Executive Summary

The purpose of this study is to provide a summary of the existing law governing Canadian alcohol advertising. In the first two parts, we explain the constitutional underpinnings of the existing law and the potential challenges to that law under the Canadian Charter of Rights and Freedoms. In the final two parts, we describe the actual federal and provincial alcohol advertising laws.

Both the federal and provincial governments have constitutional authority to enact laws regulating alcohol advertising. Although the federal government may not have authority over all types of alcohol advertising, it clearly has the power to prohibit or regulate television and radio broadcast advertising. The provincial governments have even broader constitutional authority. Thus, a provincial legislature could prohibit all forms of alcohol advertising or impose any lesser restrictions.

Since both levels of government have constitutional authority to regulate alcohol advertising, a conflict may arise. It is a well-established principle of constitutional law that a provincial law that conflicts with federal law will be rendered inoperative to the extent of the conflict. However, the Canadian courts have narrowly interpreted when a conflict will arise. As a practical matter, alcohol advertising will have to comply with both the federal and provincial laws.

Any federal or provincial advertising law must also meet the requirements of the Canadian Charter of Rights and Freedoms. Given the courts' broad definition of freedom of expression, virtually any federal and provincial alcohol advertising law limits this freedom. The only controversial issue is whether such limits can be justified under section 1 of the Charter. Given the legitimate concerns underlying the regulation of alcohol advertising, many restrictions can be upheld under section 1.

Various federal statutes prohibit misleading or deceptive advertising for any product. However, the Broadcasting Act and the regulations under that Act contain the most directly relevant alcohol advertising provisions. Among other things, this legislation purports to prohibit lifestyle advertising, advertising that appeals to minors, advertising that would encourage the general consumption of alcohol as opposed to a specific brand, and advertising that associates alcohol consumption with high-risk activities.

In Ontario, alcohol advertising is regulated under the Liquor Licence Act. The guidelines issued pursuant to provincial law ostensibly prohibit lifestyle advertising, advertising that would appeal to minors, advertising that would encourage the general consumption of alcohol as opposed to a particular brand, and associating alcohol with dangerous activities. In addition, the guidelines prohibit any alcohol advertising that depicts the immoderate consumption of alcohol. The legislation also prohibits and regulates certain marketing practices, such as inducements, drinking contests and giving away alcohol.

In the authors' opinion, it is very difficult to reconcile the alcohol advertisements on radio and television with the apparent dictates of federal and provincial law. Similarly, current alcohol marketing practices appear to be incompatible with the governing Ontario law. In part, these discrepancies can be explained in terms of the often vague, open-ended statutory language and the inherently subjective nature of the decisions that have to be made. However, those responsible for enforcing the law appear to have interpreted the legislation in a manner that is least restrictive.

Table of Contents

INTRODUCTION

PART I: CONSTITUTIONAL AUTHORITY OVER ALCOHOL ADVERTISING

PART II: ALCOHOL ADVERTISING AND THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

PART III: FEDERAL ALCOHOL ADVERTISING LAW

PART IV: PROVINCIAL ALCOHOL ADVERTISING LAW

CONCLUSION

ENDNOTES

This study provides a comprehensive summary of the existing Federal and Provincial law governing alcohol advertising in Ontario including Constitutional Authority Over Alcohol Advertising: The Canadian Charter of Rights and Freedoms; and Federal and Provincial Alcohol Advertising Law.

The Primer will be useful to people working in health promotion, community development and alcohol policy and/or with an interest in the advertisement and promotion of alcohol. Now more than ever, it is important to understand alcohol advertising and the complex Federal and Provincial regimes that regulate it explain authors Professors B. Hovius and R.M. Solomon:

Research on the relationship between advertising and changes in people's attitudes and behaviour remains controversial. Nevertheless, the money alcohol manufacturers spend on advertising and the governments' extensive regulations attest to a common belief that advertising is influential.