Lessard dealt quite well with that question. If you are moving from a total ban, which at least is clear, to a partial ban, there can be some element of vagueness as to exactly when the ban does or does not apply. The question is whether it is a permissible level of vagueness. I am inclined to agree with Professor Lessard that here it is permissible and, therefore, constitutional.
Senator Beaudoin: It is a pleasure to see you again before this committee. I have three questions. One is on the total or partial ban; the second is on the regulations; and the third one is on the court case.
I agree that there is no problem regarding the division of powers. Of course, it is a very comprehensive bill, but, still, having regard to the jurisprudence, this falls under the criminal law power and that is the end of it.
On the Charter, obviously it is a restriction of the freedom of expression, so the whole debate is whether it is justified under section 1. Some people came before us the other day and said that clause 20 and the following clause are equivalent to a total ban.
My first reaction is that that is an exaggeration. There is no total ban. There is a partial ban. I would like to know a little more from you on this point. When do the sections of a statute, which are already stringent, become the equivalent of a total ban?
Mr. MacKay: That is obviously a vital question because in order to bring this within the RJR-Macdonald case, they have to suggest that this basically is the same thing in a different form; that it is colourable legislation; that they have disguised it, but it is really a total ban.
I do not think that is true. It is possible in some cases that it could be applied in a way as to make it almost a total ban, but then the problem is not the legislation per se, but the way it is applied or the way it is defined by the regulations. This is another question. Much of the actual decision is passed to the regulation level.
On the face of it and in reality, it looks to me like a partial ban. It is possible that the power may be abused in some circumstances and applied as a total ban. If that happens, they should deal with that application rather than with the legislation per se.
Senator Beaudoin: In other words, the margin is broad.
Mr. MacKay: The margin is broad. The reason I cited portions from the Macdonald case is because it came close to succeeding with a total ban. Even if it were in some small respect a total ban, this legislation still allows considerably more than the first piece of legislation did, and it almost passed.
Senator Beaudoin: The justices who ruled on the Macdonald case are still sitting today.
Mr. MacKay: That is right.
Senator Beaudoin: As you said, the margin four have already expressed a very definite point; we must talk about the others. Since it is not a total ban, then they would go along and say it is constitutional in that sense.
Mr. MacKay: I would go even one step further. In the decision of Justices Iacobucci and Lamer, I believe they wanted a suspended declaration. They were inviting new legislation. That is part of the majority, not even the other four. Six of nine justices are on the record as saying they are open to redesigned legislation. It is probably sufficiently partial to meet that group.
Senator Beaudoin: I am inclined to agree.
The regulations are very broad, as they are in gun control and other statutes. There is a tendency today to delegate a lot of power to the Governor General in Council. Some people say it is really exaggerated. When does it become unconstitutional?
If I compare this bill with some other bills, it is still within the purview, the mandate or the ambit of the common and actual tendency. You did not insist on that. I guess you attach less importance to that.
Mr. MacKay: It is noteworthy that a piece of this legislation outlines a great deal of discretion left to the making of regulations. There is no question about that. However, that is partly necessary because it is a partial ban and lines must be drawn. That is one part of the answer.
The other part of the answer is that all regulations must come before the house before they are effected, and so there will be another chance to look at that. If there are problems in the regulations, those should be dealt with at that stage.
It seems your question is really whether they have delegated away so much regulation that they have given away their legislative role. They have not abdicated and given to the bureaucrats the power to design the legislation. That is almost the test. There is a broad power to make regulations and flesh out the details as long as the power is derived from statute and as long as they are not acting as legislators.
Senator Beaudoin: My last question relates to the Laba case of 1994. If the accused is under an obligation to establish beyond a reasonable doubt that he or she is not guilty, of course it violates the Charter of Rights and Freedoms. Everyone agrees that there is no doubt about that. The courts went further and said that cannot be justified under section 1.
In this case, if the accused can present an explanation or an excuse or some other means of defence, then, of course it may be justified under section 1. Therefore, the famous clause 53 would come under which category -- the second one or the first one -- in your opinion?
Mr. MacKay: I think it comes under the second category. I do not claim any particular expertise in having looked at these closely, but, in my view, the legislation in a number of different areas has included that kind of second category of reverse onus.
One cannot be required to prove innocence; that is contrary to section 11(d) and probably contrary to fundamental justice in section 7. However, that is not what I read as intent of clauses 53 and 54. These clauses do less than that.
There are provisions in a whole host of legislation, such as the Criminal Code, the Narcotic Control Act and the Food and Drug Act, and I think the comparison might well be made that, where we are dealing with criminal matters, such as here, and where we are dealing with food and drugs, which some might say we are talking with here, that this is a case where this kind of provision may be appropriate.
There was a debate -- I forget whether it was with Professor Schabas or someone else -- as to whether the government had to show that this power is necessary in order to have the provisions survive. I do not know that that is correct, but, if it were, presumably they would put forth evidence suggesting it was vital to prosecuting offences to have that kind of provision.
Senator Beaudoin: In other words, reversal of evidence may be unconstitutional, but it is not necessarily unconstitutional if you present a reasonable excuse.
Mr. MacKay: That is my reading of the Oakes case and the cases that came after it. The direct reversal of onus is not acceptable, but more indirect ones can be justified, at least under section 1, or they might not even violate in some cases.
Senator Gigantès: I support the legislation, but I really worry about the regulations. Perhaps you can enlighten me a little. If I were on the other side, what could I do about it?
The case that sticks in my mind is the one in which the public servants at Revenue Canada were not prepared to disclose their rules of interpretation for the regulations. An Ottawa lawyer had to fight them for years to get it out because they would say that, according to their interpretation of the regulation, this tax report is not correct. When someone wished to see the interpretation, though, they would not show it.
There is a tendency on the part of public servants to write regulations and interpretations of regulations that make their own lives easier rather than those of the citizens. What defence would a citizen, even a purveyor of cancer, have against such abuse?
Mr. MacKay: That is an important point because it is really an unknown quantity. We know that the bill gives a lot of the critical grey area to the regulation maker to determine. That is my reading of what they are doing. Many of the difficulties are in defining "lifestyle" and defining some of the terms beyond the minimal definitions here.
Regulations like the statute can be subject to Charter challenges. Regulations not being publicly available would be one problem, and if they are too broad, that would be a Charter violation.
You cannot give to a civil servant or to an administrator an unfettered discretion to determine the act. They are limited in a number of ways. First, they are limited by the statute. No regulation can be inconsistent with the statute. I notice there was some debate about some clauses of the bill starting with the words "subject to the regulations," which is an odd phrase to use because, by definition, all regulations are subject to the statute.
First, having said that, that is one attack for which, in basic constitutional principle, you could say that any regulation that is inconsistent with the statute is ultra vires in the non-constitutional sense or in the administrative law sense.
Second, as is the case with the statute, the regulations must be consistent with the Constitution. The regulations must give effect to the various rights protected in the Charter of Rights. That challenge could still come once those regulations are brought before you. If they do not accord with the proper balance between individual rights of commercial speech and the purposes of the statute, then they, too, can be challenged as being contrary to the Constitution.
Senator Gigantès: Is there any wording that would allow me a little less worry about all these parts of the statute that start "subject to the regulations"? Could we change that wording somehow, such as "subject to the statute itself and its consequent regulations?"
Mr. MacKay: That would be a sensible amendment because that is what I understand the law to be anyway. To the extent that the statute in any way tries to make the regulations paramount, then I do not think they can do that. The wording you suggest would reflect the legal reality anyway.
Senator Gigantès: If I understand you correctly, the regulations cannot be paramount, but I do not think the impression should be created that they are paramount by a cursory reading of the text on the part of someone who is not as learned in the law as you are or as is my colleague opposite.
Mr. MacKay: That is a fair interpretation. I do not think your suggested change in wording would do any damage to the act. That would be consistent with the purposes of the act, but clearer in terms of the role of regulations as being secondary to that of the statute.
The Chair: If no other senators have questions, I wish to thank Professor MacKay for his clear and concise presentation. You are quite right in saying that, having come a week later, many of the senators have resolved some of the issues which you have raised today. Certainly, your explanations clarified them a little more. Thank you for being here today.
Mr. MacKay: Thank you for having me. It is always a pleasure.
The Chair: While the slide projector is being set up now, I will give you another notice that you may not have seen.
In the continuing consideration of Bill S-5, Senator Haidasz' private bill on tobacco, there is a witness which may be of interest to senators. His name is Dr. Rick Frecker, Associate Dean, Undergraduate Medical Education, University of Toronto. His specialty is on addiction research, and he will speak more particularly on nicotine addiction before the Standing Senate Committee on Social Affairs, Science and Technology. They are meeting in room 356-S of the Centre Block at 10 a.m. tomorrow morning. I recommend that evidence to you.
Our next witnesses are Professor Pollay and Dr. Alan Best. Please proceed.
Professor Richard Pollay, Faculty of Commerce, University of British Columbia: Thank you for the invitation to be here today. I have been active in my own research on the issues of tobacco marketing -- being advertising, consumer behaviour, public relations, packaging, and so on -- for the past decade and have authored over a dozen papers. I have served as consultant to the U.S. Surgeon General and was scheduled to be an expert witness in many of the trials, including the large action in the States.
In the course of that, I have had access to lots of corporate documents. It is that managerial perspective that I intend to share with you in my opening remarks. We can then discuss the larger role of advertising and how it influences consumer behaviour, the onset of smoking, the sustaining of smoking, and so on.
I have provided some materials to the clerk which will be distributed to you. They give an overview table and discuss advertising's role in nicotine addiction. They also include a reprint of an article of mine. Attached to the overview table is a bit of biographical information about me and, most relevantly, a reproduction of an academic article of mine that discusses the documentary evidence that was produced during the course of the trial on the constitutionality of the Tobacco Products Control Act.
I am well aware of the industry's position and posturing that they are not certain about the product's deadly and addictive nature, that they are good law-abiding corporate citizens, that they have high ethical standards, and that their advertising and marketing has the intention and effect of only influencing brand loyalty and brand switching, not inducing starting or preventing people from quitting -- that is, offering them reassurance lest they quit.
I am a business school professor. I have been at the University of British Columbia for over 25 years. As a professor, I wish I could tell you that that is all true, namely, that these were good corporate citizens. Unfortunately my reading of the documents is that it is far from true.
I will show you some slides that illustrate why I come to that conclusion, a conclusion shared by the Supreme Court of Canada. That court found in its review of the documents that the most compelling evidence about the connection between advertising and consumption was from these documents, because it showed the concern of companies with the shrinking market and showed how critical advertising was to maintaining the size of the market by reinforcing the social acceptability of smoking and identifying smoking with glamour, affluence, youthfulness and vitality. There is an elaborate quote to that end.
I will take a few minutes to give you a brief tutorial and show you some examples of cigarette advertising both before and after the Tobacco Products Control Act, to help you understand its intentions and the strategic functions of the industry.
This first slide is headed "Marketing 101: Tobacco Ads Influence Children." This is the only American slide in this set. This appeared last year after the publishing of some research which I did with some colleagues. That research displayed the dramatic proof that the action of advertising is predominantly among children. Children show three times as much responsiveness to cigarette advertising as adults.
Senator Nolin: Who produced that picture?
Mr. Pollay: That was produced by an advocacy group in Washington, D.C.
Senator Nolin: So this picture of a young girl holding a cigarette was not produced by a tobacco company?
Mr. Pollay: That is correct. This was produced by an advocacy organization in support of Food and Drug Administration regulations in the United States. However, it is quite an apt picture in that most smoking onset occurs among minors. Indeed, the modal years are 12, 13 and 14 years old.
Senator Gigantès: I am in favour of the bill and against smoking. However, I feel that in introducing that and then passing on to corporate strategy, you are connecting two opposite things.
Senator Nolin: We are not thinking that any longer. That is why I asked the question; just to be sure that it is very clear.
Senator Jessiman: How does that have anything to do with advertising?
Mr. Pollay: The point of that ad and that research is that, regardless of intent, the effects of advertising are predominantly among adolescents. Adolescents are very focused on what is hot and what is not. They are very tuned into popular culture. They are very involved in forming their own identities and choosing adult lifestyles. They respond to cigarette advertising in a far more dramatic way than do adults, and that is the thrust of that research.
Senator Jessiman: We were told by people who are expert in advertising that advertising does not necessarily get people smoking or get them smoking more. Do you have some evidence, based on studies, that indicate that these ads do in fact get younger people to start smoking, or get people who are already smoking to smoke more?
Mr. Pollay: This data looks at the effects of advertising on customers of cigarettes. It is looking at the responsiveness of current customers. It does not precisely track the transition from a non-smoker to a smoker.
Senator Nolin: That is a big difference. You are focusing on people who are already smokers.
Mr. Pollay: Yes, this focuses on adolescents; and adolescents are very attuned to smoking.
The Chair: Senator Nolin, could we allow Professor Pollay to complete his presentation?
Senator Nolin: We are trying to win the war of imagery, and there is a lot of imagery on that screen, which is why we decided to interject, with your permission.
Mr. Pollay: This image is something I created to try to capture the strategic problem the industry faces. If you think of this as a cistern or a reservoir, a container of water with pipes coming in and out, this represents the size of the Canadian tobacco industry with an inflow showing the recruiting rate, an outflow showing the quitting rate, and the container itself is broken up into various categories.
The strategic problem of the industry is very much driven by a few key facts. Most smokers are concerned about their health and need some reassurance. Eighty per cent of smokers are identified in corporate documents as pre-quitters. Very few people are switchers. Those people are not only few in numbers but are demonstrably fickle in character, by definition. They tend to be older and more frail. They are not a very attractive market segment. Starters are almost invariably minors. Eighty to 90 per cent of smoking onset occurs among minors.
The result is that the strategic priorities are, first, to reassure concerned smokers lest they quit; second, to recruit new smokers; and, third; only as a tertiary objective to induce brand switching.
The targeting of concerned smokers is with pictures of health. The pictures of health are the prototypical style of cigarette advertising.
Senator Nolin: That is 1987?
Mr. Pollay: Yes. These are all before the Tobacco Products Control Act. Next I will show you the transition.
The classic forms of cigarette advertising were pictures of health. We have done some analysis of Canadian cigarette advertising and some two-thirds of cigarette advertising communicates healthfulness.
The corporate documents indicate very clearly the strategic importance of youth. Not only do the research documents discuss the behaviour of 11-, 12- and 13-year-olds, but:
The industry is dominated by those companies most effectively meeting the needs of younger smokers...Our efforts --
-- in this case those of Imperial Tobacco --
-- remain on these younger groups in spite of the (poor) share performance that may develop among older smokers.
To put that in more colloquial language, our marketing campaigns will seek to turn on the young even if they turn off the mature.
The targeting of the campaigns by Imperial Tobacco included 15-year-olds and older and included non-smokers.
Among the other findings of the research was that starters believe that they will not become addicted. Young people are aware of some of the health risks, but they do not believe that they personally will become addicted. Once addiction does take place, it becomes necessary for the smoker to have a wide range of rationalizations. Another corporate document said that starters thought they could quit easily, but they become slaves to their cigarettes.
Senator Gigantès: Which are these corporate documents?
Mr. Pollay: These are in corporate documents that were produced in the Tobacco Products Control Act case and the specific citations are in the article which has been distributed.
The research on minors is very extensive using closed camera techniques, extensive interviews, psychological testing and so on.
How are the ads crafted to appeal to adolescents? This was tested in Toronto with an explicitly youthful orientation. This was intended to communicate peer approval in order to feed into the whole notion of peer pressure. This was rejected by adolescents because it was too young. Kids do not want bubble gum products. They want symbols of adulthood, not symbols of adolescence. It is important to communicate something to which children aspire, not something which reflects their reality.
Therefore, this campaign, which is very blue collar, which is a reflection of the reality of smoking populations, was not very successful. It failed in direct head-to-head competition with the Player's brand, again because this does not capture that to which people aspire. To what do adolescents aspire? The pressing psychological need of adolescents is the need for independence, autonomy and self-reliance, which is something some parents learn the hard way as kids try to break away from authority.
The most successful campaign was the Player's campaign which showed people alone. In addition to this being a picture of health because of the pure and pristine environment and the fairly aerobic activity, what is important is the solitariness of this individual, the self-reliance that is intended to be communicated. These are carefully crafted images.
When this particular image of a man carrying a windsurfer was run, it was found that some people did not know how heavy that equipment would be. In that ignorance, they began to think about heavy as causing one to be out of breath, out of breath relates to lungs, and lungs to lung cancer. If you are marketing cigarettes, that is no good. You cannot trigger the thinking process. You want an image that is seen but not contemplated. It is what we in consumer behaviour call counter-argumentation. As a result, the ad was revised in a simple but elegant way. The person was shown sitting down, relaxing, which avoids the counter-argumentation.
I would point out that these images are quite expensive. A photographer can earn $50,000 for his expenses and fees for generating an image such as this or for the Matinée image we saw earlier.
When the ban came in as a result of the passage of the Tobacco Products Control Act, the industry had to cope with that legal situation. They did so by exploiting aggressively the loophole in that law around sponsorship provisions. The new forms of advertising for Player's became a sponsorship of racing events.
What is interesting in this scene of a race car driver walking along the track is that we still have this heroic individualism but in a more dramatic venue. Now, this person is a risk-taker who becomes a hero because of his success in taking risks. We still feature the individual, with the crowd scene being pushed to the background.
This advertising campaign is also notable because the warnings have disappeared. This kind of advertising is effective among kids. Arguably, it is more effective than those with the dramatic warnings precisely because of the absence of the warnings.
We now have other kinds of extreme sports being advertised. This next image depicts an event that just happened over the weekend at Whistler. It depicts extreme racing sponsored by Export "A." There are a number of other sporting events. The association that the sponsorship and the advertising of this sponsorship gives to the industry is the communication of healthfulness with sporting activities.
We also have sponsorship of family events like the Benson & Hedges Symphony of Fire. These were new events, at least in Vancouver, which were initiated after passage of the Tobacco Products Control Act in apparent contravention of that law. Nonetheless, there were never any prosecutions for that. This provides a nice innocence by association and gets them on television.
Other kinds of sponsorship also gets them on to electronic media. The sponsorship by Craven "A" of country music gets them on to a national list of country music stations.
There are various jazz events which are sponsored. The arts sponsorship of which you are well aware covers a wide diversity of musical tastes.
I took this next slide myself when I was in town a couple of years ago.
