Potgietersrus Tobacco Corporation

1.1. These submissions have been prepared on behalf of Potgietersrus Tobacco Corporation Limited ("the company"). The mandate on behalf of the company is a narrow one. It is to address the Portfolio Committee on Health on the decision of the Supreme Court of Canada in RJR MacDonald Inc V Canada (Attorney-General) (1996) 31 CRR (2d) 189 (SCC) in which it declared, by a majority, the Canadian Tobacco Products Control Act to be unconstitutional.

1.2 Since the draft legislation presently under consideration by the Portfolio Committee and the Canadian legislation bear many similarities and because of the similarities between the Canadian Charter of Rights and the South African Constitution, it is submitted that the judgment of the Supreme Court of Canada will be of assistance to the Committee.

1.3 The decision of the Canadian Supreme Court is likely to be influential in South Africa by reason of the fact that the constitutional structure of the two countries is similar and also because Canadian decisions have proved to be influential and persuasive in the past.

1.4 In order to avoid any misunderstanding, it is stressed at the outset that the company recognises:
1.4.1 Firstly, that freedom of expression is not an unqualified right;
1.4.2 Secondly, that the legislature may impose reasonable limits on commercial advertising; and
1.4.3 Thirdly, that the health concerns which underlie the proposed legislation constitute a legitimate governmental objective.

1.5 At issue, therefore, is whether the proposed legislation is a reasonable and proportionate response to the end sought to be achieved. It is in this context that it is submitted that the Canadian experience will be of assistance to the Portfolio Committee.

1.6 It is impossible to do full justice to the judgment of the Canadian Supreme Court in the time available. The judgment runs to some 114 printed pages and contains a number of separate judgments, including dissenting judgments. It is proposed, therefore, to focus on those aspects which are relevant to the South African constitutional context,

2.1 The Canadian legislation shares many similarities with its proposed South African counterpart. The purpose of the Canadian legislation was described in section 3 as follows:
"The purpose of this Act is to provide a legislative response to a national public health problem of substantial and pressing concern and, in particular:

(a) to protect the health of Canadians in the light of conclusive evidence implicating tobacco use in the incidents of numerous debilitating and fatal diseases;

(b) to protect young persons and others, to the extent that it is reasonable in a free and democratic society, from inducements to use tobacco products and consequent dependence on them; and

(c) to enhance public awareness of the hazards of tobacco use by ensuring the effective communication of pertinent information to consumers of tobacco products."

2.2 Consistent with these objectives, the Canadian legislation imposed, inter alia, a prohibition on the sale of tobacco products, compulsory health warnings and a prohibition on the use of tobacco trademarks. The legislation bears striking similarities to the South African measure.

2.3 Like the South African Constitution, the Canadian Charter of Rights guarantees freedom of expression. Section 2(b) of the Charter provides:
"2 Everyone has the following fundamental freedoms:

(a) .

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."

Section 16 of the South African Constitution provides:

"(1) Everyone has the right to freedom of expression, which includes -

(a) freedom of the press and other media;

(b) freedom to receive and impart information and ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm."

2.4 None of the rights in the Canadian Charter of Rights are absolute. Again, like the South African Constitution, all rights may be limited. The test for limitation in the Canadian Charter is found in section 1 in the following terms:

"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

The limitation clause in the South African Constitution is section 36 which provides:
"36 (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including -

(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.

(2) Except as provided in sub-section (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights."

3.1 The principal interest of the decision turns on freedom of expression. However, in the South African context, the proposed legislation implicates property rights as well, a dimension not open to the Canadian Courts.

3.2 Two tobacco manufacturers JUR-MacDonald Inc and imperial Tobacco, applied for a declarator that the Canadian Tobacco Products Control Act was unconstitutional on the grounds that it was ultra vires and that is was an unjustifiable infringement of the right to freedom of expression protected by s 2(b) of the Canadian Charter of Rights and Freedoms.

