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Complainants
- Mary Jane Ashley, MD, FRCPC
Professor of Public Health
University of Toronto
- Fernand Turcotte, MD, MPH, FRCPC
Professor of Public Health
Laval University
- Robert Cushman, MD, FRCPC
Medical Officer of Health
City of Ottawa
- Pierre J. Durand, MD, CCFP, FRCPC
Dean, Faculty of Medicine
Laval University
- David Hill, CM, Q.C.
Perley-Robertson, Hill & McDougall
Ottawa
- David Sweanor
Staff Legal Counsel
Non-Smokers’ Rights Association
- Richard Stanwick, MD
Medical Officer of Health
City of Victoria (BC)
- Francis Thompson
Policy Analyst
Non-Smokers’ Rights Association
- Dr. Sheela Basrur
Medical Officer of Health
City of Toronto
- Garfield Mahood
Executive Director
Non-Smokers' Rights Association
- P.R.W. Kendall, MBBS, MSc, FRCPC
Provincial Health Officer
BC Ministry of Health Planning
Summary of alleged fraud
The federal Competition Act includes several provisions that make it illegal for companies to make misleading representations to the public about a product they are selling. (See Backgrounder on the Competition Act.) The complaint alleges that major cigarette manufacturers, notably (1) Imperial Tobacco Canada Limited, (2) Rothmans, Benson & Hedges Inc., and (3) JTI-Macdonald Corporation, use descriptive terms such as ‘light’ and ‘mild’ in a way that is “false and misleading in a material respect”:
[…] 2. (b) The use of descriptive terms such as “light” and mild” on cigarettes is false and misleads consumers into believing that such cigarettes are a “healthier” alternative to cigarettes, which is untrue;
[…] (d) Recent studies demonstrate that there is no credible or convincing evidence of a health benefit, or if there is any benefit, it is much less than what consumers would believe, when using tobacco products represented with descriptive terms such as “light” and “mild” compared to tobacco products not represented with these descriptive terms;
(e) Recent studies on public perceptions regarding the use of terms such as “light” and “mild” demonstrate that a substantial number of consumers believe that tobacco products described with these terms deliver lesser amounts of harmful substances than regular cigarettes. As such, many consumers have continued to use tobacco products, and have switched to cigarettes with descriptive terms such as “light” and “mild” instead of quitting, in the belief that there is a “health benefit” associated with “light” and “mild” cigarettes;
A supporting affidavit details some of the relevant scientific evidence and polling data, referring to reports by the U.S. National Cancer Institute, the World Health Organization’s Scientific Advisory Committee on Tobacco Product Regulation, Health Canada and other bodies, as well as to legal decisions and precedents from various jurisdictions:
[…] 8. For many years, the results produced by the FTC/ISO methods [of measuring constituent levels in tobacco smoke] were used by cigarette manufacturers, in conjunction with the schemes of labelling and promoting these cigarettes…to imply differences in exposure to tar, nicotine and carbon monoxide received by smokers between brands.
9. One of the differences in the design between “light” and “mild” cigarettes and regular cigarettes is that cigarette manufacturers designed “light” and “mild” cigarettes with an increased number of micro-perforations around the filter. These micro-perforations could be blocked by a smoker so that less air and more tar and nicotine would be delivered in a puff. Tobacco companies failed to advise consumers of the different design of the cigarette and consumers were not told or warned of the effects that blocking the vents would have on the intake of tar and nicotine.
[…] 14. These studies demonstrate that while some brands of cigarettes deliver appreciably less tar and nicotine to a smoking machine under certain conditions than do other brands, in the hands of a typical human smoker, the cigarette delivers levels of nicotine and tar equal to other cigarettes. […] [E]xecutives at tobacco companies have known for some time that smokers can and do adjust puff volumes so as to receive substantially larger doses of tar and nicotine than machine-measured yields would predict. […]
17. […] [T]he design of cigarettes, notably the use of filter ventilation and increases in burn rates, can be used to substantially reduce machine-measured tar and nicotine yields while facilitating conscious or unconscious behaviour, known as compensation, that reduces or eliminates the impact of such design features on tar and nicotine delivery to human smokers. […]
22. […] [W]hen smokers were questioned about their reasons for choosing to smoke “light” or “mild” cigarettes, the results indicate that the desire to reduce disease risk is on of the main factors guiding these choices. […]
39. Another important statistic from the [March 2002] Environics Report [for Health Canada] deals with smokers who switched to “light” or “mild” cigarettes from having smoked regular cigarettes. The Report indicates that at the time that smokers switched, fully one-half of light and mild smokers [48%] thought that smoking a light or mild brand would be less harmful to their health than smoking a regular brand. […]
40. Clearly, smokers have linked the terms “light” and “mild” to the quantity of tar and nicotine in the cigarette and believe that by using the “light” or “mild” cigarette the smoker is receiving less tar and nicotine. Smokers are clearly deceived where tobacco products are labelled or packaged with descriptive terms such as “light” or “mild”. […]
45. In a recent decision of the Superior Court of Quebec, the Honourable Justice André Denis considered the constitutionality of the federal Tobacco Act. In this comprehensive decision, at paragraph 234, the Court notes that tobacco companies have known for several years that light cigarettes are as bad for one’s health as regular cigarettes. The Court also notes that tobacco companies have used marketing campaigns that lead smokers to believe that light cigarettes are better for one’s health than regular cigarettes. […]
Remedies
Under the terms of the Competition Act, the Competition Bureau has the option of proceeding criminally and/or civilly:
53. It is requested that the Commissioner of Competition cause an inquiry to be made pursuant to section 10 of the Act and to take any and all appropriate proceedings, including referral to the Attorney General of Canada to determine whether any offences are being committed under the Act or to apply to the Court to determine whether cigarette manufacturers have engaged in reviewable conduct so that all necessary and appropriate sanctions will be imposed to achieve the goal and purpose of the Act in protecting the public, including an order prohibiting any further promotion, labelling and packaging of cigarettes that creates the false and misleading belief and impression that these cigarettes are less harmful than any other tobacco product and the imposition of a fine that would have the effect of deterring such egregious activity from being repeated.
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