For different types of markets, such as women, you will have sponsorship of fashion events in order to associate some brands with fashionability or stylishness to appeal to certain demographic group.
My bottom line is you do not want to underestimate the role of advertising. Despite the difficulty of social scientists to come up with absolute proof to show how one ad influences the onset of smoking -- just as it is difficult to show how one cigarette precipitates lung cancer -- we do have an environmental effect that is the result of sustained communications. Frequency and vividness are vital to the effects of cigarette advertising.
Cigarette advertising, like other kinds of advertising, works to sustain market. It works to influence people's social judgments about how many people smoke, how healthy smokers are, what kind of social approval smokers receive, or what sort of peer pressure there may be around smokers. That is particularly the case when they are omnipresent.
When we see cigarette advertising in abundance at retail stores, it creates what the industry calls "friendly familiarity," which is a well-established psychological principle that the more we see something, the more we take it for granted and presume it to be benign.
We are all aware of the reverse of that. If we see something strange and unusual that we have not seen before, we tend to be suspicious of it. The more commonly we see something, the more we are inclined to treat it as an everyday experience and, therefore, one which is relatively safe.
Children growing up in an environment where there is high frequency of exposure to cigarette advertising grow up with biased social judgments about the hazards of smoking.
All these retail promotional allowances in order to get shelf facings, which is a common industry practice not only for cigarettes but for other products, has the effect of making these products seem like everyday products and relatively benign. The more we see this advertising in various media, the more that tends to be the case.
I will close with an editorial cartoon that appeared when the Tobacco Products Control Act was first brought forward. It showed, from other people's perspectives, that cigarette pushers were not welcome in Canada. That should still be the position.
I am sympathetic with the problems of the non-profit organizations. I teach non-profit marketing and management in the course of my business school education. I recognize they face a difficult transitional problem. I am sympathetic also with the retailers in the problem they have in learning to live without the promotional allowances that they now receive.
I know you will likely be considering amendments that will accommodate those interests. I am not opposed to your accommodating those interests, but I will caution you that in accommodating those retailers, or the non-profit arts and sports organizations, you must not accommodate the tobacco companies in their desire to promote their products.
Dr. Allan Best, National Cancer Institute of Canada: Honourable senators, I appreciate this opportunity to be here today. It is an honour to have the opportunity to talk about tobacco marketing and youth.
The National Cancer Institute was contracted by Health Canada to review the research on tobacco marketing and youth use. We put together an advisory group of some 25 outstanding experts from Canada, U.S., Britain and Australia to work with us on that. We submitted a final report on March 31, 1996. Since then, the National Cancer Institute itself has continued to review new research. A summary of that research was presented through December 1996 to the House of Commons standing committee, along with the full documentation for the different studies we had reviewed up to that point.
You should have before you a document entitled, "Overview," to which I will be referring. In particular, I will be referring to the figure on page 6 and to the tables which follow.
The presentation to the House of Commons committee focused on what I consider to be the key issue, from my personal expertise, and that is the quality of the evidence that tobacco marketing does influence youth and how best we should think about those scientific methods and the role of science.
I am here to talk about one question: How strong is the evidence that tobacco marketing does have an effect? The problem is that we cannot ethically expose kids to true experiments, so we will never have that kind of definitive proof. The alternative scientific method is to look at all the different pieces in the puzzle as they affect the social and developmental context in which youth grow up and to look at how to fit those pieces of the puzzle together.
As Minister Dingwall and witnesses both for and against this legislation have said already, there cannot be a single study which definitively proves that tobacco marketing does influence youth. Instead, as study after study accumulates, we try to weave together the web of evidence and to fit together the puzzle, looking at how the weight and the consistency of those findings provide answers to the pieces of the puzzle and how they fit.
In figure 1 of the attachment before you, we have tried to put together a summary of all the different influences and what the pieces in the puzzle look like. Down the middle of that figure, you will see the tobacco-marketing process itself, starting with the familiar four Ps of marketing -- product, promotion, price, and place.
We end with regular tobacco use on the right-hand side. In between, many other things happen. We cannot do studies which directly link the marketing activity to specific tobacco uses, as Professor Pollay has said, but we can try to understand that process. We can look at all the different things that are going on in the environment and in the youth and in their development, and we can test those different pieces in the puzzle as they fit together.
That looks like a complicated figure. In fact, it is too simple. It only grasps at the complexity of the process a youth goes through when he or she is considering starting to smoke. It does provide us with the opportunity to test hypotheses about specific pieces in that puzzle and determine whether there is evidence that some of the pieces in the puzzle hold true. When our team of experts, Canadian and international, looked at that evidence -- and it is summarized in the tables which follow the figure -- we come to a variety of different conclusions about the pieces in the puzzle.
For example, there is strong evidence that tobacco marketing does appeal to youth. They find it interesting and attractive. There is strong evidence that youth are aware of tobacco marketing. As young as age six, they know what is going on. They can describe it. There is strong evidence that the awareness and perception of marketing are, in fact, linked to tobacco use amongst youth. There is strong evidence that tobacco marketing campaigns increase tobacco use amongst youth. As a final example, there is strong evidence that youth are particularly likely to smoke highly marketed brands.
In sum, when we look at the different pieces in the puzzle, the weight and consistency of the evidence strongly support the conclusion that marketing does play a significant role in youth tobacco use.
I should like to briefly summarize some of the most recent studies which have appeared since our original report was done. One was published last year by Dr. David Altman, who is responsible for the forthcoming 1997 U.S. Surgeon General's report on smoking and health and was a member of our advisory group. In November, he published a national study on how youth participation in tobacco marketing affects their tobacco use. He picked a national random survey of over 1,000 youth aged 12 to 15. They were phoned and asked about their awareness of and participation in promotion campaigns, whether they had the kind of savings coupons available in tobacco products, whether they had a friend who owned a promotional item, whether they had a promotional catalogue, whether they owned an item themselves, and, finally, whether they had ever received tobacco promotion mail or a free sample.
The more involved the are, especially boys, in tobacco promotion, the more susceptible they are to risk. If youth are simply aware of tobacco promotion, the risk goes up twofold. If they are aware and have a friend who owns a promotional item, it goes up threefold. If, in addition, they have participated in tobacco promotions themselves, it goes up ninefold. If they have actually received a free tobacco sample as well, it goes up 21-fold. Clearly, there is a strong association between promotion and use.
Professor Pollay has summarized a number of new studies that we described for the House of Commons showing that sensitivity to advertising is three times as great for adolescents as for adults.
The final report which I want to summarize has not yet appeared. It will be presented later this month at the annual meeting of the society of behavioural medicine, but we have access to the data which will be presented then. It is important to present this to you because it adds new methodology. It was a study done by Dr. John Pierce who heads cancer prevention and control unit at the University of California in San Diego. They did a state-wide sample of youth in 1993, measured their receptivity to tobacco promotion, and then resurveyed them three years later. This study strengthens the Altman study I described for you a moment ago by adding a prospective research design. They looked at kids who had never smoked in 1993 and tried to predict whether they would be smoking in 1996.
They find that the youth who were most heavily involved in marketing initially are three times as likely three years later to have actually smoked, even though they had not been smokers at all at the first time point. This effect was even stronger than the measured effect of peer influence on smoking.
In sum, these new studies add substantially to the weight and consistency of the evidence and strongly support the conclusion that marketing plays a significant role in youth tobacco use.
Thank you, Madam Chair. I would be pleased to discuss any of these findings.
Senator Milne: Dr. Best, where are the findings of the last study done by Dr. John Pierce set out?
The Chair: It is set out on the very last page, under "New Research Approaches."
Senator Jessiman: When the 1987 legislation was introduced, the legislation that the Supreme Court of Canada for all intents and purposes said was beyond the jurisdiction of the federal government, there were sponsorships existing then and prior to that as well?
Mr. Pollay: Yes, there were some. The amount of promotional support they received increased because of the Tobacco Products Control Act since other forms of advertising were no longer available to the firms.
Senator Jessiman: They were trying so desperately to cover everything then, as I understood it, and they did not cover sponsorships. Is there any reason for that? Surely you people or people like yourselves appeared before the committees then. I can remember the MacDonald Brier, for instance, which must be 50 years ago, which used to advertise MacDonald cigarettes.
Mr. Pollay: It is my understanding that that legislative process was similar to the one you are going through now. There were substantial representations from those groups. They would be severely impacted by anything. The original draft law was revised in order to grandfather existing sponsorship activities. The law allowed for perpetuation of existing activities to be frozen at current dollar volume, no new activities, and the advertizing was supposed to take place in corporate name only, not in brand name. That is, you could have the Imperial Tobacco Brier but not the Player's Brier.
Almost before the ink was dry, literally before the week was done, the corporations went out and created new shell corporations, that is, the Players' Limited Racing and Players' Limited Tennis, to expand that loophole in order to permit the brand visibility in the advertising, as you saw.
Senator Nolin: Do you have the dates that they incorporated those companies?
Mr. Pollay: I do not have them with me, no.
Senator Nolin: Was it within a week?
Mr. Pollay: That is my understanding, yes.
The Chair: Senator Nolin, we have had testimony about that before.
Senator Jessiman: The court was not considering sponsorships in the RJR-Macdonald case. Sponsorships are something different than the straight advertising that you showed us. All the slides certainly gave the impression that smoking was the cool thing to do. Now that they have sponsorships, and they are connected with things like the Symphony of Fire and the various golfing and tennis matches, et cetera, are you satisfied that the courts will not knock this particular act? I am concerned.
Reading from page 99 of the Dominion Law Reports, Madam Justice McLachlin speaks on behalf of the majority about cigarette lighters. She says that it is hard to imagine how the presence of a tobacco logo on a cigarette lighter, for example, would increase consumption.
Here is a justice of the Supreme Court of Canada speaking on behalf of the majority and she is not prepared to accept that; others were. It is a little confusing. You cannot get five of the nine to say everything the same. They end up with the same conclusions but for different reasons.
I would like everyone to stop smoking but that will not happen and you all agree with that. We cannot ban tobacco, can we?
Senator Gigantès: We could.
Senator Jessiman: Is it practically possible? We talked to the Canadian Cancer Society the other day and they did not want the legislation to be brought in, in that way. My first question has to do with this particular act, knowing this judgment and knowing how this judge felt. I checked and I find all nine judges are still there.
The tobacco companies' council said the other day that they will attack this. My concern is, will we go through the same thing again? You tell me.
Mr. Pollay: You raise a number of issues and quite valid concerns.
I am not a constitutional lawyer, but my reading of this judgment is that this would withstand the challenge; that is, they were concerned with lifestyle advertising. The sponsorship kind of promotion is essentially lifestyle advertising. They wanted to, however, protect the commercial rights to communicate information in a way that addressed adults but still protected children. Those provisions mean that the current law is not as far reaching as the other law was. My own reading is that the proposed law would be beneficial.
I sympathize with the court and with other individuals who are perplexed when they ask how one cigarette lighter, or one event or one ad, can cause someone to smoke. That is an appropriate question because that is not how advertising works. It is not one exposure; it is years of exposure and association with various kinds of lifestyle activities that cause people's attitudes to be biased by the persistent persuasion.
Dr. Best: One of the reasons we chose to present these new studies, which were published in the last year, was that they speak directly to that point. In the decade since the original legislation was drafted, there has been a substantial increase in the quality of the evidence that looks at issues like promotions, sponsorships and so on.
For example, when Dr. Altman finds that involvement in promotion campaigns increases risk 21-fold or when Dr. Pierce shows that, three years later, kids who were already paying attention to ads are three times as likely to be smoking, he is not just referring to ads; it is the full sponsorship range which we were discussing.
Senator Jessiman: Would you say if the evidence were given to Madam Justice McLachlin today that she would not come to the same conclusion that she did there? That is the concern that I have.
Here is a judge of the Supreme Court of Canada making this kind of statement about a promotion on a cigarette lighter; she makes no connection. I hope you are correct that the evidence before the court at that time was not sufficient to bring it forward, but now the studies are so far advanced that, hopefully, she will change her mind.
Dr. Best: The other critical issue, and this is the one with which we should come to terms, is the quality of evidence that we can reasonably expect from social sciences.
It has been put to you, for example, that we should expect the same kind of evidence that we expect for evidence-based medicine. That is not true. You cannot expect that kind of evidence. When you look at that figure, for example, you realize we cannot do experiments that link exposure to outcomes. How do we understand the black box in the middle? We think we understand it pretty well. Perhaps ten years ago, the nature of science that would lend support to this initiative was not as fully discussed or as well presented as it might be. Today we understand better.
You have heard witnesses who say you cannot expect a single study to conclusively prove that it does do this. It is an issue of looking at how all the pieces weave together and, indeed, it is a pretty strong fabric.
Senator Kenny: If I understood you correctly, Professor Pollay, you said that advertising was principally to reassure existing smokers, to recruit new smokers and to limit switching. You went on to discuss a variety of other factors that cause people to start smoking such as self-esteem, peer pressure, rebellion against adults, a desire to emulate adults. Independence, autonomy and self-reliance were three of the words you used. You did not mention weight loss, but I have heard that as being a potential factor in attracting people.
From the tobacco industry, we simply hear the argument "protecting market share." They endeavour to focus the argument down to just that one item. Do you have a view that advertising and promotion should best be considered as incremental to these other factors and that incremental impact is, in fact, the hit that causes our children to commence smoking?
Mr. Pollay: You mean incremental to factors like self-esteem and other psychological factors?
Senator Kenny: Yes.
Mr. Pollay: It is not easy to pull those things apart and add them back up again. Those ads play to those psychological needs. The classic issue here is the role of peer pressure versus advertising, as if peer pressure somehow existed in a vacuum independent of advertising, that in the absence of advertising, people somehow had a notion of which brands were cool or not, which brands were masculine, which brands were feminine and whether smoking was cool or not. Advertising contributes to all these dynamics of a psychological nature.
Senator Kenny: When we try to have this discussion with tobacco companies, they say, "We are only talking about market share here." When we talk to people who understand or who are prepared to discuss smoking in a broader context about what motivates people, they talk about all these other factors that have an impact on how young people behave. When the tobacco companies come back saying, "Look, it is just market share," it is hard to argue with them. However, you talk about it in the context of their advertising, and you put market share as being third and not first. You talk about advertising and promotion in the context of all the other things impacting young people. That is my point when I ask if you view it as something incremental that must be included. In other words, if we do not consider all of the factors, including advertising, then the tobacco companies' argument about advertising does not make much sense.
Mr. Pollay: I certainly agree with that. Even to the extent they have a concern with market share, as the brand managers no doubt do, that concern is manifested in trying to attract their share of starters. Many people are dying or quitting or moving to low-tar products in the belief that that is advancing their personal safety or health. In order to hold on to a stable market share, one has to recruit from the incoming flow of new starters.
Senator Kenny: The tobacco industry has sustained its market in light of the loss of 40,000 users per year. Where are they making up the market?
Mr. Pollay: Well, from our children. That is the basic question. The miracle of tobacco marketing is not that it has caused the industry to continue to grow. It is that it has been able to sustain the industry in the face of 30 or 40 years of medical knowledge about the health consequences of smoking.
Senator Kenny: Have you done any examination of negative ads run by governments? I understand, for example, that Proposition 99 in California was very much "in your face." It said things like, "Let us show you a pink lung; let us show you a black lung." Have you any information for this committee on the effectiveness of negative advertising and how well or how poorly governments do when they try to counter tobacco advertising?
Mr. Pollay: The hard hitting messages focused on health are not as effective as we would like them to be or as we naively think they ought to be, in part because adolescents do not worry about mortality questions. That seems so remote to them in time that it does not impact them as much as other issues around glamour and identification.
The most effective current campaigns are those trying to capitalize on this rebelliousness of youth and turning them against the industry. They are telling the kids, "Do not be taken as a fool by the industry; do not let them manipulate you." Those campaigns are psychologically more adept at mobilizing the natural proclivities of adolescents.
The other important thing is that a little bit can go a long way in these campaigns. We know from history that when cigarette ads were on television and suddenly the Heart and Lung Association was allowed on television in a spirit of fairness, even though they did not get equal time -- in fact, they only received about one-seventeenth the amount of exposure -- suddenly the issue of cancer was in your face and in your living room. The industry actually volunteered to get off radio and television in order to eliminate that message.
It does not take equal fire power in order to combat the industry. One can be very effective with the right kind of advertising.
Senator Kenny: Can you demonstrate that the share of market argument we hear from tobacco companies is really a disguise for ads directed at youth?
Mr. Pollay: It is certainly a disguise. It misstates the strategic intentions of the corporations. It is hard to generalize because some brands are aimed at older, health-concerned smokers. The focus there is reassuring them, lest they quit, that it is okay to smoke. Other brands are starters brands. Those are designed to capture starters. One cannot generalize about all advertising.
However, looking at the portfolio of brands of corporations and their overall strategies, they have long displayed a strategic interest in youth. We are now seeing more and more corporate documents illustrating that quite vividly, not only the documents in Canada that surfaced in the productions around the previous trial, but also now in the U.S. and things that will surface in the trials shortly to be held.
Dr. Best: Senator, I would like to take you back to the beginning of your question around the incremental evidence. Look Figure 1 which I presented as a road map for trying to understand the way some of these things work. Let me see if I can make this as simple as possible.
If you look down towards the bottom right-hand corner, we are looking at the developmental tasks of adolescents. These are well established from the psychological literature and the developmental literature. This is what kids have to deal with going through the early teen years around the issue of autonomy, affiliation and identity.
Senator Milne: Which one are you talking about?
Dr. Best: I am referring to Figure 1. That is what the kids are after. Then the kid is asking himself or herself, "How can I get those needs met?" The marketing industry is attaching meaning. That is up in the middle of Figure 1 where we are looking at the functional or symbolic meaning. They are saying that you can be cool; you can appear grown-up and be better accepted if you smoke. That is a way to get your needs met. That is the way the link works.
Yes, "incremental" is a good way to describe it. It does not create these needs in kids. They are there to at the start, but it shows them a very compelling, attractive avenue for getting those needs met.
Counter-advertising would have to do exactly the same thing. It would have to market not the health consequences of smoking, but market them by saying that there are alternative ways to have attractive lifestyles and to appear grown up. The challenge is how to create those vivid, compelling images using something besides smoking? What is that? The challenge for the counter-marketing campaign is to create something that can be marketed directly to kids as an alternative way to get these needs met. It is a challenge. That is partly why it has been more difficult than we would like to think. That is also why it is important to ban the promotion itself -- because it is effective.
