Arguments begin in 'light' cigarette appeal Health/Justice BARB SWEET The Telegram

Lawyers wait for the beginning of court Wednesday when the Newfoundland and Labrador Supreme Court of Appeal began hearing a case on light cigarettes. - Photo by Barb Sweet/The Telegram

If an attempt at certifying a class-action lawsuit over light tobacco products goes up in smoke at the Supreme Court of Appeal, it will not only hurt smokers and ex-smokers, but could affect all consumers.

An appeal court panel of justices - Margaret Cameron, Gail Welsh and Charles White - began hearing the case Wednesday and it continues today.

Lawyer Ches Crosbie is challenging a decision by the Supreme Court of Newfoundland and Labrador which said the class action couldn't be certified because consumers didn't buy their "light" and "mild" tobacco products directly from Imperial Tobacco Canada Ltd.

Crosbie is accusing the company - which has the largest tobacco sales in this province - of violating provincial trade practices legislation.

Rob Cunningham, an Ottawa lawyer for the Canadian Cancer Society who is observing the case, said if the certification doesn't go ahead, it will set a precedent for many consumer products, which are not commonly bought from their manufacturer.

"In Newfoundland there are vast numbers of consumer products that have been put in the marketplace without (manufacturers) selling directly to the consumer," Cunningham said.

"And if a consumer cannot have a remedy for all of these types of consumer products that are on the market with consumer protection legislation, then it would be much weaker legislation than I believe the legislature intended."

The cancer society is most interested in seeing the class action about "light" cigarettes go ahead because it feels consumers were duped into thinking light tobacco was a healthier alternative.

Cunningham also said the same manufacturers who abandoned the use of "light" and "mild" have returned with monikers such as "smooth" and "mellow."

"For decades, Imperial Tobacco has engaged in a massive marketing scam for light and mild cigarettes. Through their marketing, they have created the impression in the minds of consumers these are much safer for health, when that's not the case. As a result, many of these smokers have chosen these light and mild brands instead of quitting altogether," Cunningham said.

He said individual people can't afford to take on a large company like Imperial, so class action is the only way a case can proceed.

But Imperial Tobacco claims Supreme Court Justice James Adams did the right thing in 2008 when he ruled the class action couldn't be certified to proceed.

Although there were Imperial representatives in court Wednesday, comment was referred to Imperial spokesman Eric Gagnon, who said in a phone interview that the federal government "instigated and co-operated" in the development and sale of low-tar tobacco products in the late 1960s.

"We never made any health claims about lower-tar cigarettes," Gagnon said.

He said tobacco manufacturers can't advertise anymore and are operating under strict controls in regard to required warnings they must place on cigarette packs. So the rest of the packaging is used to differentiate brands and that's why new labels like "mellow" and "smooth" have been developed.

The application for certification was filed by Crosbie on behalf of Victor Todd Sparkes - the class action's representative plaintiff - against Imperial Tobacco Canada Ltd., Imperial Tobacco Co. Ltd. and the attorney general of Canada.

Sparkes claims the tobacco companies' descriptions of "light" and "mild" as well as other descriptive terms were part of a deliberate misinformation campaign by the tobacco manufacturer to mislead and deceive the public into thinking the use of such products would have less harmful effects than smoking "regular" cigarettes.

Imperial Tobacco and other major tobacco companies removed "light" and "mild" descriptors because of a 2006 settlement with the federal Competition Bureau.

Health Canada, which the attorney general is representing, commented Wednesday it "remains committed to informing Canadians about the dangers of tobacco use."

Crosbie argued to court Wednesday that Adams should have seen Imperial as having a transaction with the consumer because it distributed the product.

He also said that since Adams came to his decision, there have been developments.

Crosbie noted nine provinces have passed legislation that would allow them to pursue lawsuits to recover health-care costs from the tobacco companies.

The other development was the settlement of the breast cancer class-action case in this province, which allowed patients involved to be on an oversight panel and the hiring of an independent consultant to audit the progress of the recommendations of the Cameron Inquiry.

Cameron presided over that inquiry, but she was not involved in the class-action case.

Based on those developments, Crosbie said if the light cigarette case seemed "rather odd" in 2008, it no longer is.

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