Her Majesty The Queen v. Mader’s Tobacco Store Ltd.
A Nova Scotia tobacco retailer was charged with violating the province’s Tobacco Access Act, which prohibits the display of tobacco products. The store alleged that the law and regulations violated its right to freedom of expression under the Canadian Charter of Rights and Freedoms. The court upheld the tobacco display ban, finding the law to be a minimal impairment on the store’s freedom of expression, which is justified by the highly addictive nature of tobacco and the risk of relapse if exposed to tobacco products on display. The court found the store guilty of violating the law.
R. v. Mader’s Tobacco Store Ltd., 2013 NSPC 29 (2013).
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Government, through its agencies and officials including prosecutors, may seek to enforce its health laws. For example, the government may revoke the license of a retailer that sells tobacco products to minors. These cases may also directly involve the tobacco industry, for example, a government might impound and destroy improperly labeled cigarette packs.
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging.
(See FCTC Art. 11)
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
A claim of a violation of a tobacco control law or statute.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"... As I indicated earlier, vendors being able to display their products for sale enables vendors and consumers to exercise personal autonomy. Having said that, tobacco products are unlike other consumer products. Other consumer products that are displayed for sale are potentially harmful, an obvious example being alcohol. But unlike alcohol, there is, as Dr. Strang said and I accept, no safe level of tobacco use from a carcinogenic perspective. Unlike most, if not all other consumer products that are lawful to sell or buy, nicotine is a highly addictive poison that is unsafe when consumed as intended. The expressive activity of displaying tobacco for sale might induce smoking by a former smoker or make it harder for a smoker to quit. When expression is used for the purpose of selling harmful and addictive products, its value becomes tenuous, despite the fact that the packaging warns any potential user of the product’s dangerousness.
When one is weighed against the other, is the limitation justified? Clearly it is. The nature of the expressive activity, although deserving of scrutiny is not close to the core values underlying s. 2(b) whereas the legislation might reduce tobacco consumption and thereby reduce tobacco-related disease, disability and death. The challenged legislation is rationally connected to the goal of reducing tobacco consumption, and is a minimal impairment of the Defendants’ right of freedom of expression. Simply put, the potential benefits of the tobacco display ban are significant and the detriment to the Defendants’ s. 2(b) right is minimal."
"When tackling a complex social problem, which this unquestionably is, the law is clear. The minimal impairment requirement is met if the Legislature has chosen one of several reasonable alternatives. After hearing the evidence on the highly addictive nature of nicotine and the risk of relapse if exposed to tobacco products on display, it is difficult to envisage a legislative scheme that would be reasonably effective in reducing tobacco consumption, yet constitute less of an impairment on freedom of expression than does the challenged legislation in his case. I am satisfied on the balance of probabilities that the Crown has established minimal impairment."
"Likewise, I accept the opinion evidence of Dr. Strang set out above at paragraph 47. Given the highly addictive nature of nicotine I find that displaying tobacco products, including those with graphic warnings, can act as an inducement so as to cause a former smoker to relapse, and make it more difficult for a smoker who wants to quit. A non-smoker, unaddicted to nicotine is not likely to make an impulse purchase of cigarettes merely because of seeing the products. The same cannot be said about one who is addicted to nicotine. As I stated earlier, for a former smoker attempting to stay off cigarettes, seeing a cigarette display (even with package warnings) could be the cue to trigger the craving, thereby resulting in an impulse purchase of tobacco and a return to smoking. It is perhaps, as simple as saying ‘out of sight, out of mind.’ The Crown has established, on the balance of probabilities that the challenged legislation is linked to the objective of reducing tobacco consumption and further, that it might result in reduced tobacco consumption."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
A Nova Scotia tobacco retailer was charged with violating the province’s Tobacco Access Act, which prohibits the display of tobacco products. The store alleged that the law and regulations violated its right to freedom of expression under the Canadian Charter of Rights and Freedoms. The court upheld the tobacco display ban, finding the law to be a minimal impairment on the store’s freedom of expression, which is justified by the highly addictive nature of tobacco and the risk of relapse if exposed to tobacco products on display. The court found the store guilty of violating the law.