Senator Milne: Dr. Best, I need some clarification with respect to some of the tables on this new research as shown in Figure 2. I have no problem with Figure 1, but I begin to have a bit of difficulty with Figure 2.
I assume that in each one of the three bar groupings, the left-hand grouping relates to 12- to 14-year-olds and the right-hand grouping relates to the 15- to 17-year-olds.
Dr. Best: Yes. It does not photocopy well. You are correct.
Senator Milne: No, colours do not come through very well.
What do you mean by "not susceptible", "susceptible, not current" and "current?"
Dr. Best: A series of questions had been developed previously by Dr. Pierce who I mentioned in conjunction with another article. It is a scale that asks children about their interest in and their involvement in marketing efforts and converts their answers into a score called "receptivity." They are looking at how and where an individual smokes and whether they find the advertising appealing. They are trying to get at the motivational factors. They then use that at one point in time to predict behaviour at a later point in time.
Senator Milne: How does this particular figure translate through to later behaviour? Are you saying that if they are between 0 per cent and 5 per cent and not susceptible when they are 12 to 14, then by the time they are 15 to 17, that has doubled to 10 per cent?
Dr. Best: Yes.
Senator Milne: The "not susceptible" group is increasing there.
Dr. Best: No, that is the "susceptible" group. The percentage who are susceptible rises as you move across.
Senator Milne: So "per cent received" does not run up the side of the figure? That is per cent receptible?
Dr. Best: That is right. The percentage going up the side is the percentage of respondents who say they have received a promotional item. This is specific to promotional campaigns which offer things like caps and luggage bags in return for tobacco coupons.
Senator Milne: I do not see how this ties through to later increased use. I do not see the connection within that figure. Do I need to compare this to another figure?
Dr. Best: That is not shown in this graph; that is correct.
Senator Milne: That comes into Figure 4, does it?
Dr. Best: Yes.
Senator Milne: I do not see where the smokers come in.
Dr. Best: This refers to a willingness to use. Where the smokers come in is better described in the Pierce article from which you have an abstract in there as well.
Dr. Pierce is showing that, using this measure of receptivity, the youth who are more involved and who are more receptive are three times as likely to be smokers three years later.
Senator Milne: Does that say that there?
Dr. Best: Yes. It says that, after controlling for all other major variables, the odds ratio -- which means the percentage of the people who become smokers versus the percentage who do not -- has tripled between 1993 and 1996. If they are low-risk in terms of receptivity to smoking, it does not go up at all. If they are a little bit at risk, it goes up to 1.4, then 1.9, et cetera. It is a 5-point scale.
As you see, the youth who were most receptive to marketing in 1993 are three times as likely to have smoked three years later.
Senator Milne: I missed two of the sessions last week so perhaps this was covered last week. Professor Pollay, you talked about promotional allowances to retailers. Could you tell me something about that? Do the tobacco companies pay retailers and for what?
Mr. Pollay: Typically, they pay for what is called facing. That is the amount of shelf space on which the product is visible. In the case of tobacco, that will also include other kinds of advertising strips and bars above or below the product itself. There may be additional allowances for things like clocks, waste baskets, merchandising, things in which you can carry their products, window decals, and push plates on the doors placed where one pushes to open and shut the doors. In all those kinds of point-of-sale merchandising and advertising stuff, the retailer is compensated for providing the venue for that display as well being paid for the shelf facing. That is, in order for one manufacturer to get as much shelf space as possible, they will pay the retailer for that.
Senator Milne: In other words, a retailer who makes money from selling cigarettes makes not only a percentage on the cigarette packages, but they also receive direct payments from the tobacco companies?
Mr. Pollay: That is correct. It is appropriate, therefore, to view a retail store as an advertising medium as well as a merchandising medium.
Senator Milne: That is very much so, yes. I find that a little discouraging. You talked about anti-campaigns and negative advertising campaigns. Is any group currently doing this in Canada? Is there any kind of negative advertising campaign ongoing?
Mr. Pollay: I see none in my exposure to newspapers and magazines and television.
Senator Milne: Is there any example of this type of campaign going on right now in North America?
Mr. Pollay: Yes. Some very aggressive campaigns are happening in the United States where there are dedicated funds for that purpose. California and Massachusetts are two primary examples. Those campaigns, in the view of those people administering them, are paying off. It is money well spent in terms of advancing public health.
Senator Nolin: Mr. Pollay, you have had access to more than 10 years of corporate documents because you were an expert witness for the Crown. That is what I understand.
In reading the abstract of the document which you have distributed to us today, I see these words:
Contrary to vehement industry denials, the targeting of youth is amply evidenced in corporate documents produced during the trial about Canada's cigarette advertising ban. Extensive and sophisticated research identified target segments, starting at the age of 15, and guided the advertising aimed at them, while recognizing addiction among adolescents.
Do you maintain that, before I follow up my questions?
Mr. Pollay: Yes. The details and evidence in support of that statement follow in the rest of that article.
Senator Nolin: You are saying that these are documents which you have accessed after the trial?
Mr. Pollay: No. These were documents which were part of that trial process and documents which were entered into evidence, in some cases by the defence and in some cases by the plaintiff. That is, they came both from the tobacco companies and from the Crown.
Senator Nolin: Do you want me to read your testimony when you were cross-examined by the plaintiffs' lawyers? Do you agree that you have been cross-examined specifically on the affirmation which you have just made and you answered no to the question to which you are now answering yes before us? Do you want me to read that? I can have copies of that cross-examination distributed to all my colleagues.
Mr. Pollay: I do not withdraw the statement at all. I do not recall contradicting that. I may not have been able in the cross-examination , under that pressure, to recall specific documents, but the evidence had been amply presented in the course of that trial.
Senator Nolin: You have been asked by lawyers to explain yourself and you have admitted that there is no corporate document stating that they are focusing on people under the age of 18. You have said yes repeatedly to that.
Mr. Pollay: No, I do not believe I said that. I may have been specific to one corporation or one authorship. This article provides the specifics about which you may be in doubt. Certainly, the Imperial Tobacco Company had research documents about 15-year-olds. Their media plans targeted 15-year-olds and did not specify smokers only, so they were interested in buying non-smokers as well as smokers.
Senator Nolin: Is it true that were you referring to agency documents and not to corporate documents?
Mr. Pollay: Yes, that may be the distinction that you are talking about. This is part of what the corporation produced as its evidentiary record descriptive of its marketing efforts. Some of those were market research reports. Some of those were advertising agency materials.
Senator Nolin: There were market research documents of what date? Do you remember that?
Mr. Pollay: Specific dates would be in the footnotes and in the text of this article.
Senator Nolin: Is it true that those documents were more than 15 years old when they were produced in court?
Mr. Pollay: I think the ages of the documents varied. A few were from the 1970s and many were from the 1980s. I do not think the strategic situation that the firms faced has changed whatsoever. The strategic situation is the same now as it was in the 1980s and in the 1970s.
Senator Nolin: You maintain that they are focusing on young people under the age of 18 in their strategy?
Mr. Pollay: They are very much interested in capturing a good share of starters. Like it or not, starters are under the age of 18.
Senator Nolin: My question is whether they have a strategy directed to people under the age of 18, because that is what you are saying here.
Mr. Pollay: The things I cite and quote speak for themselves. It is my reading that, yes, they do. They are interested in starters. They are interested in new users. Those are people not of legal majority; those are minors.
Senator Nolin: There was a slide entitled, "The Strategic Importance of Youth." There was a reference to "Confidential Corporate Document" in brackets. One of my colleagues asked about that corporate document. Can you help me find the exact quotation or the sources involved?
Mr. Pollay: Yes, I can.
Senator Nolin: Where?
Mr. Pollay: The page numbers are a bit hard to read but it is on page 267 of my article. The reference is drawn from the fiscal 1988 marketing plan of Imperial Tobacco.
Senator Nolin: Where on the page?
Mr. Pollay: It is about one-third of the way down on the first column. The full quote is:
If the last ten years has taught us anything, it is that the industry is dominated by the companies who respond most effectively to the needs of younger smokers. Our efforts on these brands will remain on maintaining their relevance to smokers in these younger groups in spite of the (poor) share performance they may develop among older smokers...
That is from 1988. Similar kinds of materials from R.J. Reynolds are in the balance of that page.
Senator Nolin: Have you introduced that quotation in your testimony as an expert in front of the court?
Mr. Pollay: I do not recall whether it was in the course of my testimony or whether, independent of my testimony, it had already been entered as documentary evidence.
Senator Nolin: From your point of view, what went wrong in the Superior Court in Montreal?
Mr. Pollay: The Superior Court absolutely agreed with the interpretation of the documents. They said that the most compelling evidence concerning the connection between advertising and consumption can be found in the internal marketing documents. They go on to talk about the role of advertising in reassuring and maintaining the size of the market by promoting social acceptability.
What went wrong is that they thought that it over-reached. Effectively, it was a total ban despite the loophole around sponsorship, and the corporations needed to be allowed to continue to provide information -- that is, to the extent they had information to provide -- to consumers in order that consumers could make more informed choices. They needed to allow for communication with the consenting adults who had legal responsibility for their decisions. The court seemed to think that the law just went too far.
Senator Nolin: It is your understanding that there was ample evidence of definite strategic decisions from the corporation to target youth non-smokers?
Mr. Pollay: That is my opinion, yes.
Senator Nolin: You maintained that opinion through the entire trial and, since the trial, you have more evidence regarding that; correct?
Mr. Pollay: The additional evidence since the trial largely comes from an American source. I have seen no additional corporate documentation of a Canadian source since that trial.
Senator Jessiman: You have talked about California and Massachusetts. Are they the best places in the world at doing something about stopping children from smoking? Is there any place else in the world where they are having some success with stopping young children from starting to smoke?
Mr. Pollay: I think those are good examples. There has been some significant progress in some of the Australian states, for example, the state of Victoria has been doing good things. Perhaps Dr. Best has other examples. There certainly are many jurisdictions that are taking this problem as seriously as Canada is. That is appropriate. The differences in those jurisdictions is the funding difference; that is, where dedicated tax revenues have been provided, then the ministries of health can actually have the resources to do something.
Senator Jessiman: Do they have sponsorships today? There is talk in the United States that they will be banned in 1998, but do they presently have sponsorships in California and Massachusetts, or do you know?
Mr. Pollay: Yes; they do. They are subject to national-based sponsorships so that television coverage of automobile racing, which features various cigarette brands, reaches into those states.
In some of these jurisdictions, one of the interesting provisions has been to take dedicated tax money and to sponsor quit programs at the same arts and cultural organizations so that, as far as the arts and sports and cultural organizations are concerned, they continue to have a sponsor, except now it is a quit program or a prevention program instead of a promotion program on behalf of cigarettes.
Senator Jessiman: What about plain packaging? Do we have plain packaging anywhere with cautions at the bottom warning that this causes cancer, or something like that?
Mr. Pollay: Not to my knowledge. There are certainly warnings in many jurisdictions but no plain packaging.
Senator Jessiman: If you had the right to do so, would you recommend that?
Mr. Pollay: I have testified before a house committee on behalf of plain packaging, yes. We talked before about the way in which the industry tries to capitalize on the psychological needs of adolescents. The trade terminology is that cigarettes are what is called a badge product. Every time I take a pack of cigarettes out, it is like displaying a badge. I communicate my identity to my peers and to myself, for that matter. The vividness of package design is instrumental. The package becomes the last step in the entire advertising communications process.
Senator Jessiman: Is there any place where they use plain packaging?
Mr. Pollay: Not that I know of at this time.
Senator Jessiman: Do you think it would be effective if you could convince some government to do that?
Dr. Best: There are so many avenues into this complex process. If this were legislation that we were looking at purely from a public health perspective, the answer would be very simple. We must stop up as many of those different avenues as we can because all of them are effective in providing some sort of influence. The need for youth is so great, to have these badges and to have this sense of autonomy and independence and affiliation, that they will take whatever avenue is there.
If this was simply a public health issue, we would shut it all down. There is no way that we would want to leave a loophole because it will have an influence on children. In most jurisdictions, we are losing this battle. Our kids are starting to smoke in increasing rates and we cannot afford to lose. Of course we would shut them all down. From a social science perspective, it is clear: You shut down as many as you can. They are essentially interchangeable and you would maximize your impact that way.
Senator Jessiman: What about the World Health Organization? Have they recommended anything to do with plain packaging?
Dr. Best: I am not aware of it specifically.
Mr. Pollay: I do not know.
Senator Jessiman: It is a world-wide problem, not a Canadian problem. It is very serious. From what I have read, I am not certain that cutting out sponsorships will make a great deal of difference, but if it makes a very small difference, then I am for it. We must go a lot further.
Senator Milne: Professor Pollay, last week I asked Mr. Parker if he was aware of any internal research studies about sponsorship and consumption. At the time, I believe he categorically denied that any such thing had been done.
Justice La Forest talks about internal marketing documents introduced at trial which strongly suggest that the tobacco companies perceive advertising to be a cornerstone of their strategy.
I am in quite a quandary over this. I really do not know who to believe. Can you help me solve this problem?
Mr. Pollay: I can only guess that Mr. Parker may have a specific notion of what you meant by "sponsorship." He may have been addressing what, to his knowledge, were the studies of the impact of, for example, Player's Limited Tennis, and he may have been telling you fairly that he did not know of such studies.
I think the court decision you referenced is looking at the larger domain of all promotional communications, that is, advertising in the larger sense of the word and talking about the totality of the documentation before the court. I think they are likely to have had the bigger perspective.
Senator Milne: I am horrified that the people who sell tobacco are making money from the amount of shelf space or promotional items that they use to go along with the cigarettes. I have just been informed that they make more money from fees for facing and other promotional signage than they make from the sale of tobacco itself. Do you have any statistics on that?
Mr. Pollay: I do not have any information on that. I think that would vary from store to store. That is more likely to be the case in the very small convenience store where there tends to be a lot of this sort of signage and display material. The supermarkets are not interested in covering their windows with cigarette advertising, so they would have proportionally far less of this promotional allowance income. There would be quite a variation depending upon the type of stores you are looking at.
Senator Nolin: Mr. Pollay, are you aware of such a study on the effect of sponsorship?
Mr. Pollay: Do you mean within the Canadian documents?
Senator Nolin: Yes.
Mr. Pollay: No, I am not aware of any.
Senator Nolin: It was a very specific question put to Mr. Parker and they got a very specific answer. I thought you may have another answer to give us.
Do you consider yourself to be an objective witness; a neutral, objective expert?
Mr. Pollay: I certainly consider that I approach these documents with objectivity. I find myself morally appalled by what I discovered in the course of my review of these documents.
Senator Nolin: Because you are appalled at what you are finding, do you think you have the authority, as an expert, to quote selectively; to use some parts of sentences and leave others out?
Mr. Pollay: None of the quotations in the report in front of you are out of context. I think they provide the most germane material. One need not provide all the drafts for everyone to read. That shows the same kind of selectivity in which any historian would engage in reviewing the volumes of documents.
Senator Nolin: Let me rephrase my question to be more focused. In the RJR-Macdonald trial, you produced an expert report and you were questioned on that report. It is in the evidence that you selectively left out some words -- because you were quoting from some other documents -- and selectively used some other words to produce the result you were seeking, and it was not accurate.
Mr. Pollay: That was the nature of the cross-examination, for sure.
Senator Nolin: I am talking about written reports, written documents signed by you which the courts did not examine because they were not evidence toward the conclusion you were seeking.
Mr. Pollay: I am not clear on your question.
Senator Nolin: I will put it in French, if I may.
[Translation]
During the trial opposing RJR-Macdonald and the Government of Canada, you were questioned as an expert witness. In support of your testimony during this trial, your document was introduced as evidence by the Government of Canada. You were questioned about that document. During your cross-examination, it was demonstrated that this document referred to other documents, mainly from tobacco producers, and that in that document you had quoted incomplete sentences that led the reader to conclude that you were right in your conclusions and that this was false. Could you comment on what I have just said?
[English]
Mr. Pollay: I do not believe that I quoted out of context at all. It is true, as you will see in this report, that not every last word is extracted from the source documents. Highlights are presented in order to capture the theme of the source documents.
Senator Nolin: Do we have all the transcripts of all the evidence from that court case?
The Chair: I am not sure that we have all of it. We were never asked to obtain it. We do have some in terms of the studies that were provided to us last week by the Canadian Cancer Society and some materials that were provided to us by the tobacco manufacturers.
Senator Nolin: I have here 15 pages of the cross-examination of Dr. Pollay.
Senator Gigantès: A selected excerpt.
Senator Nolin: That is why it is 15 pages.
Senator Gigantès: I simply wanted to point out that we all go around with selected pieces.
Senator Nolin: Exactly. I produce this as evidence that Mr. Pollay is not saying exactly what the documents to which he is referring are saying.
Thank you, Mr. Pollay.
Senator Gigantès: Professor Pollay, would you say that you are more appalled at attempts to make young people smoke than the tobacco manufacturers are at the thought of losing profits?
Mr. Pollay: I cannot say that, but I do notice that the companies seem as addicted to their profit stream as the customers are to the nicotine.
Senator Gigantès: Do you think that you have been in any way and in any case more selective in the views you have presented or the facts you have presented, than are the tobacco manufacturers in never mentioning the fact that they kill people through cancer?
Mr. Pollay: Definitely not.
Senator Gigantès: Thank you.
Senator Kenny: On the same point, I understand Senator Nolin's view and he does have a right to raise questions of that sort. However, it is fair to say that all of us expect witnesses to give us their views and opinions as best they can at the time that they are here. We should be prepared to accept the testimony that we have heard, just as we have been prepared to accept the testimony from other witnesses. We will all decide what weight we would like to attach to it.
The Chair: Thank you. I assume that was a comment and not a question.
Senator Kenny: It was.
The Chair: I would like to remind senators that it was hoped originally that Dr. Best and Professor Pollay would be here at the same time Dr. Luik was here last week. If that had been the case, we would have had the appropriate contrast which we are seeking. Senators will recall that Dr. Luik had done some work for the Canadian Tobacco Manufacturers' Association. Professor Pollay has made it clear that he has done some work for the Surgeon General in the United States. We have a balance of testimony here. There are opposite things being said through which we have to filter our ultimate decision.
Senator Gigantès: Is Dr. Luik a medical doctor?
The Chair: Dr. Luik is a professor of advertising.