3.3 The Supreme Court of Canada was unanimous in holding that the advertising ban, and the prohibition of trade mark use on non-tobacco products infringed the applicants' right to freedom of expression protected by s 2(b). A majority of five judges held that the imposition of unattributed health warnings on tobacco product packaging also infringed 52(b). This was because the combination of the unattributed health warnings and the prohibition against displaying-any other information which would allow tobacco manufacturers to express their own views, was in conflict with Canadian doctrine that "freedom of expression necessarily entails the right to say nothing or the right to say certain things"

RJR-MacDonald supra at 201 124 (McLachlin J) citing Slaight Communications Inc V Davidson
(1989) 40 CRR 100 (SCC) at 132;

3.4 The majority decided the case on the basis that:
3.4.1 no rational connection had been established between the objective of reducing tobacco consumption and the prohibition on trade mark use on non-tobacco products and the promotion ban was therefore unjustifiable;

3.4.2 although there was a rational connection between certain forms of the advertising ban, mandatory health warnings and reduced tobacco consumption, the total nature of the advertising ban and the lack of attribution on the health warnings impaired the fight of commercial expression more than was reasonably necessary to achieve the objectives of the Act. Consequently the total advertising ban and the imposition of unattributed health warnings were unjustifiable;

3.4.3 the provisions of the Act regulating retail displays and promotion through sponsorship could not be cleanly severed from the invalid provisions and were consequently also invalid

3.5 The issues that divided the court concerned:
3.5.1 the proper manner of assessing the rights infringed and the legislation at issue in the context of the dispute;
3.5.2 the standard of proof required to establish a rational connection between the advertising and promotion bans and tobacco consumption.
3.5.3 the appropriate degree of deference to the legislature in the area of socio-economic legislation;
3.6 The legal debate focused intensely on the justification for the prohibition and particularly the evidence that had been presented in a very long trial lasting more than a year in which "a massive amount of evidence was adduced through experts and through documentary evidence on which the experts were examined." (at 209).

3.7 Justice McLachlin, who wrote the majority judgment dealt with justification in the following terms:

"I agree with La Forest J that '[t]he appropriate 'test' in a s.1 analysis is that found in s.1 itself' (in para 62) [p263 post]. The ultimate issue is whether the infringement is reasonable and 'demonstrably justified in a free and democratic society.' The jurisprudence laying down the dual considerations of importance of objective and proportionality between the good which may be achieved by the law and the infringement of rights it works, may be seen as articulating the factors which must be considered in determining whether a law that violates constitutional rights is nevertheless 'reasonable' and 'demonstrably justified'. If the objective of a law which limits constitutional rights lacks sufficient importance, the infringement cannot be reasonable or justified. Similarly, if the good which may be achieved by the law pales beside the seriousness of the infringement of rights which it works, that law cannot be considered reasonable or justified. While sharing La Forest J's view that an overtechnical approach to s.1 is to be eschewed, I find no conflict between the words of s.1 and the jurisprudence founded upon ..... [1986] 1 SCR 103. The latter complements the former.

That said, there is merit in reminding ourselves of the words chosen by those who framed and agreed upon s.1 of the Charter. First, to be saved under s.1 the party defending the law (here the Attorney General of Canada) must show that the law which violates the right or freedom guaranteed by the Charter is 'reasonable'. In other words, the infringing measure must be justifiable by the processes of reason and rationality. The question is not whether the measure is popular or accords with the current public opinion polls. The question is rather whether it can be justified by the application of the processes of reason. In the legal context, reason imports the notion of inference from evidence or established truths. This is not to deny intuition Its role, or to require proof to the standards required by science in every case, but it is to insist on a rational, reasoned defensibility.

Second, to meet its burden under s.1 of the Charter, the state must show that the violative law is 'demonstrably justified'. The choice of the word 'demonstrably' is critical. The process is not one of mere intuition, nor is it one of deference to Parliament's choice. It is a process of demonstration. This reinforces the notion inherent in the word 'reasonable' of rational inference from evidence or established truths.

The bottom line is this. While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the State can override constitutional rights, there must be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning . The task is not easily discharged, and may require the courts to confront the tide of popular public opinion. But that has always been the price of maintaining constitutional rights. No matter how important Parliament's goad may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights then the law must perforce fail" (emphasis added)

3.8 In the event of a legal challenge to the present law (assuming that it is passed In its present form), once a prima facie violation of a constitutional right has been established, the onus will be on the State to justify the limitation. The onus of proving that the limit on the fundamental right is permissible in terms of the limitations clause rests upon the party seeking to uphold the limitation. South African and Canadian constitutional law is similar in this regard.

