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Imperial Tobacco files legal challenge against tobacco control bill

Anti-smoking groups say they are not at all surprised that Imperial Tobacco is challenging the provisions of Quebec’s Bill 44 that ban the sale of flavoured cigarettes and sleeker packaging that appeal to youth.

On Friday, Imperial Tobacco Canada filed legal proceedings against the Quebec government claiming Bill 44 infringes on the company’s constitutional rights.

The company said in a statement released on Tuesday that the government committee that reviewed the bill adopted a number of additional provisions “without due consideration given to ensuring that the constitutional rights of those affected by the measures were infringed to the least extent possible.”

Mélanie Champagne, Director of Public Issues with the Canadian Cancer Society’s Quebec Division, said the company’s legal action is predictable.

“All it shows is that the measures (Quebec is taking) would be effective,” she said.

Tobacco companies, she said “would not spend so much money on legal proceedings if they didn’t realize this will affect their revenues substantially. But that is exactly what we want: lower revenues for tobacco companies means less smoking, and fewer cancer deaths.”

Anti-smoking groups rejoiced last November when Quebec’s National Assembly adopted Bill 44, “An Act to Bolster Tobacco Control”, unanimously. They said the new legislation made Quebec a world leader in the struggle against smoking, because Bill 44 bans all flavoured tobacco products, including menthol, and imposes a minimal size for health warnings on packages.

Current federal legislation requires health warnings to take up 75 per cent of the packages, but as packages were getting smaller, anti-smoking advocates those warnings were less effective. Quebec has countered this with its regulation, which requires the health warnings to be at least 4.6 square centimetres.

That means tobacco companies here cannot sell cigarettes in the tall, thin packages, sometimes called “purse packs” or “lipstick packs” that anti-smoking groups claim are designed to appeal to young people. An estimated 250 teenagers in Quebec begin smoking every week, and an estimated one third of all cancer deaths are related to smoking.

Flavoured cigarettes and cigars, including menthol, are also very popular with Quebec teens. Studies have shown that more than 50 per cent of Quebec youth who smoke use flavoured tobacco products.

Although menthol flavours are thought to appeal mainly to adults, new smokers do use them because they reduce irritation of the throat, said Flory Doucas, co-director of the Quebec Coalition for Tobacco Control, said menthol cigarettes are particularly appealing to youth.

“Menthol has analgesic properties so it masks the irritation caused by smoking. Menthol cigarettes are like training wheels for smoking.”

She added that legal challenges by tobacco companies are designed to have a chilling effect on other jurisdictions in Canada or elsewhere that might be considering legislation.

But Eric Gagnon, head of Corporate and Regulatory Affiars for Imperial Tobacco Canada, said the ban on flavoured tobacco products, including menthol cigarettes, will result in the growth of an already significant illegal cigarette market in Quebec.

“There is an incredible amount of hypocrisy around the sale of tobacco in Quebec,” he said. “The government of Quebec will generate over $1 billion in tobacco taxes in 2016. There is already comprehensive legislation … 75 per cent of the package is a health warning, they are hidden from view, and very highly taxed. There is nobody in Quebec who could say they don’t know the risk of smoking but an important part of the adult population will still continue to smoke. At the end of the day we are still a legal company and we believe we have the right to sell our products.”

The company is not challenging other provisions of the bill, such as the ban on smoking in motor vehicles when children under 16 are present and the prohibition on smoking on patios adjoining businesses and restaurants.

But it is challenging the bill’s restrictions on how tobacco companies communicate with retailers. The bill will not allow the companies to advertise to retailers, which Gagnon said unfairly prohibits retailers from passing on information to customers.

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