Mr. Pollay: He is not a professor of advertising. In fact, you have not had any marketing or advertising professor come before you. Mr. Luik is with the Niagara Institute which is a think tank. I have no knowledge of him ever having published or having held a job in marketing, advertising or consumer behaviour.
The Chair: We will not get into a discussion of Dr. Luik's qualifications. He made a presentation to us.
Senator Kenny: Can we leave it at white hats and black hats, Madam Chair?
The Chair: Yes; and most of us are grey heads.
Thank you both very much for your presentation.
Next, we have, from the National Association of Tobacco and Confectionery Distributors, Mr. David Crouch, Mr. Luc Dumulong and Mr. Mark Tobenstein. Please proceed.
Mr. Luc Dumulong Executive Vice-President, National Association of Tobacco and Confectionery Distributors: Madam Chair, the National Association of Tobacco and Confectionery Distributors, NATCD, would like to thank this committee for this opportunity to present our views on Bill C-71 and also to collaborate with the government in making this bill better legislation.
In Canada, as we all know, tobacco is a legal product and should be used only by adults. The NATCD does not promote smoking. We only distribute the products in Canada. However, we strongly favour education aimed at minors.
In the executive summary of the "Blueprint to Protect the Health of Canadians," we applaud the intention of the Minister of Health to review every proposed measure:
...in the light of supporting evidence in order to assess the effectiveness as well as the implications for international obligations, trade laws, competitiveness, employment and contraband.
Canadian taxpayers should expect the same approach to apply to Bill C-71.
After reviewing Bill C-71, one could conclude that the proposed legislation disregards the intention of the former Minister of Health Ms Marleau. On many occasions, we heard the present Minister of Health, Mr. Dingwall, repeat that Bill C-71 is a health bill. However, we have yet to see evidence that the measures proposed will have any impact on smoking uptake by minors or on consumption in Canada. Furthermore, in its actual form, the proposed legislation does not take into account job loss in the distribution channel resulting from a lack of consultation with stakeholders and experts in the distribution industry.
Our association agrees with and supports the principles of the bill and several of its provisions. However, the wording of certain clauses could lead to unwanted economic impacts; meanwhile other clauses are unwarranted.
We are pleased to see the latest introduction of amendments providing for parliamentary examination of all regulations before going into effect. However, it is difficult to provide adequate and constructive comments on those regulations when we are allowed only 15 days for review. The regulations were received on April 1, for your information, which means that by next week I should have my comments in. This bill and its regulations which will greatly impact our businesses should have been presented at the same time, and an adequate review period of at least 90 days should have been allowed.
The NATCD congratulates the government and supports fully the banning of mail order distribution. It was necessary for several reasons. There is no control of who is buying the product. Mail order distribution is an important source of interprovincial contraband which affects our members operating in high-tax provinces. It promotes tax evasion as well.
We support strict proof-of-age requirements at the retail level. This is the best way to control the accessibility of minors to the product. As members of the Canadian Coalition for Responsible Tobacco Retailing, we assume our responsibilities. We helped to launch Operation ID about which you heard last week. As of today, of the 70,000 kits which have been districted to retailers, one-half were channelled through NATCD members who feel very strongly about this initiative. We fully support Operation ID.
Only cigarette vending machines equipped with technology such as remote control or operated with tokens should be allowed. Therefore, control on who purchases cigarettes is maintained. Given the age control offered by such mechanisms, banning machines in other locations than bars, taverns and beverage rooms would not be necessary.
In the bill's present form, the Governor in Council can stipulate product standards. If there are significant discrepancies between products forced on to the market under the new standards -- which as of yet are unknown -- and consumers' preferences, a perfect opportunity will be created for smugglers to supply the market with untaxed, consumer-preferred products.
Extensive but unknown reporting requirements from wholesalers could be demanded in the present version of the bill. The result would be an unnecessary, costly, additional, administrative burden for the distribution channel. Since manufacturers now report their shipments by province and by brand and, under this bill, will continue to do so, we fail to understand what purpose wholesalers reporting shipments to individual retailers will serve other than to add to the increasingly heavy paper burdens which governments put on small businesses. With the highly competitive nature of the trade, updates would have to be done more frequently which would require an important allocation of resources and energy. With thousands of tobacco retailers in Canada, the government would also need to devote a considerable amount of resources to handle the data.
In the interpretation section of the bill, the proposed definition given to the word "furnish" may lead to interpretations. Under clause 8.(1), will under-age staff still be allowed to be employed by wholesalers and retailers? If that is not the intention of the government, it should be clearly stated in the bill.
An arbitrary and likely illegal aspect of the bill in its actual form, 18.(2)(b) bars trade associations' representatives such as myself or any person or organization receiving a consideration directly or indirectly from manufacturers or a retailer to communicate any information. We have brought this concern to the attention of the government on three occasions, and we proposed an amendment to ensure that this does not contravene the Charter of Rights and Freedoms, but the clause remains unchanged. We need to change this clause.
The use of present displays allows for supervision by store attendants. This is also an important source of revenue for retailers that is likely to disappear under Bill C-71's present form, clauses 22 and 24. This measure would hardest hit small, independently owned retail stores and the independent wholesale distributors.
Eliminating cash rebates in clause 29.(a) within the distribution channel will result in substantial losses for businesses and will achieve nothing for the government's objectives. Clause 29.(a) should be aimed at consumers, not at buyers. There is a difference.
Bill C-71, in effect, bans promotional material for products or sponsored events at retail. The demonstration that banning these materials or reducing their visibility will have an impact on the smoking rate has yet to be presented. However, curtailing this practise will have a considerable financial impact on wholesalers and retailers. The hardest hit will be small, independent, family-owned operations which depend on each dollar from this trade practise, something which is also common in other product lines.
Display of packages is to be determined by regulations that are not yet known -- actually, that we just received. The potential for negative consequences resulting from reduced display is very serious for retailers and wholesalers. Here again, the ones hardest hit by this measure will be small, family-owned, independent operations. The $60 million paid in allowance by manufacturers to retailers is an important source of revenue. For many small retailers, not having this source of income would decrease their profitability and put them in a serious financial predicament, all this without any impact on the government's objective of reducing consumption or sales to minors.
With regulation-specified display layouts, each retailer would be required to redesign his display at his own expense. Limited inventory space resulting from regulation and clearly outlined in the blueprint could result in extra labour costs and increased crime if the attendant had to turn his attention away from the cash register.
There is no demonstrable connection between countertop display and the decision to smoke. This measure is unlikely to decrease the smoking rate. The decision by an individual to purchase tobacco products is made regardless of location or display location. The store location for these displays provide for supervised sales by store attendants. The present legislative purpose is to assure that all sales are supervised, not to impose a financial burden on Canadian tax-paying businesses.
With the present market condition, we estimate that between 3 and 6 per cent of our members' retail customers would go out of business because of Bill C-71.
Unnecessary high penalties of $50,000 under clauses 15 and 46 can jeopardize the very existence of a business, thus creating more unemployment. The aim of sensible legislation would be to deter one from violating the law, not to put people out of business. Realistic fines should replace current ones.
The powers given to inspectors to enter any warehouse or retail store where tobacco products are kept, search the premises, and seize records and product without warrant is unjustified. Bill C-71 should respect the Canadian Charter of Rights and Freedoms.
To conclude, the Canadian government has a responsibility to take all necessary precautions as stated in the blueprint, including studying the financial impact on businesses and the effectiveness of the proposed measures on reducing consumption before adopting the legislation. These key elements have not been presented or considered so far. It is important for the full-time jobs of thousands of Canadians that the government take the necessary time to fully address all aspects of the issues.
In the present debate, very little was said about the impact on small entrepreneurs. Just a few years ago, our members endured the consequences of an unrealistic taxation policy. While some of our members went bankrupt, others are still feeling the effects of the tobacco contraband.
Honourable senators, we respectfully request that you allow yourselves the necessary time to give the real concerns raised in our presentation the appropriate consideration.
The Chair: You have made the point this afternoon -- as did representatives of your organizations last week, and I am sure so will Mr. Joseph Chung later this afternoon -- with respect to the provision respecting "furnishing" of a tobacco product. The wording of that phrase is not very much different from the tobacco legislation focused on youth that was passed in 1993. I should like to know if you have had any difficulty enforcing that provision. Have any people under the age of 18 been prosecuted for having sold cigarettes in any of your stores since that time?
Mr. Dumulong: No. We do not sell to end users -- that is, to customers. We sell to retailers, so we are wholesalers. It is a bit of a problem that we have with this bill. There is much being said about manufacturers and retailers, and not much being said about wholesalers. Perhaps that is an indication that the comprehension of how the business works as far as tobacco distribution is concerned is not where it should be.
To answer your question, no, we have neither received nor heard of anyone being prosecuted because they were furnishing tobacco to under-age employees. However, because of the criminal element now being introduced in this bill and the heavy fine of $50,000 that can put people out of business -- and, many of those retailers, my clients, and members as well, do not know what $50,000 is -- this is a different ball game altogether. If it is the intention of the government not to exclude the 18-year-olds and under from working in the trade, it should be clearly stated in the bill.
The Chair: However, you have had no problems working for the last four years under the present legislation which uses almost the exact phraseology.
Mr. Dumulong: No.
Senator Gigantès: In your view, where do young people buy cigarettes?
Mr. Dumulong: They buy cigarettes anywhere. They can either buy cigarettes from peers or get cigarettes in any which way they can.
Senator Gigantès: If a youth buys cigarettes from one of his peers, where does that peer buy the cigarettes?
Mr. Mark Tobenstein, Chairman and Owner of Distribution Regitan Ltd., National Association of Tobacco and Confectionery Distributors: When young people want a smoke, they have no problem getting the cigarettes. If they cannot buy the cigarettes at a store -- that is, if the store will not sell to them because they are under age -- they will either get another person who is of age or looks of age to buy the cigarettes or they will ask their parents to buy them, and that is what is happening quite a bit. Parents are buying cigarettes for children.
Senator Gigantès: There is considerable evidence that young people buy cigarettes in retail stores which do not ask them for evidence of age.
Mr. David Crouch, C.A., President, (Chief Financial Officer, Allind Distributors Limited, National Association of Tobacco and Confectionery Distributors: We should clarify that. We support the part of the legislation which deals with selling to minors. We support it, and our association supports it. We do not want to sell to minors. We do not have any problem with anything in the bill regarding that.
Senator Gigantès: If sales to minors are stopped altogether, there will be less sales of cigarettes.
Mr. Tobenstein: I do not believe that at all.
Mr. Dumulong: Why?
Senator Gigantès: If one-third of the cigarettes sold are smoked by minors, and if cigarettes are no longer sold to minors, sales have fallen by one-third.
Mr. Tobenstein: Maybe I could explain this. The way I feel about the problem of minors smoking is that the problem is at retail. If it was enforced at retail level that minors could not buy cigarettes, I would be 100 per cent for that, too.
Senator Gigantès: Yes, Mr. Tobenstein, but we were told that we should consider the impact of the loss of sales. You said that people would suffer from loss of sales.
Mr. Dumulong: I was not referring to loss of sales. I was referring to loss of display allowances and dollars paid by manufacturers to rent space in retail stores. I never mentioned sales.
Senator Gigantès: The manufacturers will stop paying those allowances and sales will fall?
Mr. Dumulong: No. Sales will not be affected by this bill.
Senator Gigantès: The retailers will continue selling cigarettes, regardless.
Mr. Dumulong: That is right. It is business as usual, although they do not get any money from the manufacturers for the allowances.
Senator Gigantès: You also said you are in favour of sales to young people being stopped somehow.
Mr. Dumulong: Yes, we are 100 per cent in favour of that.
Senator Gigantès: If sales to young people stop, sales will fall. You talked about the loss of profit and the loss of employment through fall of sales.
Mr. Dumulong: If the market adjusts and there are less sales in the market, meaning the pie is getting smaller, we will adjust. We have been adjusting for the past 30 years with the decreased sales. The market is not expanding, the market is getting smaller and smaller. This is not a problem.
If we can have 100 per cent proof of programs aimed at sales to minors, we will applaud it and support it 100 per cent. The fact remains that we will never get 100 per cent. We must be realistic here. We cannot apply 100 per cent on sale of liquor, for example.
Senator Gigantès: You want 100 per cent proof that sales to minors will fall consequent to a particular measure and I presume you also want 100 per cent proof that smoking might contribute to cancer.
Mr. Crouch: No. We concede there are some health concerns. As I said, we support the bill in the sense of not selling to minors. I have got two teenagers, neither of whom smoke, incidentally, but the smoking uptake age is probably 12 to 14. It might be much younger than that. Most of these children do not get their cigarettes from a variety store or from a supermarket or from a pharmacy. They get it from someone who is over the age of majority, 18 to 20, who has taken those cigarettes to the school grounds and sold them to youngsters. Whether they sell by individual cigarette or by package, you will not stop that. That goes on. It went on when I was 19 or 20. It goes on with liquor and beer.
We support this legislation, but just because you pass rules saying that you cannot sell in a variety store or a supermarket to anyone under 18 does not stop a 17-year-old from smoking. We do not have a problem with that.
Senator Gigantès:You are wholesalers. Your sales will not fall, so what are you worried about?
Mr. Crouch: Not because of that aspect of the legislation, no. However, there are other aspects of the legislation which are wrong.
Senator Gigantès: We heard that there would be a fall of sales that would affect employment and profits, some shops would have to close, and people would go bankrupt here and there.
Mr. Crouch: One thing we are concerned with is that this legislation appears to discriminate against the independent ma-and-pa variety store, the little guy out there who still obtains 30 to 40 per cent of his sales from tobacco, the independent convenience store. His sales may fall; he may lose promotional allowances if he cannot display the product.
Senator Gigantès: Hold on. His sales may fall if he loses the promotional allowances?
The Chair: Senator Gigantès, to be fair to the individuals who have presented to us, they did not attribute their decrease in profit to a decrease in sales. They attributed it to a lack of money for displays and promotions, which they are presently getting.
Senator Gigantès: They are not in the marketing business, they are wholesalers. They do not display anything. That is what they told us.
Mr. Crouch: We are representing our customers as well.
Mr. Tobenstein: We are wholesalers, but the problem here is not that we will lose sales. If this bill is passed the way it is, we will not lose sales. The only problem is that many of our customers will suffer and they will go out of business because they rely quite heavily on this extra money.
We estimate $5,000 to $6,000 annually per average per store. The market is very competitive and there are not many profits for the retailers. This money helps them to pay their rent.
We are worried that we will have not only fewer customers to serve but also many bad debts. That is where we are worried. There will be many problems for us.
Senator Gigantès: Can you think of any measure or come up with a concrete measure that will make it more difficult for youth to get cigarettes and will have no bad consequences whatsoever on your retailers or your customers?
Mr. Tobenstein: Look, my children do not smoke either. I have three daughters, and they do not smoke. People should not smoke. However, I am in this business. I have been in this business for 28 years now. It is a legal business and I have been making a living out of it and I have not been doing anything wrong. I have been supplying a demand. I am not against any kind of measures to try to curb people from smoking through education and enforcement at retail level, if that will do the trick. However, if we take that course, it will take some time. Hopefully, there will be some results and we can adjust to those as well.
Senator Gigantès: Are you prepared to see some attempts and take some time to see what the results of the attempts are?
Mr. Tobenstein: Yes.
Senator Gigantès: What is your opposition to this bill, which is trying certain ways to see what the results will be? You cannot predict them.
Mr. Dumulong: The problem we have with this bill is that it does not address the decision regarding whether or not to smoke. It seems to have a major impact on businesses. The way the distribution channel has been operating -- and, we are talking from display allowances to cash rebates and things like that -- it does not really address the choice whether or not to smoke. I was here last week and I heard some of the witnesses and, in particular, Mr. Luik, talking about the predictors of smoking. In this bill, nothing is done about those things. I tend to share his views about the fact that in this bill we do not address those specific things that make people start to smoke. It seems to be more a cosmetic thing here than anything else. At the same time, it will be affecting businesses even within the distribution channel, which does not have any impact on smoking uptake or the decision to smoke at all by youngsters.
Senator Gigantès: Distribution of smoking products does not have any impact on smoking uptake, is that what you said?
Mr. Dumulong: Do you smoke, senator?
Senator Gigantès: I did, but I do not any more.
Mr. Dumulong: If I were to give you a pack for free, would you take it?
Senator Gigantès: Not after my brother was operated on for lung cancer and certainly not after my wife died of cancer.
Mr. Dumulong: My point is that if you do not want to use a product, even if it is free, you will not take it.
[Translation]
I don't have to buy a combine if I don't need one. Even if I'm given a combine, I won't know what to do with it. I won't want to use it because I don't need it. Why should I take one? It's the same for any product. Every time I'm offered something I don't need, I don't take it.
Senator Gigantès: So we shouldn't do anything at all to make it more difficult for young people to buy cigarettes.
Mr. Dumulong: I think that we have to focus on education. Today we have to look at the factors that lead people to start smoking. If we don't do anything about that, Senator Gigantès, we will have implemented measures that will have considerable impact on business and especially small family businesses, without ever having had an impact on people's decision whether or not to smoke. That's what we want to settle here today, I hope. If that is what we want to settle, those are the factors we have to work on, and not factors that have nothing to do with the decision to smoke.
Senator Gigantès: Suppose we manage to convince people through all these methods they shouldn't smoke, that would have an impact on those small businesses.
Mr. Dumulong: Yes, absolutely. As we've seen in the past 30 years, there's been a reduction in the rate of consumption. We've noted what happened in the past 10 years, all kinds of methods have been put into place, there were surtax campaigns on tobacco products that generated enormous problems for Canada as a nation, as a country. Organized crime is taking control of the whole network, 70 per cent in Quebec and 40 per cent in the rest of Canada. That won't stop people from smoking. It was said that price was a factor, and yes, it is, in terms of the accessibility of a product, but only up to a point. As soon as cigarettes are more than 40 per cent more expensive in Canada than in the United States, you automatically end up with contraband.
The problem we have today that did not exist in the past is that there wasn't that structured contraband network that we have now. That network has not disappeared. The people who worked in that parallel network and didn't pay taxes are waiting for the government to make the mistake of loading on excessive taxes again so that they can reap the profits.
Senator Gigantès: We're not talking about taxes here.
