Protecting kids from the sight of cigarettes

Bob Gee was back in court earlier this month. Gee is the owner of Mader's Tobacco Store in Kentville, Nova Scotia and has been fighting a provincial tobacco regulation which bans tobacco displays. Gee was ordered, under the province’s Tobacco Access Act, to remove his tobacco displays in January, 2007. He refused.

In March, 2008, he was charged with improper storage and display of tobacco products. Gee entered a plea of not guilty claiming the tobacco regulation violated his right to freedom of expression.

Those charges were later stayed while the province amended the law to allow retailers to display their tobacco products through a catalogue which could be viewed by consumers when making tobacco purchases. Presumably, the government believed that by allowing Gee to display his tobacco product line via a catalogue, they were no longer violating his right to freedom of expression.

Gee still refused to take down his tobacco displays and, in July, 2009, he was once again charged with improper storage and display of tobacco products.

Earlier this year, a provincial court judge ruled that the law did indeed violate Gee's right to freedom of expression. That was back in August. The ruling placed the onus on the province to prove that infringing on Gee's right to freedom of expression is reasonable and for the public good.

On October 7, lawyers for the attorney-general and the Crown told Judge Claudine MacDonald they needed more time to prepare for the case. Just another of many delays requested by, and granted to, the Crown. The new date for the hearing is June, 2011.

The outcome of the case could have far reaching consequences. Bans on so-called point of sale displays have been implemented in all provinces across Canada. Should the Crown be unable to convince the court that bans on tobacco displays are, in fact, in the public interest, then all of those bans are could be compromised.

Rob Cunningham, of the Canadian Cancer Society, claims the case is a public health issue. "These laws remain very important for public health. All 13 provinces and territories in Canada have legislation banning tobacco displays."

Provincial court judge Claudine MacDonald has already ruled that displaying a product conveys a meaning and can therefore be regarded as an "expressive activity" protected by Canada's Charter of Rights. The question remaining is whether the law is a reasonable means of protecting some compelling public interest which would override Gee's right to freedom of expression.

The reasoning behind the bans, put forth by anti-smoker zealots like the Canadian Cancer Society, is that the tobacco displays encourage kids to start smoking. The zealots claim that even the sight of a cigarette package will entice kids to adopt the smoking habit. But, there's absolutely no evidence, scientific or otherwise, to support that contention.

Other countries have considered tobacco display bans but rejected the idea because the evidence was speculative and not proven to reduce smoking rates. Two such countries were Denmark and Sweden, where bans on point of sales displays were debated in their respective parliaments earlier this year.

“Canada has introduced a so-called point of sale display ban on tobacco, which means that the packs are not allowed to be visible. This does not mean that there has been any noticeable effect on consumption. Some provinces have even seen an increase.” (Jan R Andersson, Swedish MP, June 15, 2010)

“If there was a clearly documented effect from putting all tobacco in boxes behind dark curtains, we could maybe consider it, but we do not believe that the few countries who have implemented something similar can document any real effect.” (Bertel Haarder, Danish Minister of Interior and Health, May 27, 2010)

And, in the absence of any evidence, how can it be considered reasonable to prohibit a retailer from displaying a legal product line?

Nor is there any evidence to suggest that an adult trying to quit smoking will break down at the mere sight of a pack of smokes and take up smoking again. Cigarettes, clearly, are not an impulse item.

Junk food, however, in the form of candy bars and soda pop, are impulse items. And, over the last couple of years, childhood obesity has been identified as a serious public health issue. But, would it be considered reasonable to force grocery stores or corner stores to hide the pop, candy bars and potato chips lest children be tempted to buy them and risk becoming obese?

Anti-smoker zealots were very successful in convincing gullible politicians that it was morally objectionable to have tobacco products displayed where they could be seen by children; that legislation was needed to eliminate the remote possibility that tobacco displays might encourage kids to pick up the habit. Politicians, eager to score a few cheap brownie points with their constituents, were quick to buy into the emotional appeal of “protecting the children.”

The courts, on the other hand, will be looking for evidence. And, the courts will hear both sides of the debate; not just the one-sided argument presented by anti-smoker fanatics and the press.

The sale of tobacco products to minors is illegal. That's a justifiable prohibition. Protecting children from the sight of a cigarette pack, however, is neither justified nor reasonable.

Bob Gee, at 66, says he just wants to retire and turn the business over to his son. The province of Nova Scotia is probably just wishing he'd go away.