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Smoke-Free Environments (Tobacco Plain Packaging) Amendment Bill

6 December 2013

Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990:

Smoke-Free Environments (Tobacco Plain Packaging) Amendment Bill

1.We have considered whether the Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill (PCO 17769/7.0) (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).  We understand that the Bill will be considered by the Cabinet Legislation Committee at its meeting on Thursday, 12 December 2013. 

2.We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.  In reaching that conclusion, we have considered possible inconsistencies with s 14 (freedom of expression).  Our analysis under that section is set out below.

THE BILL

3.The Bill amends the Smoke-free Environments Act 1990 (‘the Act’) and seeks to create a plain packaging regime for tobacco products in New Zealand, similar to that which has been in place in Australia since December 2012.  The broad purpose of the Bill is to improve public health in New Zealand by reducing smoking prevalence.  The Act, or regulations made under the Act, already ban or restrict almost all forms of tobacco-related promotion and advertising in New Zealand.

CONSISTENCY WITH FREEDOM OF EXPRESSION

Section 14 – Freedom of expression

4.Section 14 of the Bill of Rights Act affirms that everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.  The right to freedom of expression in s 14 extends to all forms of communication that attempt to express an idea or meaning 1 including commercial expression such as advertising 2.   However, the Courts have found limits on commercial expression more readily justifiable than other forms of expression 3. 

5.The Bill provides for regulation-making powers to control all elements of the design and physical appearance of tobacco products and any packaging used or intended for use with such products (cl. 17, new section 39A). The only exception is that the product packaging may display the brand or company name, but even then only in accordance with the regulations (cl. 10, new s 31A(2)(b)). 

6.It is clear that the regulation-making powers in the Bill could be used in a way that would limit freedom of expression almost completely in regard to packaging.  Indeed, the intent is that the regulation making powers will be used to the full extent to create a plain packaging regime in New Zealand in which the tobacco companies would have almost no control over the appearance of their tobacco products.

Justification

7.Where a provision appears to limit a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is demonstrably justified in a free and democratic society under s 5 of that Act.  The s 5 inquiry may be summarised as 4:

a)does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?
b)if so, then:

i.is the limit rationally connected with the objective?
ii.does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
iii.is the limit in due proportion to the importance of the objective?

Sufficiently important objective

8.Clause 6 of the Bill sets out the specific policy objectives, which are to 5:

a.reduce the appeal of tobacco products and smoking, particularly for young people
b.further reduce any wider social acceptance and approval of smoking and tobacco products
c.increase the noticeability and effectiveness of mandated health warning messages and images
d.reduce the likelihood that consumers might acquire false perceptions about the harms caused by tobacco products. 

9.For the purposes of this advice it is sufficient to identify the relevant objective as being to improve public health in New Zealand by reducing smoking prevalence through reducing the appeal of tobacco products and smoking.   We consider that this is a sufficiently important objective to justify some limitation on freedom of expression.

10.We note that the Bill of Rights Act affirms New Zealand’s commitment to the International Covenant on Civil and Political Rights, Article 19(3) of which expressly states that the right to freedom of expression may be subject to limitations necessary for the protection of public health.  In addition, we again note that limits on commercial expression are more readily justifiable than other forms of expression.

Rational connection

11.We consider that the limit on the right to freedom of expression is rationally connected to the objective.  The Regulatory Impact Statement (RIS) cites a broad range of studies and reports supporting the contention that tobacco packaging and promotion is a highly effective form of marketing.  More specifically, there is evidence that tobacco packaging design can 6:

a.dilute the noticeability and effectiveness of written and pictorial warnings about the harm caused by smoking;
b.mislead some consumers about the harmfulness of tobacco products (e.g., gold, blue, silver or purple have been shown to create the perception that the product is less harmful and easier to quit than red and black); and
c.make smoking more attractive (e.g., by creating the impression that people likely to use the brand have certain desirable characteristics).

Limiting the right no more than is reasonably necessary

12.Although the regulations will not prevent tobacco companies from distinguishing their products by brand or company name, the potential limitation on freedom of expression is otherwise complete.  The question is therefore whether anything less than this level of control would sufficiently achieve the Bill’s objective.

13.In RJR-MacDonald Ltd v Canada [1995] 7,  the Supreme Court of Canada found that legislation prohibiting the advertising of cigarettes was inconsistent with the Canadian Charter of Rights and Freedom’s protection of free speech.  The Court went through an analysis similar to a Bill of Rights s 5 inquiry and found that the legislation was inconsistent with the Charter only because the legislation did not limit the right to freedom of expression as little as reasonably possible in the circumstances. The Government had not demonstrated that a blanket ban on advertising was required, rather than some other less restrictive regulation.  In our view, this decision must be viewed in light of the more limited knowledge of the effect of tobacco marketing and promotion at the time.

14.The RIS, at paragraphs [19] to [21], considers the option of new health warnings covering a larger part of tobacco packaging than is currently the case.  This would reduce but not eliminate the space for industry promotion and so would not limit freedom of expression to the same extent possible under the Bill.  This option is rejected on the basis that it still leaves tobacco companies with a means to promote their product, with the potential to undermine anti-smoking initiatives as outlined in paragraph 11.

15.We consider that the almost complete limit on the freedom of expression in regard to tobacco packaging is reasonably necessary.  The research cited in the RIS shows that tobacco packaging is a highly effective form of marketing.  Even if strictly confined, it is likely that it could still be used to enhance the appeal of tobacco products and/or smoking generally.    
Proportionate to the objective

16.The limit on the right to freedom of expression must be proportionate to the importance of the objective.  In this instance, the objective is of significant importance.  Since the 1950s, it has become well established that smoking causes significant harm.  According to the RIS, at paragraph [1], smoking is the single biggest cause of preventable death and disease in New Zealand, resulting in approximately 5000 deaths each year.  While the limit on freedom of expression is almost complete, we consider that it is proportionate to the importance of the objective.   

CONCLUSION

17.We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Jeff Orr
Chief Legal Counsel
Office of Legal Counsel

 

Footnote

[1] R v Keegstra [1990] 3 SCR 697,729,826.

[2] Irwin Toy Ltd v A-G (Quebec) (1989) 58 DLR (4th) 577 (SCC).

[3] RJR-MacDonald Ltd v Attorney General of Canada (1995) 127 DLR (4th) 1; Markt Intern and Beerman v Germany (1989) 12 EHHR 161 (ECtHR).

[4] Hansen v R [2007] NZSC 7.

[5] See paragraphs [9] to [11] of the Regulatory Impact Statement for discussion of the wider objectives of the New Zealand’s tobacco control policy.

[6] Regulatory Impact Statement, paragraphs [6] and [7].

[7] RJR-MacDonald Ltd v Canada [1995] 3 SCR 199 (SCC).

Disclaimer
In addition to the general disclaimer for all documents on this website, please note the following:
This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.