Mr. Dumulong: I'm talking about measures that were already put in place. Have those measures helped to reduce consumption among young people? No, they have had no impact. In fact, young people started smoking even more because access to the product was made significantly easier since they no longer had to go to a retailer to buy cigarettes. Cigarettes were delivered at home, they were even sold to school teachers in school yards, and of course it's youngsters over 18 who were greatly solicited by these parallel distribution networks because these young people could not incur the same penalty. A 16-year old boy who sells cigarettes will not receive the same penalties as a 21 year-old. Young people were being recruited into that parallel distribution network controlled by organized crime, and they were made to sell these products. Are we any further advanced having used methods that produced such results? No.
If we really want to be effective in reducing tobacco consumption among young people and in reducing smoking uptake, we have to work on education. But that can't be done overnight!
[English]
There is no magic bullet here. The problem with smoking and the way the government has been working on trying to reduce consumption is that they took a very narrow approach, whereas the problem is actually much wider. It is more than just the "pharmaco-legal" approach now taken by the government. It is much wider than the societal problem. The psychological aspect must be analyzed, as well as the economic aspect, the socio-economic disparities and the peer pressure. All of these things will make for a program that is solid and works, but you will not have a program that will make people quit smoking. That will never happen. We must be realistic. If you take realistic ways of approaching the problem and include all the variables that go into the decision to smoke, then you will have great success. You will then be able to go around the world and say, "We have something now because we are very serious about it." We are losing time attacking the problem at its root. We are merely taking a Band-Aid approach.
Senator Gigantès: Am I to understand from what you have just said that you are in agreement that we should limit the so-called lifestyle advertising that attracts the young to cigarettes?
Mr. Tobenstein: We do not have any of that advertising, as far as I can see. I really do not see that.
Senator Gigantès: You are not talking only about your association to suppliers of cigarettes and those who sell them to the young.
Mr. Dumulong: No, we do not support lifestyle advertising.
Senator Gigantès: You do not support lifestyle advertising?
Mr. Dumulong: No, we do not.
Senator Milne: Mr. Dumulong, you referred earlier in your presentation about some confusion as to whether minors can work in stores and sell tobacco. You want the bill to be more clear.
I would point out to you clause 8.(1). It is fairly clear. The bill does not seek at all to regulate who can sell; it regulates only to whom they can sell.
Mr. Dumulong: The problem is with the definition of the word in the interpretation clause. I think this point was raised last week. If that is not the intention, there is no problem with it. Let us make it clear in the bill that it will ban those individuals who are under age from working in retail stores or wholesale establishments. That is all we are saying. We want the legislation to be precise.
Senator Milne: What would you suggest specifically?
Mr. Dumulong: We need an amendment saying there is an exception. If there is an exception stating the legislation does not apply to an employee of a retailer or a wholesaler and the cigarettes are not for personal consumption, then the problem is solved. It is very small.
We raised this issue before. We presented amendments to Minister Dingwall on a few occasions, but this should have been addressed. It is an easy thing to do.
Senator Milne: I do not see where this fits in. Are you redefining "retailer"?
The Chair: The difficulty these people are having is in the definition section of the bill which talks about the word "furnish," which is given a very broad definition. That is why I specifically asked if they have had any difficulty with the Young Person's Tobacco Act because it also uses the word "furnish."
Senator Milne: "Furnish" means to sell, lend, assign, give or send.
Senator Nolin: Give us the problem word.
Senator Milne: These guys are not giving it away.
The Chair: If I can put this in a context from their perspective, if a wholesaler arrived at a confectionery and was providing to that 17-year-old the delivery of the shipment, could that be interpreted as furnishing? The Department of Health has been very clear and said, "No", but they question whether it could be under the present definitions in the bill.
Mr. Dumulong: We had some legal advisors say it could be, to use a popular word, "construed" in that sense.
Senator Milne: Even though it is quite clear you are not giving this stuff away; you are selling it?
Mr. Dumulong: We are selling it, but when we ask an employee to put it in the back of the store or on the shelves, we are lending the product to this person. Given the criminal element of this bill, we could face prosecution -- maybe not today or not next year, but perhaps 10 years from now.
Perhaps the people around this table will not be doing the same thing, but the things that are written will stay. This bill will stay as it is written, so we simply ask for precision.
[Translation]
All we need is a point of clarification. If we have some clarification about this, you will alleviate our concerns in this regard.
[English]
Senator Milne: Who is represented by the National Association of Tobacco and Confectionery Distributors? Do you represent any retailers? You intimated that you are also representing your customers. What companies do you represent?
Mr. Crouch: My own company wholesales tobacco, amongst other products, in Ontario. Members of the NATCD primarily include wholesalers. We purchase from a manufacturer and sell to retailers. Some of our members do own retail stores and are in the retail business. Primarily, we represent distributors.
However, here today we also obviously represent the concerns of our customers because if we do not have customers, we will not be in business very long. We are looking at how this bill affects our customers as well as ourselves.
Senator Milne: What percentage of your business deals with tobacco as compared to confectionery? I am just asking for ballpark figures for the group overall.
Mr. Dumulong: The average is about 50 per cent tobacco. Historically speaking, with the way the association has been organized, there was a very specific specialty with tobacco and confectionery distributions per se. You find those same products in the store. There was a specialty, so to speak, with wholesalers regrouping under the same banner to defend their interests.
In the 1950s, instead of having 10,000 or 15,000 different items as are now distributed by our members, there were perhaps 2,000 or 3,000. The market then evolved in such a way that distributors are selling more grocery items, health and beauty aids, food services, and so on.
Mr. Tobenstein: We are basically independent companies. We are not like big chains. We are independent companies and family-owned companies in a lot of instances. We are serving the smaller types of stores. The big chains will serve their own banner stores and the larger stores. They really do not address the smaller stores at all.
We serve all kinds of stores but, primarily, the little mom-and-pop stores are the ones who buy from people like us.
Senator Milne: Approximately 50 per cent of your business, then, is with tobacco. If the use of tobacco decreases, then half of your business is affected by that?
Mr. Tobenstein: Yes.
Mr. Dumulong: That has been the case for the past 30 years.
Senator Milne: You are becoming accustomed to adjusting to this?
Mr. Dumulong: Yes, we are looking at diversifying, and so on. We can do that.
Senator Milne: You talked about promotional allowances, too. Those have just come to my attention today. Do your members receive any promotional allowances?
Mr. Tobenstein: No.
Senator Milne: What about these cash rebates that you discussed? Again, I heard about them today for the first time.
Mr. Dumulong: Cash rebates are used by any suppliers, not only tobacco manufacturers. Any suppliers will give you a better deal if you buy cash as opposed to buying on a term.
Senator Nolin: When you refer to paying cash, you are not referring to black market purchases?
Mr. Dumulong: No.
Senator Gigantès: Perish the thought!
Senator Nolin: We just want to make it clear.
Senator Milne: You mentioned $60 million is paid by manufacturers to retailers. As I was talking to the last group of witnesses, I heard that many retailers actually make more money from these promotional fees from the tobacco companies than they do on the actual sale of tobacco. Is that where the $60 million comes in?
Mr. Dumulong: That could be possible.
Mr. Tobenstein: They must make the sales in order to make the money. If they are not doing the business, they would not be getting the money from the companies.
Senator Milne: What tobacco company pays the most?
Mr. Crouch: The biggest company will pay the most based on their market share, but it depends on the deal that the retailer can make with each manufacturer. I would not want to say that one company would pay more than another.
Mr. Tobenstein: They are all fighting for shelf space.
Senator Milne: Do any of them pay higher rates for shelf space than others?
Mr. Tobenstein: They sign contracts. I do not know too much about it, but I imagine they sell contracts for a period of time. If Rothman's gets in there before Imperial Tobacco and signs up for some space, that contract may cover two years or five years.
Senator Milne: They then have a captive audience.
Mr. Tobenstein: That is right. They then have that shelving space.
Mr. Crouch: The manufacturers are trying to increase their market share. To the consumer who is making a choice, they make it look like their company has a larger share of the market than they actually do.
Senator Milne: Do any of your members get any sort of special deal if they are able to persuade some of your retail-end members?
Mr. Tobenstein: We have nothing to do with that at all.
Mr. Dumulong: No.
Senator Milne: What percentage of your members own retail stores?
Mr. Dumulong: There are about 15 per cent who are more integrated.
Senator Milne: Approximately 15 per cent are involved in both ends of the business?
Mr. Crouch: Yes. They would have some retail stores and they would also sell independently as well.
Mr. Dumulong: We also have some bigger organizations such as Sobeys.
Mr. Tobenstein: They have a distribution division which is a member of our association. They do the same kind of job that we are doing, although they are part of a big company.
Senator Milne: They are also a member of your association?
Mr. Tobenstein: They have a unit which is a member.
Senator Beaudoin: I was here last week when we discussed the word "furnish" but I want to say for the record that each word in this bill which is defined, as is the word "furnish," must be interpreted with regard to both the French and the English. The French definition of "furnish" used here is very broad.
[Translation]
Senator Nolin: At least he's trying to be bilingual and we must congratulate him for that.
Senator Gigantès: I have no problem with his French and that's not the case with all legislators in this country.
[English]
Senator Beaudoin: That is another debate. Mr. Dumulong may have a reaction to that, but the French translation of "furnish" is very broad.
Mr. Dumulong: It is too broad, and for what reason? First, I think it should be more precise.
[Translation]
This includes so many other words apart from the word that we understand as "provide", you can give whatever definition you want to "provide" within that operational definition. To our point of view, that can be open to interpretation. We fear the avenues that may arise outside that. All this does is try to needle the people who are part of the distribution networks.
We've seen this often and we had a glaring case with the surtax. That had no impact whatsoever despite the fact that we had a high level of contraband, and yet these people continued to argue vociferously that taxes should not be reduced. That makes no sense. In that sense, these excesses are dangerous given all the references to criminality within this bill.
Senator Beaudoin: In the text we see the word "give" and in French "donné à titre gratuit ou onéreux"; you can't go wrong, it's really a gift.
Senator Gigantès: "Without consideration" is the same thing in English. Where's the difference between the two?
Senator Beaudoin: "Un don à titre onéreux ou gratuit." In English it's "with or without consideration."
Senator Gigantès: No, "with or without consideration" means the same thing in English, in exchange for money or not.
Senator Beaudoin: It's broader in French.
Senator Gigantès: No, absolutely not. It's the same thing.
Senator Beaudoin: I strongly disagree.
[English]
The Chair: Honourable senators, let us deal with the witnesses.
Senator Gigantès: I thought an eminent lawyer would not fool around with the wording of a text.
Senator Beaudoin: I do not fool around.
Senator Gigantès: You do in this. It is the same thing.
Senator Beaudoin: My case is very simple. If you look to the French words --
[Translation]
"À titre onéreux ou gratuit" and the word "donné" lead me to conclude that in French, the text is much broader than in English.
[English]
I rest my case there. You have the right to err. It is your error in this case.
[Translation]
Senator Nolin: To make your position very clear, you're asking us to amend clause 8 of the bill and add wording at the end of paragraph 1 of clause 8. In order to clarify the legislator's intent, so that it's perfectly clear in everyone's mind that we're not targeting one of your employees or one of your members' employees, you are suggesting and you state on page 9 of your document that we should add the words: "unless the young person is employed by a wholesaler or a retailer" and this is not for personal consumption. I understand your point very well. What you want is that we clarify the word "give" by indicating that this does not include one of your employees as long as it's not for personal consumption. That's what you want?
Mr. Dumulong: Exactly, that's all we want. A point of clarification; when this bill was tabled, I received a copy of it on Thursday. Immediately afterwards, on Thursday afternoon, I called the government so that we could be heard before the Standing Committee on Health. On the Friday afternoon, my call was returned and I didn't have time to leave the documents with anyone or with our lawyers. On Friday afternoon, we were called to say that we were expected on Monday at 1:00 p.m. How can we possibly present something substantive or first-rate?
Senator Nolin: That's why the Senate exists.
Mr. Dumulong: Thank you for being there.
Senator Nolin: It's to catch minor errors. The legislative process being what it is, we're pleased to hear you and give you all the time necessary to express your concerns.
You took part in the ID card operation. Can you explain how you participated in this, because some of your members are retailers. How did this work with your members?
Mr. Dumulong: Following the meetings that were held with the others in the coalition, and that includes everyone involved in retailing in Canada, we agreed on the action to be taken. We had all the documentation printed. We still have to distribute it. As I recall, this documentation had been presented and it was quite voluminous. Since our members serve approximately 43,000 retailers in Canada, we had an absolutely extraordinary level of penetration in the market. Given that our members visit their retail clients on a daily basis, almost every day in certain cases, it was easier for us to disseminate the program through our distributors.
We would send a certain quantity to each distributor who then added this documentation to each delivery that they made to their retailers' stores. That's how we managed to disseminate the ID card project quite quickly and efficiently. Our distributors' sales representatives have somewhat more regular contact with retailers.
There's even a relationship of trust between the two. When you always see the same people, every week or twice a week, you say to each other: Hello, how are you, and all that. We were in a position to provide information and to make quite a complete presentation on the way this program should be implemented in terms of explaining to retailers, as well as their staff, how they should behave, what they should do, the best way to establish a policy about tobacco sales when minors come to their store, and how to make staff understand that this is a serious matter, and that sales to minors would not be tolerated. We did good work in this regard.
I remember seeing a press release on the Internet that had been issued by the Minister of Health, Mr. Dingwall, who stated that, my God, he wasn't relieved or even surprised, but satisfied with the level of increase in compliance with the law by retailers with regard to tobacco sales to minors. The compliance rate went from 47 per cent to 63 per cent. The project had not been in place for very long. These figures will continue to increase effectively and significantly. However, let us not be misled. It will be difficult to reach a 100 per cent compliance level. But I can assure you we will attempt to reach 100 per cent.
Senator Gigantès: If I understand you correctly, you're saying that you had sessions with your retail clients and their staff to explain the importance of not selling tobacco to minors. That's what you're saying.
Mr. Dumulong: We didn't have sessions with clients and their staff. There are so many. I'm referring to my members who have 3,000 clients that they must serve each week. That's still a considerable number of visits that have to be made. They have the staff to support that, of course. People were contacted directly by distributors' sales representatives to ensure that the program was not put in file 13, not thrown in the garbage.
From that point, they were given an explanation of the program and the reasons behind it and the reasons why everyone should join in the effort.
Still, we mustn't forget that this program was developed by associations of distributors, retailers and even manufacturers, of course, as you know.
This is a program that comes from the distribution network. It's our program. We are acting in a responsible manner. We know that we have certain responsibilities in terms of the distribution of products like tobacco. We are assuming those responsibilities. We have developed this program which is very exhaustive and systematic in its way of approaching all aspects of retail tobacco sales, what transpires between a retailer and an underage customer, including the development of a sales policy, and the visibility of items promoting the law.
There are even plastic panels that are put up, with a very visible logo.
[English]
The Chair: If I may interrupt, Mr. Dumulong, we do have copies of those kits available in both English and French. As I indicated last week, we will send to each senator's office, upon request, a copy of that kit in the language of their choice.
[Translation]
Senator Nolin: Mr. Dumulong, in response to a question by a colleague, you referred to the discount provided in exchange for cash payment by one of your members. I would like you to explain appendix 1 of your brief. In terms of percentages, how does this work? Is this discount 2 per cent, 3 per cent or 5 per cent?
Mr. Dumulong: I think it's two and a half percent.
Senator Nolin: So two and a half percent of the invoice value, does that represent a lot of money?
Mr. Dumulong: A great deal of money.
Senator Nolin: I was absent during part of your presentation. Did you explain appendix 1?
Mr. Dumulong: No, I did not explain it.
Senator Nolin: I would like you to explain appendix 1 of your brief.
[English]
It is 2.5 per cent of the bill. If they pay cash on delivery, I understand that they automatically receive a 2.5 per cent rebate.
Mr. Tobenstein: We get a 2.5 per cent discount for payment from the manufacturers. In some cases, we have to pay within 12 or 14 days. If you do not take that discount, I do not think you will get your next order. That is all part of it. No one takes the terms. It is all part of the price. In the competitive business we are in, that 2.5 per cent is sometimes more than the percentage gross profit you make on the product.
Senator Nolin: That is exactly the point I was trying to make with Mr. Dumulong.
Mr. Tobenstein: If you do not have that 2.5 per cent, you will not get your next shipment, because it is automatic and it is included in the price.
Mr. Crouch: We also get it from suppliers other than tobacco companies. Obviously, this legislation only deals with tobacco companies, but we get a percentage for paying the bill within a certain period of time from other suppliers. That is fairly common in the business.
Senator Milne: I believe these gentlemen told me they did not get rebates.
Mr. Tobenstein: This concerns the terms of payment.
Mr. Crouch: This is a cash discount for paying your bill within a certain period of time.
Senator Milne: Therefore, you do get rebates?
Mr. Crouch: We would not call it a rebate. If I used the term "rebate", that was incorrect.
Senator Milne: I see.
Senator Nolin: Even if you do not call it a rebate, as a panel you recommend that we amend clause 29 which reads:
No manufacturer or retailer shall
(a) offer or provide any consideration, direct or indirect, for the purchase of a tobacco product, including a gift to a purchaser or a third party, bonus, premium, cash rebate or right to participate in a game, lottery or contest;
It may not be a rebate for you, but you fit into that description?
Mr. Dumulong: That is right. We believe that cash rebates and other such measures should be aimed at consumers; not within the distribution channel. The government has no right to legislate within the distribution channel if it does not entice people to smoke. This is an anti-smoking bill. Why would the government intervene in that? This is done in all sorts of other industries.
What is the rationale for the government interfering with wholesalers getting a cash rebate of 2.5 per cent for paying within 10 days? We fail to understand the point of blocking distributors from getting these kinds of benefits. How does that address the issue of smoking? This has nothing to do with smoking. Why is it in there?
[Translation]
Senator Nolin: Mr. Dumulong, can we go back to appendix 1? Mr. Tobenstein has just informed us that the discount is included in the price of the carton of cigarettes.
Mr. Dumulong: Yes, yes.
Senator Nolin: If we look at appendix 1, does the minimum price of $16.67 or the maximum price of $20.47 include that discount?
Mr. Dumulong: What you have to understand with these figures...
Senator Nolin: Rather than ask you a whole series of questions, could you demonstrate how, based on this document, this economic model, we are to come to the conclusion that there will be a loss of jobs? Is that your point?
Mr. Dumulong: In fact, we wanted to raise two things here. Last year, our members distributed half of all cigarettes sold in Canada. Two hundred and thirty one million cartons of cigarettes were distributed by members of the NATCD, which represents half the market.
