Public Policy Sources #40: Trends in Regulation

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Tobacco regulation is a recurring phenomenon. Kiernans (1991) describes how in the generations after Walter Raleigh's expedition to the Americas, tobacco was deemed to be a health product and some schools, such as Eton in Britain, ruled that during the plague of the seventeenth century, students should smoke at least a pipe of tobacco a day to chase away the pest. At other times, smokers have been tortured and executed. Kluger (1996) writes that the seventeenth century Mogul emperor of Hindustan ordered smokers' lips split on the grounds that their habit invited debauchery. Jacobson, Wasserman, and Anderson (1997) explain that by the end of the nineteenth century in the United States, 14 states had passed laws banning the production, sale, or use of tobacco. In 1897, Tennessee banned the sale of cigarettes and the Supreme Court upheld the ban. There were also many laws banning the sale of tobacco to those under 18. As smoking became popular in the early twentieth century, most of these laws were either repealed or not enforced. Government attempts to control tobacco in North America were dormant until about the 1950s, when the first of three waves of government control of tobacco began.

Wave 1--Government control of information

Calfee (1997) explains how in 1950, the United States' Federal Trade Commission (FTC) got major tobacco companies to agree to stop advertising the tar contents of their cigarettes. According to Calfee, the FTC issued advertising guides that held that "no advertising should be used which refers to either the presence or absence of any physical effect of smoking." The guides also prohibited all tar and nicotine claims "when it has not been established by competent scientific proof . . . that the claim is true, and if true, that such difference or differences are significant" (Calfee 1997: 42). The FTC flip-flopped on this issue throughout the 1960s until finally it not only allowed but forced tobacco companies to list the tar contents of their product. According to Kagan and Vogel (1993), the three big government interventions of the 1960s in the United States were the 1964 Surgeon General's warning about the dangers of tobacco use, the 1965 requirement that cigarette companies print warnings on the sides of cigarette packs, and the 1970 ban of all tobacco advertising on television and radio. Canada followed the American example in the early 1970s but with less formality than the United States pursued its fight against tobacco. In 1970, the Canadian House of Commons Committee on Health and Welfare and Social Affairs recommended complete bans on tobacco advertising and promotion that led to Bill C-248 being introduced to the House. The bill was never debated in the House, and was withdrawn after the tobacco industry volunteered to pull all advertisements from television and radio and agreed to print a mild health warning on the sides of cigarette packs. Canada followed the American example but in its own way.

Wave 2--Bans and taxes

This first wave of tobacco control through dissemination of information gave way to a second, more intrusive, wave of regulation starting in the early 1980s. In 1980, the Canadian Parliament passed the first criminal prohibition of tobacco sales to minors. Citizens largely ignored this prohibition. The government repealed the law in 1993 and replaced it with the Tobacco Sales to Young Persons Act, which made it an offence to sell tobacco to persons under 18 and prohibited vending machines in public places other than bars or taverns. Other actions included bans on smoking in public and private spaces, bans on advertising and marketing, and increases in cigarette taxes.

In their zest to restrain smokers, Canadian governments surpassed regulations south of the border. During the 1980s, municipalities passed bylaws that restricted smoking in restaurants, shopping malls, office buildings, and on public transport. These by-laws imposed restrictions that usually exceeded federal and provincial laws. The most recent and most extreme of these was passed in Victoria, British Columbia in January of 1999. This, the toughest anti-smoking law in North America, forbids smoking in bars, restaurants, hotel lobbies, bingo halls, bowling alleys, and long-term care facilities. Dr. Richard Stanwick, the region's medical health officer proclaimed: "Smokers are asking for their space and we do have one for them--but it is outside" (Arnold 1999). According to a 1995 survey by Health Canada of all municipalities with populations greater than 10,000, 39 percent of municipalities throughout the country had anti-smoking by-laws. Provinces enacted laws in the same spirit and imposed fines on transgressors. In addition to smoking bans, the Federal government passed bans on advertising, starting in 1988 with Bill C-51. This bill was a blanket ban on advertising. Tobacco companies contested the Bill all the way to the Supreme Court, where they won their case in 1995. Milder versions of advertising bans followed with Bill C-71 in 1997, and Bill C-42 in 1998 (see BGOSHU 1999).

As a backdrop to this second intrusive phase of regulation, we see tobacco taxes rising in Canada. Traditionally, these taxes had been low but, by the end of the 1980s, Canada's taxes on tobacco were higher than those of most other countries of the Organisation for Economic Cooperation and Development (OECD). According to Finance Canada, in 1998 72 percent of the cost of a pack of cigarettes was attributable to taxes in British Columbia, 50.2 percent in Ontario, and 55.3 percent in Quebec (Physicians for a Smoke-Free Canada 1998). By the early 1990s, "Canada led the world, or was close to the lead, in restricting cigarette marketing, in deterring use through taxation, and in directly regulating cigarette use" (Kagan and Vogel 1993: 28). Canada was following the World Health Organization's Tobacco or Health resolution of 1986 that all countries should ban tobacco advertising, advertise the health hazards of tobacco, provide smoking cessation programs, put warning labels on cigarettes, provide protection against second-hand smoke, and impose financial measures to discourage smoking.

Wave 3--Torts

The third wave of assault on tobacco began in 1994 when 40 American states launched torts against tobacco companies. Canadian provinces have followed this example. In 1997, British Columbia passed its Tobacco Damages Recovery Act, which seeks to sue tobacco companies for expenses incurred by public-health systems due to tobacco related illnesses. Ontario is suing American tobacco firms for enticing innocent Ontarians into smoking to the point of provoking lung cancers (Glenn 1998). Torts are a hidden tax on smokers, workers in the tobacco industry, firms that supply the tobacco industry, and shareholders.

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