3.9 Dealing with the evidence advanced by the Government in the Canadian case, Justice McLachlin observed at 211:

"The only direct or scientific evidence offered of the link between advertising bans and smoking reduction consisted of a report of the New Zealand Toxic Substances Board entitled, Health or Tobacco; An End to Tobacco Advertising and Promotion ... which reviewed the effect of advertising restrictions in thirty three countries and concluded that then was a correlation between the degree of restrictions imposed in each country and decline in tobacco use and of the evidence of Dr Jeffrey Harris, affirming the accuracy of the New Zealand report. The trial judge, after lengthy consideration, rejected this evidence. The report was found.... to contain serious methodological errors which rendered it for all intents and purposes devoid of any probative value. As for Dr Harris, the trial judge found ... that he used unreliable input data and a methodology which led necessarily to the desired result."

She stated further at 212:

"... there does not appear to be any causal connection between the objective of decreasing tobacco consumption and the absolute prohibition on the use of a tobacco trademark on articles other than tobacco products which is mandated by section 8 of the Act. There is no causal connection based on direct evidence, nor is there, in my view, a causal connection based on logic or reason. It is hard to imagine how the presence of a tobacco logo on a cigarette lighter, for example, would increase consumption; yet such use is banned. (emphasis added)

3.10 The majority recognized the need to consider the impugned law in its social and economic context. At p205 McLachlin J said that a consideration of context did not reduce the obligation on the state to meet its burden of justification:

"Context is essential in determining legislative objective and proportionality, but it Cannot be carried to the extreme of treating the challenged law as a unique socioeconomic phenomenon, of which Parliament is deemed the best judge. This would be to undercut the obligation on Parliament to justify limitations which it places on Charter rights and would be to substitute ad hoc judicial discretion for the reasoned demonstration contemplated by the Charter."

3.11 In order to sustain a complete prohibition on tobacco advertising at the "minimal impairment" stage of the analysis, it would have been necessary for the government to show that only a full prohibition will enable it to achieve its objective. No evidence was adduced to show that a partial ban would be less effective than a total ban although a variety of less intrusive measures were available. No explanation appeared from the record as to why a total ban was adopted. Nor was argument addressed by the government on the point. The total advertising ban therefore failed the "minimal impairment" leg of the analysis.

RJR-MacDonald supra at pp213-214

3.12 In reaching this conclusion McLachlin J stressed at p216 the need not to undervalue the expression at issue. Although commercial speech may be less important than other forms of speech, the total advertising ban deprived "those who lawfully smoke of information relating to price, quality and even health risks associated with different brands". Moreover, the profit motivation behind commercial expression was held to be irrelevant to justifying the infringement of the right to freedom of expression.

3.13 On the issue of unattributed health warnings the majority concluded at p217 that the government was justified in requiring the placing of health warnings but not in prohibiting the applicants from attributing those warnings to the government. Since no justification was advanced for requiring that the warnings be without attribution9 this provision also failed to satisfy the "minimal impairment" factor.

4.1 While the regulation of advertising is not in itself constitutionally offensive, it is submitted that the present Bill is constitutionally vulnerable for reasons similar to those adopted by the Canadian Supreme Court.

4.2 What is conspicuously absent from the Bill are the types of exemption to be found in similar legislation emanating from other countries. For example, the Canadian legislation expressly exempted imported periodicals from the advertising ban. Australian legislation also exempts what is described as tobacco advertisements that are incidental accompaniments to the subject of a film or video.

4.3 There are many other consequences of the Bill in its present form, possibly not intended, but nevertheless latent within the Bill.

4.4 One should caution against a tempting response to these concerns, namely, that those in authority can be trusted to exercise their powers wisely and justly. The Constitutional Court in S v Zuma & Others 1995 (2) SA 642 (CC), dealing with the presumption of innocence. observed that that presumption "cannot depend on the exercise of discretion" - at 657 H.

4.5 The company wishes to make it clear that it would welcome the opportunity to consult with the relevant officials in the Ministry in an endeavour to remedy those aspects of the Bill which it has been submitted are constitutionally vulnerable.