Senator Nolin: Why don't you tell us this in English. It will be easier.
[English]
Last year, our members distributed half of the Canadian tobacco market; roughly 46 billion cigarettes or 231 million cartons of 200 cigarettes.
Senator Moore: Who distributed the rest?
Mr. Dumulong: We talked about the corporate wholesalers and retailers. We are now talking about the grocery chains, the pharmacies, and so on.
Senator Moore: All right.
Mr. Dumulong: About one-half of the business is owned by independent retail stores -- that is, mom and pop operations. Those people stand to lose more with this bill.
In lines 7 and 8, I established the benchmark gross selling price. I could only average that because I did not have time to hire an accounting firm to come up with a precise number, due to the different prices in different provinces. Those are "dirty" numbers, but they give you a good idea of what is at stake here for our members.
The average retail price shown at line 12 is $24. We know that in B.C. and Newfoundland it is much higher than that. In Newfoundland, it averages $58 a carton and in B.C. it averages $50 a carton.
Ontario represents about 40 per cent of the market and Quebec approximately 28 or 29 per cent of the market. Therefore, the bulk of the market is still in central Canada and we have an average of $24 and $24. It is 50 per cent of wholesalers' business, and there is $5.6 billion worth of product distributed. However, on line 18 we see that the gross profit is 1 per cent. Line 16 is 1 per cent of line 13 because the margin for wholesalers on tobacco products is 1 per cent. They make only 1 per cent on a carton of cigarettes. That is not much.
Senator Nolin: When you say 1 per cent, that is on the selling price of $24?
Mr. Dumulong: Yes.
Senator Nolin: So they are making 24 cents out of $24?
Mr. Dumulong: Roughly, yes. Some of my members in the Toronto area are making 7 cents per carton and they must deliver, offer credits, take returns, and so on.
Senator Moore: Does that have the 2.5 per cent incentive factored in?
Mr. Crouch: Yes, it does.
Senator Nolin: On top of that?
Mr. Crouch: No, that amount includes the 2.5 per cent.
Mr. Dumulong: Yes, it is included.
Mr. Tobenstein: Whatever discounts we receive for quick payment, or whatever, which we include in our price, in no way are passed on to the consumer. That is part of the way we do business. I do not see why that must be touched or what changing that will accomplish. I think that is the whole point. It is not getting people to smoke or encouraging people to buy more cigarettes. It is all just part of the way we do business.
Senator Nolin: There is more than one point in your presentation. It is not only a question of making money but also a question of jobs that will be lost.
Mr. Dumulong: Yes; very much so.
Senator Nolin: You are adding to that.
[Translation]
The intent of your document was to demonstrate that because of a series of measures that seem quite innocuous, there will be a loss of jobs in Canada. I would like you to explain that.
Mr. Dumulong: There will be many jobs lost in Canada. Earlier we mentioned that tobacco sales represented 35 to 40 per cent of the total sales of some retailers; for others it's 65 or 70 per cent. It is the smallest retailers who will suffer the most if they had greater visibility of tobacco products in their convenience store or their business and this disappears.
[English]
For example, if a retailer is just above the profitability line and you take these moneys away from him, he will go under. If this person goes under, all the sellers will have to support those bad debts, which average about $20,000. If you have 50 retailers for each wholesaler going under, you can imagine the kind of impact that will have on them. It snowballs and grows very quickly. At the same time, where does it address the decision to smoke? We do not know the answer to that. That is the problem.
I recall a conversation I had with a Health Canada official after my first reading of that bill on that day to which I made reference earlier. I said to him, "Listen. Look at this bill. It will create a lot of unemployment at the retail and wholesale level. Do you know who will be the hardest hit? The small, independent, family-owned business again." Do you know what his answer was?
Senator Nolin: Please tell us.
Mr. Dumulong: "We know." I said, "What?" He said, "Yes, we know." I said, "You mean to tell me that you know that these measures will hit independent businesses more than anyone else?" He replied, "Yes, we know." I then asked, "And you are ready to live with that?" He said, "Yes."
Senator Milne: I think the operative word is "live".
Mr. Dumulong: You should say that to those people who will lose their businesses which their families have been running for generations.
Senator Milne: Or their lives.
Mr. Dumulong: Who will take care of these people?
Senator Gigantès: Who will take care of those who die of cancer while they are dying of cancer at a cost of $3.5 billion?
Mr. Dumulong: No one is forced to smoke. People choose to smoke.
The Chair: We are running more than half an hour late, senators. Could you limit your comments?
Mr. Crouch: We do not feel the bill addresses the smoking uptake issue at all. If the senators look at some of the other countries where this type of legislation has been introduced, it does not appear to have an effect on the uptake issue at all. We are not arguing the uptake issue. All we arguing is that it is imposing a lot of rules and regulations on us as wholesale distributors and on our small, independent customers who do not really have the resources to act to adjust to these rules and regulations the way the national accounts <#0107> that is, the big boys, for lack of a better term -- such as Price Club can. We will end up with a lot of rules and regulations which really will not accomplish anything. That is our feeling. If it would stop smoking and address the health concerns, then maybe we would feel a little differently about it, but we do not see that it will. As an association, we should like the senators to take some time, sit back and study what has happened in some of the other countries where legislation such as this has been put into place. My understanding, from the limited reading I have done -- and I have not had a lot of time to do it, I must admit -- is that it has had very little or no effect on the uptake of smoking. It is not really addressing the problem. All you are doing is changing some regulations around.
I come from Ontario -- but I am sure the other provinces are the same -- and I have seen small retailers in the last few years suffering from Sunday shopping and having to compete with big grocery stores. They have seen companies like Price Club walk in with cheap pricing. You are seeing the corner convenience stores go out of business. This is just one more kick at them, for lack of a better term. I do not think the intention of the government is to penalize these stores but that is what will happen, for no gain. From what I can see, there is no gain. We are not accomplishing anything. Children start smoking due to peer pressure. They do not start smoking because they see a great big display of cigarettes in a corner convenience store. Anyway, you really do not see a big display of cigarettes at a convenience store.
Mr. Tobenstein: The Esso station where I buy my gas has a little kiosk when you go in. They have a lot of cigarettes, candies, and so on, there. One morning I went in and I bought my gas. I went to pay and I asked the young girl working there -- I do not know how old she was but she was probably around 18 -- "Do you mind answering a couple of questions for me?" She said, "Sure, no problem." I said, "What do you think about the advertising displays you have here in the store? Do you think that causes young people to smoke? What is your opinion?" She said, "No, I do not think so." She is the one who said to me, "The big problem is that parents are buying cigarettes for their kids." I said, "But you have all these different kinds of cigarettes all over the place here." She said, "Look, I work here all day long. I do not smoke because I do a lot of sports and I figure it is not good for your health so I do not want to smoke. I am here all day long looking at the cigarettes and it does not cause me to smoke." I thought that was a really good thing for her to say.
That is the way I feel. I do not smoke either. I work with cigarettes all day long. If I go into a store, I will not buy cigarettes because they come in a nice package. I do not drink either. I will not buy a case of beer. I think the decision is made to buy the product before you enter the store and not when you are there. The only thing that can happen when you are in the store is you may change your mind and take a Rothman's instead of a du Maurier because you have seen it plastered somewhere, but I do not think that will cause you to start smoking.
Senator Milne: I recommend that you read the transcript from the previous witnesses.
The Chair: As you all know, we have heard a variety of testimony on all sides of this issue. Let me assure you that your testimony will be given the same serious consideration that the testimony of others has been given. I thank you for coming and making the case for us this afternoon.
Mr. Dumulong: Thank you.
Mr. Tobenstein: Thank you.
The Chair: Our next witness is from the Ontario Korean Businessmen's Association. We have Mr. Joseph Chung. Welcome, Mr. Chung. Please begin with your presentation.
Mr. Joseph Chung, Membership Service Manager, Ontario Korean Businessmen's Association: Honourable senators, I should like to start by asking for your indulgence because this is the first time I have appeared before a committee like this.
I thank you for inviting me to provide evidence on behalf of the Korean retailing community with respect to this bill. I should like to begin by introducing our organization.
The Ontario Korean Businessmen's Association, or OKBA, is a non-profit service organization, founded in 1973 with just a handful of retail outlets, that has now grown, almost a quarter of a century later, to over 2500 retail stores. Of this number, approximately 1,900 are convenience or variety stores. This is 10 per cent or better of all convenience stores in the industry, and several times larger than all the chains put together.
OKBA's mandate is to further protect the business interests of members by negotiating as a buying group and by providing representation to government and other organizations. The annual sales of OKBA's member stores amount to approximately $600 million. Of this amount, 60 per cent is a direct result of tobacco sales. You may have heard previous figures of 40 per cent, but our retailers are smaller and more dependent on tobacco sales. If Bill C-71 becomes law in its current form, our retailers will suffer serious economic hardship.
The Minister of Health has stated repeatedly that Bill C-71 is a health bill. One of the mandates of the ministry of health is to protect young persons from the inducements to use tobacco products and to restrict access to tobacco products. We have no opposition to this mandate. In fact, our full support of this can be evidenced by our strong commitment to the Operation ID program. Some 90 per cent of our member retailers support this initiative. In a short while, we will have 100 per cent support.
We take no issue with the government's desire to protect the health of Canadians. We fully support the clauses of the bill which would restrict the selling of tobacco products to minors and impose strict penalties for violations.
OKBA's concerns are with the following specific areas of the bill. The first concerns teen-aged employees. The bill states that no person shall furnish a tobacco product to a young person. This is interpreted as meaning that retailers will not be permitted to hire teen-aged employees, as it will be illegal for young persons to sell tobacco products. The Minister of Health has assured us that this clause should not be interpreted in this manner. Health Canada's own information bulletin published in February of this year states that young persons will be allowed to sell tobacco products. If this is the intent of the bill, then logic demands that the bill be amended to clarify this issue so that there is no room for misinterpretation. If left as is, any future Minister of Health or government would be able to change the intent. Therefore, we believe the bill should be clarified in this regard.
Our second concern is with display restrictions. Retailers will be bound by new display restrictions so that only one package per brand of tobacco product may be displayed. This will require huge expenses to be incurred by the retailer with respect to storage space and inventory. Once again, the Minister of Health has assured us that it would be impractical to restrict displays of tobacco products to one package per brand. However, the same information bulletin published by Health Canada states:
This does not, however, mean retailers will be implicitly permitted to continue those current display practices...
With unseen regulations, there is still the real possibility of crippling restrictions on display. Once again, the bill should be amended to clarify the intent in order to avoid misinterpretation.
Our third concern involves arbitrary entry and search and seizure. Enforcement of this legislation violates freedoms guaranteed in the Charter of Rights and Freedoms. The law would provide for arbitrary entry and search and seizure without warrants. The bill should be amended to protect these inherent rights.
The fourth of the OKBA's concerns display allowances. In-store advertising and some displays are banned. In total, retailers receive approximately $60 million annually from tobacco manufacturers. OKBA's member stores receive approximately $8 million of that total figure. Independent convenience stores such as ours are basically mom and pop businesses which have been started by entrepreneurial individuals who have invested their entire livelihoods into their business. This money is needed to support these businesses. Taking away these allowances will cause serious economic hardship and force many to close down their business. We believe it is wrong for the government to restrict the entrepreneur from receiving money for the act of selling a legal product. This is simply quashing the spirit of small business.
The government should be able to justify how withholding money given for the display of tobacco products will protect young persons from the inducements of tobacco products. Tobacco products are legal. Selling to minors is illegal. There is no acceptable justification for this as we see it. Therefore, the bill should be amended and this punitive clause removed.
Furthermore, the bill does not provide for any transitional time for the retailer. For the retailer, the day this bill becomes law, it will be in effect and thus enforceable. The retailer, too, requires time to make any necessary changes to his or her business.
We believe that the initial intent of this bill can be preserved without creating undue economic hardship for independent businesses by working together. By destroying small business, government will not be achieving the intended mandate of the bill.
In conclusion, I should like to point out that the member retailers of OKBA are primarily first generation Korean-Canadian immigrants. English is not their first language. Therefore, it is difficult for us to understand laws that are unclear and ambiguous, let alone laws that are clear. We are not experts in legalese and feel the bill in its current form can be confusing. We wish to carry on our legal business activity. We believe that with amendments to the bill, we can do so.
We are imploring the Senate to help create a bill that will truly protect the health of all Canadians without forcing retailers from conducting fair business with unnecessary restrictions. We pledge our full support for a bill that will do just that.
The Chair: Thank you, Mr. Chung. It may be your first appearance before government, but if everyone were as clear and to the point as you, I can assure you that we would enjoy presentations even more.
Senator Beaudoin: I have a question about the search and seizure provisions of the bill. You say that it is against the Charter of Rights and Freedoms. Can you substantiate that?
Mr. Chung: From my limited knowledge of the law, the bill will allow inspectors to inspect as long as they suspect that a violation has taken place. They will be able to seize goods without question. It would be up to the retailer to make an application to get those goods back, without having a hearing or a trial to determine whether or not that retailer was in violation of the law. To us, that appears as though the retailer has absolutely no choice. An inspector can arbitrarily do anything he wants in the store.
Senator Beaudoin: Under the Charter of Rights and Freedoms, of course, the usual test is the test of reasonableness. In a free and democratic society such as ours, we are based on those two concepts. I understand from you that the right of inspection and the right to search and seize under clause 8 of the bill is not acceptable in a free and democratic society. First, there is a right to an inspection. It is not always a right to seize.
Mr. Chung: Inspectors may come in without any substantive information or evidence. They may have the feeling that a violation has taken place. Without a warrant, can they search and can they seize? I feel that is wrong. If they have enough evidence, they should be able to get a warrant. As the bill is worded now, retailers will have absolutely no choice in the matter.
Currently, with regard to enforcement officers and selling tobacco products to minors, we believe not enough care is being taken in terms of watching out for the interests of retailers. These enforcement officers can come in with the idea that a violation has taken place and act accordingly. If this bill allows them to search and seize without warrants, that will simply be too much to accept.
Senator Milne: As a point of information for you, sir, there are many acts of Parliament that allow for inspectors to come on to certain premises. I should like to quote from an Act for the Regulation and Control of Agricultural Fertilizers to which every farmer must live up, which states:
...an inspector may at any reasonable time
a. enter any place in which the inspector believes on reasonable grounds there is any article to which this Act applies;
b. open any package found in that place...
c. examine the article and take samples thereof.
This is not a provision that has come in out of the blue. This is something that is quite common in Canadian law. Farmers undergo it all the time, as do fishermen. It is not a right of the government or an inspector that is used unreasonably. If they believe there is any sort of criminal activity going on, then they must have a warrant. That is just a matter of clarification.
Senator Nolin: In your brief, you refer to restrictions on display, clause 33. Can you be more specific on what you want us to change in the bill?
Mr. Chung: We should like the bill to include a clause indicating that there will be minimal costs incurred by the retailer. Even if there was a restriction to two packs, it would still require retailers to change their entire display.
Senator Nolin: Where do you see that there will be a restriction to one pack in the bill?
The Chair: It is actually a potential. It does not actually indicate that. Clause 33 (f) reads:
respecting the display of tobacco products and accessories at retail;
Mr. Chung: That is right. Nowhere does it say "one." That is the potential. Even if it says "five" or "ten", it is still restricting the display. We are concerned about that.
Senator Nolin: You referred to an information document from Health Canada. Do you have it in front of you?
Mr. Chung: I attached it to the brief.
Senator Nolin: Yes, but I want you to look at it.
Mr. Chung: I have one.
Senator Nolin: The second paragraph includes the phrase "during consultation with the retail sector on the blueprint."
Have you been consulted?
Mr. Chung: No, we have not been contacted at all. We have not been given an audience. I feel that everyone else has but us.
The Chair: Thank you, Mr. Chung. As I said at the beginning, your presentation was very clear, and we appreciate your attendance this afternoon.
Our last witness this afternoon is Dr. Brian Smith from the Department of Psychology at Concordia University. Welcome, Dr. Smith. We would ask you to begin with a few opening comments.
Dr. Brian Smith, Department of Psychology, Concordia University: After the previous speaker, I do not know that I can live up to the standard of brevity, but I will do the best I can.
I thank you for extending me an invitation to appear before you today to talk about issues pertaining to dependency and initiation of tobacco use. That is an area in which I have some expertise.
I am a clinical psychologist working in the Montreal area. I have been working there for the last 10 years. The large bulk of my practice represents working with adolescents who are dealing with a whole host of difficulties -- motivational problems, drugs, and alcohol. Tobacco use is one of the many different things in which these individuals are involved. On the other hand, I have some academic experience, having been an adjunct associate professor at Concordia University for some time active in basic research looking at issues pertaining to the initiation of alcohol and drug use. I have some expertise there with regard to the basic science. Not only am I part of the cliché of the ivory tower, but I get down into the trenches and get my hands dirty.
Having said that, I am not sure what I can say that you have not heard already. You have heard from a series of individuals who have presented you with evidence and information pertaining to the onset of tobacco use. You have heard one side and another. I think you have heard the statement about the white hats and black hats. I should like to think that mine is a very pale grey, without a doubt in the middle, but I will leave you to judge what colour it may be.
You have heard about different things which lead to the onset of tobacco use. You have heard about peer pressure, although I personally prefer the term 2 peer affiliation" rather than peer pressure. You have heard of rebelliousness and individuals searching for self-identify. You have also heard about advertising. From my perspective, the evidence pertaining to advertising in contributing to the initiation of tobacco use is slim.
You heard a presentation earlier. I hate to be in a position of having to debate against them because they do not have the opportunity to debate with me, but that is one advantage of being at the end of the parade. When you look at the bulk of the evidence, most of it is around the question of whether teens recognize advertising. Are they aware that the advertising is there? Do they have product information? In other words, are they aware of product class? Those were the terms used last week. The answer to that question is overwhelmingly that they do have that information. Not only do they have that information, they are familiar with it, they can recite it fairly quickly, and they acquire that information at a relatively young age.
However, that is true for non-smokers as well. In individuals who have that awareness, the rates are in excess of 80 per cent, as specified before. Smoking rates are not anywhere near that. There is no evidence -- at least, not yet -- linking simply knowing about advertizing, about the presence of it and about the information pertaining to it to the initiation of use. A variety of studies have attempted to provide linkages between whether or not an individual or group has a certain percentage of awareness relative to whether or not they happen to be smokers or non-smokers. The bulk of the studies that you will see are referenced as and are called cross-sectional.
