Decision on constitutional challenge expected May 1
Bob Gee, right, pictured with his son Jeff. File
A tobacco retailer challenging provincial laws banning visual in-store displays of tobacco products will learn the result of years of legal proceedings this spring.
Bob Gee, owner of Mader’s Tobacco in Kentville, was charged with violating the provincial Tobacco Storage Act by improperly storing tobacco products in his shop in 2009. The businessman turned to the Canadian Charter of Rights and Freedoms to refute the charge, claiming it violates his freedom of expression through advertising, and won the first stage of his constitutional challenge in 2010.
Now, the province must prove the law prohibiting retailers from openly displaying tobacco products is constitutional.
Gee appeared in Windsor provincial court Friday, Jan. 25 for the last day of testimony in the long-awaited trial on the subject that began Dec. 4, 2012, and adjourned Dec. 6, 2012, to give Ed Gores, a lawyer for the provincial Justice Department, time to prepare for his cross-examination of defense expert witness Dr. Gordon Fullerton.
Gores’ cross-examination of Fullerton, a marketing expert and associate professor at Saint Mary’s University, consumed most of the court day Jan. 25.
Gores attempted to discredit sources used in Fullerton’s expert report, and poke holes in Fullerton’s argument that there is not sufficient evidence to prove display bans reduce smoking rates.
Under questioning, the defense witness agreed that the smoking rate in Nunavut that dropped to 53 per cent from 65 per cent since a display ban was imposed in 2004 supports beliefs that display bans lead to a decline in tobacco usage, but he said the “evidence is weak” when asked if allowing tobacco displays in public would “contribute to the normalization of smoking.”
Leaning on the argument that visual advertisements for tobacco products would increase impulse purchases, and potentially tempt teens viewing the ads to try smoking, Gores said the number of cigarettes consumed on a daily basis in Nova Scotia reduced after the implementation of point of sale display restrictions.
While Fullerton agreed it is impossible for tobacco companies marketing their products in public to solely reach adult audiences through their advertising, he testified that the decision to start smoking is a “high involvement decision,” not an impulsive act.
“It has to be viewed as a high involvement decision because they have some information about the risks,” Fullerton testified.
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When asked by Gores if anti-smoking legislation helped make non-smoking the norm, Fullerton said “it played a role.”
Gores argued that federal laws requiring packages of tobacco products may not be as effective without display bans in place, as it is possible for retailers to stack the products in a way that health warning labels are not visible to customers.
Fullerton said provincial tobacco control strategies are de-marketing strategies that dissuade consumers from purchasing, or consuming, the products, but he maintained that “tobacco display bans in Canada have failed to meet their objective.”
In his brief cross-examination of Fullerton, defence lawyer Curtis Palmer asked his witness to explain what impact the required warning labels have on potential buyers.
“It emphasizes the cost and deemphasizes the brand name,” replied Fullerton, noting that warning labels alone make products less attractive.
Fullerton was the last witness to provide testimony Judge Claudine MacDonald will consider while reviewing the evidence.
In December 2012, Crown witnesses Daniel Manette, a provincial tobacco inspector, and Nova Scotia’s Chief Medical Officer of Health, Robert Strang, defended display bans in the testimony both provided on the first day of the trial. Strang said the laws “minimize the use of tobacco products.”
Dr. Timothy Dewhirst, an Associate Professor of Marketing and Consumer Studies at the University of Guelph, testified as a marketing expert during the second day of hearings. He told the court the display ban should be upheld as a law that limits the ability of tobacco producers to market an addictive, and harmful, product.
Robert Cunningham, a lawyer and senior policy analyst with the Canadian Cancer Society, says the society is watching the case closely.
He disagrees with Fullerton’s assertion that display bans do not directly impact smoking rates.
“There is overwhelming evidence that retail displays do have an impact to influence smoking rates and influence attitudes,” he said, while court was in recess Jan. 25.
Cunningham says openly displaying tobacco products entices consumers, and even a slight reduction in smoking rates in a province should be considered a success.
“Personally, if they uphold it, and eventually we are found guilty, then I’d just close the shop. I would not operate a business under Draconian rules where you can’t show a legal product.” Bob Gee
“Thirty-seven thousand Canadians die each year because of smoking. Therefore, just one per cent of that is saving a lot of lives,” he said.
“This is a measure that is essential, that does have an impact, and that’s why we’re seeing so many countries implement it.”
He says similar legislation is in place throughout Canada, and many other countries, and the display ban is a part of a larger strategy that works best as a whole.
“The fact that so many countries around the world are adopting this type of legislation is a significant indicator of its importance,” Cunnigham said.
“We need to have strong legislation, without loopholes, because tobacco companies exploit those.”
Gee says he’s happy the trial is coming to an end, but frustrated he’s spent years fighting for his right to show a legal product sold in his privately-owned tobacco shop.
“In a nutshell, we’ve got big health trying to make big tobacco a small business issue. And, it’s not about my small business issue, it’s about big health’s fight against big tobacco,” he said, in the lobby of the Windsor courthouse.
Gee, who has owned Mader’s Tobacco for 45 years, says the bulk of the products in his shop are tobacco products, and the signs for his store clearly indicate he is in the business of selling tobacco.
“We are 95 per cent tobacco, and five per cent other products,” the 68-year-old noted.
Gee says it may be the end of his shop if the law is upheld once his case is no longer before the courts.
“Personally, if they uphold it, and eventually we are found guilty, then I’d just close the shop. I would not operate a business under Draconian rules where you can’t show a legal product.”
He says he never imagined his case against the province would garner as much attention as it has, or take this long to sort out, but he’s proud to say he stuck it out.
“Now I’m well past the year that I wanted to retire, and I’m still in business and still fighting the establishment.”
MacDonald is expected to render a decision on the constitutional challenge, the first of its kind in Canada, May 1 at 9:30 a.m. in Kentville provincial court.