Cross-sectional studies are basically that. You are taking a cross-section of a group of individuals. They may be at varying ages, but you are taking a cross-section. When you take that cross-section, you are looking at one variable and another variable simultaneously and attempting to see whether or not these two things are related to one another. The problem is that cross-sectional studies do not tell you anything about directionality. They do not tell you anything about whether the exposure to the advertising occurred first and then that contributed to the use of the tobacco later on or whether or not individuals who are already either contemplating or themselves starting to experiment with tobacco just happen to be paying more attention to the advertizing. You probably will not have them because you have briefs which are reviews from of all of these documents, but when you look at the actual papers themselves, you see that the authors of these studies actually make that type of proviso in their discussions by saying that cross-sectional studies do not really get at causation. They show that two things may vary together but do not tell us whether there is a linkage between them, and the vast majority of that research does that.
Information about product class does not even depend on advertising. The example that I give to you for that is marijuana. Depending upon the surveys that may have been done, anywhere from one-third to 50 per cent of youth have tried marijuana at least once. While I have no information or concrete data that I can give you, I would hazard a guess that the vast majority of adolescents are aware that marijuana is out there. They know it is there and what it is about. This is a product class. Yet, there is no marijuana advertising. We do not see marijuana billboards. Unless I have missed it, I have not seen a marijuana festival of the arts. Yet, information certainly is disseminated among youth in this regard. As well, somewhere in the vicinity of 16 to 19 per cent of youth are using marijuana regularly. Advertising in this particular case does not even exist; yet individuals are using the product, the effects of which are substantially different than tobacco. The fact is that they have this product awareness.
You will have to decide on the weight of the evidence. We have limited scientific information. We have some longitudinal data that has been done which is presumed to give us some look over period of time. The longitudinal data last failed to show that, yet the longitudinal data has allowed us to see things which are quite complex. They have been indicated here before, as I said, searching for identity, searching for self-identity, trying to establish independence, peer affiliation, and so on. Behavioural science has been able to find this, but in longitudinal studies has not been able to find an impact on tobacco advertising.
Second, those particular cases may have been discussed here, but I mention it to summarize more than anything else. The examination of the effects of different types of restrictions in other places have failed to provide any kind of predictable evidence suggesting that they would work. Anti-tobacco advertising generally is ineffective in producing any changes and it has been singularly ineffective to date. When you ask youth specific questions pertaining to whether or not they think advertising is playing a role, they say, "No." When you combine all of this, you are left with a situation which suggests that right now we do not have any good information. It could be that some studies may appear. The prediction is based on what we have to date. Based on the scientific literature, those provisions are likely to be ineffective.
There are other portions of the bill which relate to accessibility and restrictions on getting hold of it. There are some small pieces of evidence that suggest that this play have some impact, but I am hesitant to say that it will because in the end it will come down to how well these provisions can be implemented.
We have already heard discussions about where kids are buying and who they are buying from. If I recall, some information that I came across my desk, somewhere in the vicinity of 29 per cent of youth who are just starting out smoking buy it in a store the rest of them get them from other places. Of adolescents who acknowledge the fact that they are regular smokers, only 65 per cent of them buy from stores. They also get them from other locations. Where these other locations are, I do not know, but clearly there are other sources that seem to be available to them. Again, I come back to the issue of marijuana. These sources do not necessarily have to be retail outlets.
With that, I make myself available to answer any questions you may have.
Senator Gigantès: Could you not convince tobacco manufacturers that they are wasting their money in advertising, then?
Dr. Smith: I could do that if someone gave me the mandate to do so, but I have not received one.
The problem is that I am not in a position to make a statement with regard to what tobacco manufactures are doing or not doing. I can only address those issues which relate to what I believe or what I read.
Let me rephrase that perhaps more specifically. What I see in the literature are those things which appear to be related to the initiation use. If that is the case -- and as I said, at the moment it would appear to be that advertising is not there -- I cannot address the motives of tobacco companies, advertising executives, or any of those who may decide that that is where they want to stick their money.
Senator Gigantès: The Liggett Meyers case in the United States has revealed documents that a tobacco company, namely, Liggett Meyers, thinks that its ads should be directed at the young. Presumably these people, who make a lot of money, are not just throwing their money away on something useless. They must have used psychologists.
Dr. Smith: Let me address that in several ways. First, because people have money to burn does not mean that they know where they are spending it. As one who watches sports as a fan and not as an expert, I often see large contracts being offered to players and I wonder why they are putting their money there. Let me be more serious for a moment.
In behavioural sciences, one of the things that comes up in many places -- and, we see this often in areas pertaining to drug use, and it is something that has been alluded to here -- is the idea that it makes so much intuitive sense it just must be.
In the field that I come from, we often see that where we have a notion that the belief is that it just must be that way. However, when you look at the scientific evidence, you discover the data does not support that.
To give you an example of that, when you look at relapse regarding drugs, including tobacco, one of the ideas that makes so much intuitive sense is that individuals relapse because they have this craving or an intense desire to want to use and that desire then leads to use. A scientist in this area said that when the urge to use is greater than the determination to stop, relapse occurs. This makes perfect sense.
Senator Gigantès: This is tautology.
Dr. Smith: The problem is that when you look at the actual data, you look at individuals who relapse and interview them and determine that only 7 to 11 per cent of alcoholics who relapse say that craving and urge was an important factor at the time they relapsed. When you look at tobacco users, only 23 per cent report that urge or craving was important. When you look at heroin users -- and this is presumed to be the prototypical drug of abuse -- 0 per cent of them report the craving and urge.
I bring that up because here is a case where we have some intuitive sense and we believe it to be the case. However, when you look at the data, it is not.
Senator Gigantès: What do they say is the cause?
Dr. Smith: To be very honest, most of the time they say they do not know.
I had a client recently who was struggling with a marijuana problem and relapsed and said that "I was not really thinking about it. A friend had asked me to get some for him. I said `no,' then I said `yes' because he was a friend. I was there and as I was buying for him; I bought for me without really thinking about it." He then got home and it was there and he figured, "Well, it is here. I might as well use it."
This is an individual who had been struggling with this to the extent that he wanted to stop. There was no premeditation or great thinking that this would happen. I only bring up that case because it was an illustration of the concept that just because it makes a great deal of intuitive sense does not necessarily mean that it is really there. One needs to rely on the evidence that you see. In the absence of that evidence, maybe it will be there at some point in time but for the moment the likelihood is that it is not. Just because advertising executives and tobacco companies are spending their money there, it would not be the first time that people make mistakes. I am not saying that they do, but on the basis of the scientific evidence, it would seem like perhaps they are -- at least, if that is the intent.
Senator Pearson: The human capacity for self-delusion is huge. Reports as to why one why did or did not take relapse are notably unreliable.
Dr. Smith: This is not exactly a new area in the behavioural sciences and the study of drugs. In particular, where we have much information pertaining to self-report and the accuracy of self-report dealing with individuals who were in treatment for either alcohol, drugs or other substances and their ability to be able to provide accurate information about what is going on, there is a variance.There is no question about that.
It turns out that if the de-briefing is done well, self-reports are not as inaccurate as you might think. There is evidence in the behavioural sciences to support that idea.
I do not disagree with you to the extent that there is some error there and self-delusion does play a role. However, there is data to prove the self-reports are not necessarily as inaccurate as they seem.
Senator Pearson: I have heard many reports about craving, but that is another issue.
I wanted to address the question of tobacco advertising over all and the problem of developing studies in the social sciences that look at the issue with the accuracy which is necessary. It is indeed difficult to find causal relations, as Justice McLachlin said, between a cigarette lighter and a child taking up smoking. That is something we need to accept. It is almost impossible to make that kind of causal link.
I brought this up last week, too, but it is something that struck me because I have had the opportunity, having lived in other cultures, to see the different impacts of media images. I am particularly interested in young people and the question of body image. In the former Soviet Union where I lived for a number of years, anorexia was not a problem at the same time that it was becoming a major problem in North America.
In my view, there is no industry more totally dependent on advertising and media image than the fashion industry. No one, particularly none of the women in this room, is likely to deny that. If you have lived in other countries, you know how much your eye is trained by the images that you see.
It is not convincing to me to say we can find no causal connection between "A" and "B" and so none exists. I am much more convinced by this overall image issue and the fact that young people are attracted into smoking on a regular basis because of the images which are used. That is more persuasive to me than the opposite argument that there is no real causal connection. Advertising does make a difference.
Dr. Smith: I certainly cannot respond to the issues pertaining to fashion because I do not know that area.
Senator Gigantès: Perhaps you should look at that, rather than at sports.
Dr. Smith: It certainly might be more visually interesting.
Let me raise one element which I do not think has been heard here yet. There is a presumption about the information that individuals see in an image, of what they see in a so-called advertisement. There are a whole host of suggestions and statements made about what we think youth are getting out of it and what we think they are seeing in it.
There is one piece -- and I freely admit that it is one piece -- that calls into question the straight generalities about what is conveyed by these images and by the totality of that imagery. When adolescents see what they perceive as their own peers in tobacco advertising, they tend to report those individuals as being less mature. Yet we continually hear that adolescents are perceive smokers as adults, doing adult things. Yet they describe images of their peers as being less mature and that seems to fly in the face of the other view.
Senator Gigantès: Is there a study to that effect?
Dr. Smith: There is and it has been listed in five or six documents which you have received. The first author is Pechmann. You must read the whole report. Oftentimes, people only look at the abstract or read one portion of the discussion. You must look at the different ratings reported by adolescents to see that they tend to report such images as being of less mature peers. That seems to fly in the face of the commonality of the idea that we know precisely what teens are getting out of advertising images.
I am not saying that we are entirely wrong, but it is a far cry from rubber-stamping their outlooks and their interpretations unless we have the documentation to support it.
Senator Pearson: The senators and the prior witnesses all understand that this is an extremely complex issue. There is one other element which you, as a psychologist, might help to clarify. Among the qualities of adolescence which purportedly predispose them to picking up smoking, we have not talked about the issues which I see as having the most predisposing effect. These relate to the anxiety and the ennui or boredom of the adolescent.
Nicotine, as I understand it, is the kind of drug that can be calibrated to whatever mood you are in. That is, if you are really bored, it can give you a pick-up. If you are anxious, it can give you a calming effect. Once you have been lead into that usage, by whatever reason, you are in. Then you are predisposed to be maintained in that kind of thing.
I am looking now for answers. I do not think you would disagree that smoking is not good.
Dr. Smith: Absolutely not.
Senator Pearson: In the long run, we are looking for answers. As a public, how are we to address this problem? Do you have any light to throw on that?
Dr. Smith: Oh, yes. I watch TV, too. I get cable and CPAC is on. I had a sense that that question would arise.
There are a variety of ways that I would approach the question. One of my many hats is that of an educator. I think education is an important role. However, the education which should be imparted to individuals is less about tobacco per se and more about being comfortable with self.
I know that sounds vague. However, we often see lifestyle education in our curricula. In programs that are conducted at the community level, whether directly in the schools or in community organizations, there is a history of some success with these lifestyle programs when they deal with issues pertaining to self-confidence and pertaining to a sense of identify which is defined by your own self as opposed to by a group with whom you wish to affiliate. In this case, we are talking about smokers. Perhaps they are also individuals who are using other drugs or whatever the case may be. Such community and school programs are effective in reducing drug use and in reducing alcohol abuse. I do not have any information per se but I would assume that they would be effective in tobacco uses use as well.
This direction should be followed. Funds should perhaps be made available to direct people in this fashion.
I mentioned during my short presentation that issues pertaining to restrictions have some value here, assuming that they can be implemented.
You mentioned before that individuals get used to this particular effect and they desire then to continue to use it. However, if you make it difficult or awkward for individuals to get that product, the individual will decide it is not worth the trouble to participate. Issues pertaining to restrictions and education have a likelihood of success because they address the primary issues. They address the things which have been identified already in those longitudinal studies which have been done and which look at things related to the onset of smoking.
It is like going to the grassroots. That is a term with which most people are familiar and I need not explain it. When you go to the grassroots, you have a better chance of making substantive changes, rather than superficial changes which do not address the real issues.
If we are talking about issues pertaining to personal lifestyle, rebelliousness, self-identify, and so on, one of the reasons anti-advertising campaigns are relatively ineffective is that it is hard to get that message across in 30 seconds.
Senator Jessiman: Could you explain your position at the university? Do you lecture part time?
Dr. Smith: Yes.
Senator Jessiman: Do you have a practice as well?
Dr. Smith: I have a private practice and, as an adjunct associate professor, I am participating in a research program with other individuals at Concordia University. I am supervising students and directing undergraduate students as well as lecturing courses in motivation, alcoholism and the psychology of drug dependence. I have also done that at McGill University and Vanier College in Montreal.
Senator Jessiman: You said you worked with adolescents?
Dr. Smith: A large portion of my practice is with adolescents, yes.
Senator Jessiman: How long have you been doing that?
Dr. Smith: I have been a member of the professional order in Quebec for 11 years.
Senator Jessiman: You used a good example about marijuana.
Dr. Smith: I assume that is also an inside joke.
The Chair: This same committee dealt with the most recent narcotic and food and drug bill. Many of the senators here thought there should be some significant changes made with respect to the decriminalization of marijuana. Senator Jessiman, in particular, was a very recent convert to that belief.
Senator Jessiman: That is true.
You say it is similar in that children start when they are young. Do they start smoking cigarettes first, marijuana first, or both at the same time? We have been told that at six to eight years of age, children are starting to smoke.
Dr. Smith: These are happening all at the same time.
Senator Jessiman: They are smoking marijuana as well?
Dr. Smith: Perhaps not as early as that. I suggest that individuals are starting to smoke marijuana as early as 12 years of age.
Senator Jessiman: Are they starting to smoke cigarettes earlier?
The Chair: We have heard evidence of as early as 8 to 10 years of age.
Senator Jessiman: So they start both very young.
Do you have any statistics on whether the percentages are the same?
Dr. Smith: No. The only information we have is with regard to what might be called "lifetime prevalence." In other words, in this particular case the description is whether someone tried it once. The other information we have is whether someone is using it regularly, and "regularly" is defined as at least once a month and perhaps more frequently.
In those particular cases, just under 20 per cent of individuals are using it regularly. The use rates for tobacco are higher in youth populations than for marijuana.
Senator Jessiman: I read somewhere that cigarette smoking is more addictive than marijuana. You spoke of a person who had a marijuana problem, so obviously they were addicted.
Dr. Smith: You are asking me about addiction, which I also knew was coming.
The term "addiction" is not used in the behavioural sciences and in the mental health practitioner field. There are two reasons for that, one being less important than the other but, no less, it applies.
The first reason is that it has become a pejorative term, which means that it has a negative connotation which many in the dependency field felt made it difficult for individuals to deal with the problem in a more appropriate or healthy way.
It was also felt that the term "addiction" was not accurate, that it did not really describe what was going on.
The World Health Organization produced and periodically revises a document which I believe is called The International Compendium of Diagnoses. It is currently in its tenth edition. The American Psychiatric Association produces a document called The Diagnostic and Statistical Manual. It is based on meetings with mental health providers, psychiatrists, psychologists, educators, and so on, to come up with information on how to diagnose mental disorders. It is a bible containing every existing disorder, the fourth edition of which recently came out. In neither of those documents will you see the word "addiction." You will rather see the word "dependency."
Having said that, you must understand that when we talk about dependency we are talking about individuals who have a compulsion to continue to perform a particular behaviour, which could be anything. It could be the behaviour of using marijuana; it could be the behaviour of taking heroin; it could be the behaviour of engaging in sex; it could be the behaviour of gambling. Individuals can develop dependencies on all these things. I saw a paper presented at the American Psychological Association meetings in Toronto this past summer that involved on-line Internet dependency.
Individuals can develop dependency on all those things. If the question is whether tobacco use leads to dependency on tobacco, I have to answer yes, in much the same way that individuals can develop compulsions to the development of a whole host of other behaviours, including marijuana, alcohol, gambling, and sex. The behavioural manifestations of what people do are often indistinguishable.
I hope I have addressed your question.
Senator Jessiman: I do not know whether you were here earlier this afternoon when we were shown ads that were allowed under the old law and not allowed in 1987. They showed athletes smoking cigarettes. All of that has been eliminated. They said it was really a loophole for sponsorships.
Tobacco companies sponsor over 300 organizations in Canada. They support fireworks displays, theatres and all kinds of sporting events with amounts of money far greater than anyone else will give. We are all agreed that the events they are supporting are good.
These events will either go out of business or will have a very difficult time raising replacement money. Governments do not have the money to help them. Will we lose all the good things that this money supports by removing the names of these companies from them? On balance, are we doing the right thing?
Dr. Smith: To be honest, senator, I do not know if that is a fair question. That is a policy issue that is within your domain.
Senator Jessiman: You are an expert. You are the only one who gave us that example. You said that there has been no advertising about this other drug, yet the kids are using it. Here we are saying, "You must get rid of all of this reflection of the tennis player having a cigarette." That is gone now. You now have the car driver. He still has Rothman's written on his jacket, or on his car, or on his boat, or whatever. There is also the du Maurier golf championship or the tennis sponsorship. I asked persons of my age, "When I say the word `du Maurier,' what does is it mean to you?" They say, "Golf or tennis." When I ask younger children what it means, they say "Cigarettes." I then ask them, "Do you think it makes you smoke cigarettes?" They say, "No."
You have obviously done a lot more work with children and the effects of this type of advertising. We will be eliminating the names of these companies that have a legal business. That is the problem.
Dr. Smith: Again, I cannot make any comment with regard to issues of balance. At the present time, I do not believe there is a significant amount of evidence to suggest that those provisions which are related to that will make any difference. I do not believe there is sufficient evidence at this point upon which one could make a prediction that it would.
Senator Jessiman: I thought that would be your answer. If that is the case, it is too bad. We will cause a lot of problems across the country for the next three or four years because these people will not have the money to do what they want to do.
Senator Nolin: Thank you, Dr. Smith, for your expertise. I will be very short.
As an academic, you referred to a literature study. Could you explain what it is? When you are talking about evidence, that is what you look at. The rest is less.
Dr. Smith: When you are looking at a variety of documents, you look at the sources and where they are coming from. Again, I suppose you are inundated with paper.
Behavioural scientists tend to look at things which are termed "peer review". In other words, we tend to be not concerned but we take less seriously documents that have not undergone scientific peer review because then there is no way for any individual to make some kind of evaluation with regards to the scientific soundness of the methodology.
When a document is submitted for publication to a scientific journal of some sort, usually it goes out to individuals who work in the area and who will eliminate the document based on its scientific soundness to determine, first, did they do a good job? Did they conduct good science? Does the data that they collected emanate from the work of good science?
The second part that they look at is: Did they look at the context with which they were doing their work with the existing literature that already existed? In other words, did they pay attention to everything that potentially was out there in the literature? Did they take into consideration all of the possible documents that exist which could potentially influence the work they did?
Finally, the peer review process involves taking a look at the data and then determining whether or not what the individual concluded from that data was justified. In other words, did they make their concluding statements in a way that accounted for other alternative interpretations? In many cases -- having had many articles of my own come back from peer review, which is sometimes not a very pleasant process -- when it comes back, often times the reviewers will say, "We disagree with your interpretation but we think you must acknowledge the fact that "X", "Y" or "Z" is a possibility. We should like to see that reflected in the discussion."
You have a situation where there is a rigorousness associated with the presentation of material. The problem is that in this particular avenue, you have a large number of commission studies and contracted work. I am making no aspersions on the quality of the individuals doing that. The downside is that, unfortunately, no peer review process occurs. It is left to you to decide whether or not you believe the science is good and whether you believe that the data came from an appropriate running of the experiments or however they were done. You must decide whether the conclusions drawn from those studies are correct.
In many of the documents that you have, you do not even have the opportunity to do that because what you are getting is what someone else believes to be the case. Frankly, you are getting that from me, too; I do not exclude myself in that. However, when you cite a variety of documents coming from contracted or consulting firms, or government, or even tobacco companies, these are not peer review documents. As a behavioural scientist, I tend to place more emphasis on peer review simply because there is a built-in, evaluative process which already takes place as part of the system.
Senator Nolin: Would it be possible for you, on short notice, to provide us with a peer review list of the documents on which you based your opinion?
Dr. Smith: Yes.
Senator Nolin: How fast?
Dr. Smith: Just a listing of the titles?
Senator Nolin: Yes.
Dr. Smith: I could probably do that before the end of the week.
Senator Nolin: Yes, at least a bibliography.
Dr. Smith: Contained within the list will also be non-peer review documents. I keep a database that is hard for me to extract. That would take more time, but I could give you a list of everything pertaining to that.
Senator Nolin: We have received tonnes of documents. You put it very well. How do we cut the mustard?
Senator Kenny: I think Senator Nolin wanted to have the list of peer review documents.
Dr. Smith: That would take me a little longer.
Senator Kenny: What has been offered is a list of the total documents.
Senator Nolin: No, I will add what he said to us at the beginning of his testimony. He said that advertising will not achieve what it is supposed to achieve.
Senator Kenny: But, Senator Nolin, you have asked for just the documents that have peer review. His answer was, "I can provide you with that list together with the other documents. It will take a while to get it."
Dr. Smith: I can provide the total list in a short space of time. To provide only the peer review list will take me longer because I will have to cull those documents from my database.
Senator Kenny: That is what Senator Nolin wants.
Dr. Smith: I can do that but it will take me longer to do so.
Senator Kenny: You just want the peer review documents, is that right?
Senator Nolin: Yes, the documents upon which we can we base our decision -- that is, the peer review list.
Dr. Smith: I can probably provide you with that at the beginning of next week.
Senator Gigantès: These documents that constitute peer review will be all over the shop.
Dr. Smith: Well, "all over the shop" in terms of issues pertaining to the initiation of tobacco use.
Senator Gigantès: Some genuinely, scientifically and honestly will disagree with one another an awful lot, would they not?
Dr. Smith: Yes.
Senator Gigantès: For us mere mortals, that list is not of very much use, since we are not peers of the group that participated in this peer review.
Senator Nolin: At least we can discard the rest and only focus on that list.
Senator Milne: This list represents one side of the opinion.
The Chair: It is perfectly appropriate for Senator Nolin to ask for documents if Dr. Smith can provide the documentation -- the sooner, the better. This committee would be pleased to receive it.
[Translation]
Senator Nolin: Has the Department of Health ever called upon your services?
Dr. Smith: No.
Senator Nolin: Were you consulted recently by the Department of Health?
Dr. Smith: No.
Senator Nolin: Did you offer your services to the Department of Health?
Dr. Smith: No.
[English]
Senator Moore: Dr. Smith, in your opening remarks, you said that anti-tobacco advertising is ineffective. I was surprised to hear that because I thought that might be doing some good. What is the basis for that statement? Is it part of these peer papers? Is it a study? Is it current?
Dr. Smith: In a couple of examples where this has been used, including in Canada, it seems that whether or not there was an aggressive anti-tobacco campaign, one did not see substantial changes in onset of use correlating with those campaigns. Similar broad-based media campaigns in other places have not been effective in producing any substantive changes. These are not peer-reviewed scientific papers. These are simply statements relating onset of these particular campaigns with usage rates during the same time.
Senator Moore: Are these current studies?
Dr. Smith: No.
Senator Moore: How old would they be?
Dr. Smith: Certainly the ones examining usage rates in Canada with the Health Canada campaigns are probably from the last three or four years.
Senator Milne: Dr. Smith, you were talking about the lack of longitudinal studies on how effective advertising is compared to the onset of smoking. Were you here when Dr. Best gave his presentation?
Dr. Smith: I heard part of it, yes.
Senator Milne: He spoke of the longitudinal study by a Dr. Pierce down in California. Have you seen that?
Dr. Smith: I have seen some of his work. I do not know the specific one to which he was referring.
Senator Milne: Perhaps we could get a copy of just this back page for Dr. Smith because, as another expert in this field, I should like your literature review of it.
Senator Gigantès: Do a peer review for us.
Senator Milne: Right.
Dr. Smith: I must admit that I am somewhat at a disadvantage because peer review usually allows me the opportunity to review the document in some detail. I do not know if I am being given the opportunity to do that. Since the document is one which has not yet appeared in the press, I would not have had an opportunity to look at it. I do not know if I am in a position to be able to give you that.
Senator Milne: You are fudging.
Dr. Smith: I am telling you the truth.
Senator Milne: That is true. Have you heard of Dr. Pierce before?
Dr. Smith: I have seen some of his earlier work. Some of the work he has done is to survey usage rates over a period of time, using some national data that is collected by telephone surveys conducted in the United States. He has published a number of papers which have purported to look at historical use. One particular case that comes to mind is a piece of work where he looks at the onset of tobacco use in young women and starts from about 1944 and follows it up to sometime in the seventies or eighties. I do not recall the exact date. He reports an increase in tobacco use that occurs somewhere in the vicinity of 1967-68 and claims the reason for that increase is exposure to advertising, particularly with regards to tobacco advertising that was focused on women. His conclusion is that that is the case.
Unfortunately, when you look at the totality of women's tobacco use, you see that during the same period of time they had an increase in alcohol and drug use, and increases in a lot of other behaviours. It is not necessarily exclusively because of seeing an ad for Virginia Slims that would result in their drinking more alcohol, yet these things are happening simultaneously. That is just one piece of work. He has done some more historical analyses as well, looking at different issues pertaining to the awareness of tobacco advertising. As for this particular study, I would need time to look at it in some detail.
Senator Milne: Could I perhaps summarize your view of Dr. Pierce's work as a rather mixed review?
Dr. Smith: No, I do not know that I would say that. I would say that perhaps when one looks at data, the likelihood is that one can come up with a variety of different interpretations of that data and give weight to different interpretations. Others might be equally true but weight is given to one.
Senator Beaudoin: I should like to return to the question of sponsorship. Many witnesses have said that with this bill, it will disappear, but that is not true because clause 19 says:
No person shall promote a tobacco product or a tobacco product-related brand element except as authorized by this Act or the regulations.
What this bill is about is to regulate and to restrict, to a great extent, is sponsorship, promotion, and so on.
This being said, I should like to come back to the question of the Grand Prix and the jazz festival. I am not an expert at all but I am inclined to think they will not disappear because there will not be a total ban. It is a partial ban, a restriction. I should like to know from an expert what will be the result of those restrictions. If it cannot appear on page 1, it may appear on page 2. If it cannot appear with big characters, it may appear with smaller characters. In my opinion, the debate is much more refined than that now. After a few days here, I have come to the conclusion that the sweeping statements that are made are usually quite exaggerated. We must look at the bill as it is.
I do not know what the influence is on young people of promotion, advertising and publicity, but if it is not that strong -- and, you seem to be of that opinion -- then this bill will not change a lot. What is your reaction to that?
Dr. Smith: I would agree with the second part of your question. The available data at the present time does not suggest that it is an important factor in the initiation of use.
Senator Beaudoin: It is not?
Dr. Smith: It is not. Therefore, changes in regulations associated with that are not likely to be relevant. I am basing that again exclusively on the availability of the information we have at the present time.
Senator Beaudoin: Let us say that it is not very strong. We know that it will be restricted to a certain extent but not totally. The influence will not be so strong.
Dr. Smith: It is not strong to begin with, senator -- at least based on the information we have so far.
Senator Beaudoin: It may be that the change at the end will not be very large.
Dr. Smith: If I had to make a prediction based on evidence we have right now, I would have to say that I do not think it would make that much difference. The presumption is that it would still be available in some sense. You would still have a scenario whereby you have authority figures, parental groups or what have you, that say, "Do as I say but not as I do." I am not suggesting that will have an impact. I do not know that it will but it certainly fits in with the concept of rebelliousness against authority. Again, I do not know that it will be an issue but it is conceivable as much as anything else.
Senator Kenny: How much of an impact results from peer pressure?
Dr. Smith: Again, I use the term "peer affiliation," which is a substantive factor to the extent that it is not a case where individuals are pressured to use. I do not think it is a case where any teen is exclusively pressured to smoke or get out of here.
Senator Kenny: How much of an impact is rebellion?
Dr. Smith: Based on the data we have seen, my understanding is that it is a substantive one.
Senator Kenny: How much of an impact is wanting to look like an adult?
Dr. Smith: I do not know. It is not an issue of wanting to look like an adult; it is an issue of searching for self-identity. Those two things may not be the same.
Senator Kenny: How much of an issue is self-identity?
Dr. Smith: My understanding is that it is a fair one.
Senator Kenny: The point I am trying to make is this. A variety of witnesses who have come before us have indicated that there are a whole range of factors that affect smoking and that cause young people to start smoking. For you to say to Senator Beaudoin that promotion or advertising will not have any impact surprises me. Is it conceivable that together with these other factors we have been discussing, promotion or advertising may add to the cumulative effect and therefore be part of the overall decision-making process?
Dr. Smith: Certainly, it is conceivable. However, I must clarify that. At the present time, in terms of the role in which advertising has been identified, I come back to what I said to the senator. My prediction was based upon the available evidence that has been presented thus far in terms of what the literature says.
Having said that, the problem is that we do not know yet. We do not have any solid data presented within the context of the scientific literature which says that advertising does those things.
Senator Kenny: It is a mug's game that the cigarette companies play with us. They come here and say, "We are not advertising to go after youth. We are going for market share." Yet, we know that 40,000 Canadians die as a result of smoking. They are replaced by young people in every case. These folks are intelligent people spending their money wisely on behalf of their shareholders. They are picking up young people one way or the other. We know there are a lot of factors that impact on it. We know it is complex.
The fact is that you cannot clearly identify a causal relationship with this one component. Equally, you cannot show us that there is no causal relationship with this one component. Furthermore, you suggest to us that there are several causal impacts that help make the decision.
I am concerned because the gist of your testimony to Senator Beaudoin was: "Do not take advertising and promotion too seriously." Even if it is only a 10 per cent component in the decision-taking process, that is significant.
Dr. Smith: I am willing to concede that it represents a portion of a component, simply because it is there. During the course of the last 20 years of research, the amount of that component has not been determined. On the basis of that, it is left to policy makers to decide whether they wish to make legislation based on an unknown quantity.
Senator Kenny: Can you help this committee with the amount of the component that peer pressure or self-identity provides?
Dr. Smith: No, other than to say it is quite substantial over a period of time. Researchers in different time periods over 20 years in different countries have repeatedly and quite regularly identified peer affiliation, rebelliousness and searching for self-identity. This is not an isolated finding; they have come up with it repeatedly. It comes up all the time. The other one has been difficult to get at.
Senator Kenny: I accept that. Can you put a number on it for us?
Dr. Smith: No.
Senator Kenny: Would you agree that the bill would be improved if, in a portion of it, there was an education component to deal with peer pressure, self-identity, or some of the other issues you are talking about? Is one of the deficiencies of the bill the lack of educational programs, peer group programs or community-based programs to deal with smoking?
Dr. Smith: In terms of what kinds of things should be done to address the issue of smoking initiation, I think it has been demonstrated that those programs would have an effect.
Senator Kenny: Would you be more enthusiastic about this bill if you saw those elements in it?
Dr. Smith: I am neither enthusiastic nor non-enthusiastic. There are segments of the bill that likely will have some impact. Do I think in its totality it will make a difference? I think the restriction parts of it will. If there are additional amendments which allocate funds to community-based and school-based programs, then these things have the potential of having some impact, simply because we already know that they are the things which get at the root of why individuals pick up tobacco smoking.
Senator Kenny: What you think is important is that there be a multifaceted approach to the problem and that we not focus just on promotion and advertising. Is that right?
Dr. Smith: There are two ways to look at this. If you are asking me what I think a tobacco type of program should be, then, without a doubt, I have been consistent with that.
Senator Beaudoin: We have been here for more than one week. We have asked these questions of each of our witnesses. Thus far, you are the only one who has come to the conclusion to which you have come. You may be quite right. I am not an expert at all on this subject. I would like to know why you have come to that conclusion. All the other witnesses have said, "We just do not know the cause and the effect. We cannot know." I should like to know a little more about why you feel so sure about this.
Dr. Smith: What I am saying to you, senator, is not so much that I am so sure that it is not a role. What I think I have been consistent in saying is that at the present time we have no evidence to demonstrate it.
Senator Gigantès: The ultimate in peer review is Descartes' behaviour. He used to sit with his feet on a pile of books. One of his students said, "Master, why do you have your feet on these books?" He said, "They are by other writers. If they disagree with me, they are wrong, so why should I read them? If they agree with me, there is no point in my reading them."
If advertising does not have much effect, or if it might not have any effect, would you say that the state should not forbid the advertising of marijuana?
Dr. Smith: Marijuana is an illegal product, senator.
Senator Gigantès: It is an illegal product because we say it is an illegal product. There are people who say it is no less noxious or no more noxious than tobacco and that tobacco gives you cancer and that it has not been demonstrated yet that marijuana can cause cancer. Why should we restrict advertising that illegal product?
Dr. Smith: When you make it legal and request my opinion on the decision to make it legal, I would be more than happy to give one. To be very honest, senator, I think I am fair in not responding to that question.
Senator Gigantès: I think so, too. I have been a university dean, and the most vituperative people in the faculty are historians. I am one of them. The next most vituperative were psychologists, but you are an exception to that rule.
Have you ever done a study that has been sponsored by a tobacco company?
Dr. Smith: No.
Senator Gigantès: I am glad. Thank you.
The Chair: I will conclude with just a question of my own, Dr. Smith.
Do you feel the same way about all advertising that you feel about tobacco advertising? I will put this question in context.Last Christmas, we heard for weeks about this Tickle Me Elmo crazy doll. First, it is ugly and it has an hysterical laugh. Yet parents were out there spending $500 to $1,000 to buy a ghastly little thing that their children apparently wanted. They only knew about it, presumably, by a combination of advertising and news stories which kept promoting how important this was to their children's lives. The same thing occurred when my two daughters were at that age with Cabbage Patch dolls which were, in my view, equally ugly and they did not get them.
Do you feel the same way about all advertised products?
Dr. Smith: What you are describing is, if it is not Tickle Me Elmo, it will be something else. The bottom line is that kids want toys at Christmas. What you are describing to me is more like choosing which toy I want to get, knowing that I want a toy and that it is an important distinction.
The Chair: Would you accept what tobacco manufacturers say, namely, that all their advertising is grand?
Dr. Smith: I am saying that I am not a position of being able to accept that that is what they are doing. At the present time -- and, this sounds like I am being careful with my words -- there is not any evidence to suggest that it is.
If cigarette companies are targeting or attempting to target what I deem to be ineffectiveness -- that is, if that is what they are doing -- then I do not know whether or not they are doing it. That is to say, I am not in a situation to be able to make that judgment. If they are doing that internally, then they are not being effective. If they are not, it does not make any difference.
Presently, there is no evidence to support that advertising is that important an issue for individuals to decide, to use your metaphor, "I think I want a toy."
The Chair: I have seen experienced young people in classrooms in which I taught stealing one another's runners so they would get the right brand of running shoe. It was only the right brand because advertising made it the right brand. These students did not need the running shoes; they certainly did not need the running shoes with that particular brand. Somehow or other, advertising had some impact on these young people.
Dr. Smith: It is not an issue where we say advertising is totally ineffective. However, the issue is: What is it doing? That is the question. It is not an issue that it does nothing whatsoever.
By virtue of the fact that you have particular kinds of advertising -- and, again, I am not an expert in issues pertaining to general advertising by any stretch of the imagination; right now I am speaking exclusively as an ordinary person of the public -- I would assume that advertising is geared towards particular markets. The idea is that if you know people are interested in that particular activity and they are doing that particular activity, then you can shade to get them so that you can get that part of the business. I assume that is the way it works.
The Chair: I was thinking of Senator Pearson's question, in particular. We have a situation in which a young woman wanted to be thin. Many of the young women I taught wanted to be extremely thin. That is what they wanted.
I then see a tobacco company advertising a fashion industry which also encourages those young women to be extremely thin. I cannot help but think that somehow or other there is a link between a cigarette company that is advertising fashion which promotes being extremely thin and those young women, in their desire to be extremely thin, deciding that, first, they will smoke; and, second, maybe their brand choice will be Matinée Light.
Dr. Smith: I certainly do not disagree with your description. It makes so much sense. It makes intuitive sense that that is the way it must be. The problem is, we are still in the same place.
The Chair: Exactly. We cannot find the absolute proof.
Dr. Smith: We cannot find consistent proof.
The Chair: Thank you very much, Dr. Smith. We appreciate your testimony, as do all senators on the committee.
The committee adjourned.