PART IV

PROMOTION

Definition of ``promotion''

18. (1) In this Part, ``promotion'' means a representation about a product or service by any means, whether directly or indirectly, including any communication of information about a product or service and its price and distribution, that is likely to influence and shape attitudes, beliefs and behaviours about the product or service.

Application

(2) This Part does not apply to

    (a) a literary, dramatic, musical, cinematographic, scientific, educational or artistic work, production or performance that uses or depicts a tobacco product or tobacco product-related brand element, whatever the mode or form of its expression, if no consideration is given directly or indirectly for that use or depiction in the work, production or performance;

    (b) a report, commentary or opinion in respect of a tobacco product or a brand of tobacco product if no consideration is given by a manufacturer or retailer, directly or indirectly, for the reference to the tobacco product or brand in that report, commentary or opinion; or

    (c) a promotion by a tobacco grower or a manufacturer that is directed at tobacco growers, manufacturers, persons who distribute tobacco products or retailers but not, either directly or indirectly, at consumers.

Prohibition

19. No person shall promote a tobacco product or a tobacco product-related brand element except as authorized by this Act or the regulations.

False promotion

20. No person shall promote a tobacco product by any means, including by means of the packaging, that are false, misleading or deceptive or that are likely to create an erroneous impression about the characteristics, health effects or health hazards of the tobacco product or its emissions.

Testimonials or endorse-
ments

21. (1) No person shall promote a tobacco product by means of a testimonial or an endorsement, however displayed or communicated.

Depiction of person

(2) For the purposes of subsection (1), the depiction of a person, character or animal, whether real or fictional, is considered to be a testimonial for, or an endorsement of, the product.

Exception

(3) This section does not apply to a trade-mark that appeared on a tobacco product for sale in Canada on December 2, 1996.

Advertising

22. (1) Subject to this section, no person shall promote a tobacco product by means of an advertisement that depicts, in whole or in part, a tobacco product, its package or a brand element of one or that evokes a tobacco product or a brand element.

Exception

(2) Subject to the regulations, a person may advertise a tobacco product by means of information advertising or brand-preference advertising that is in

    (a) a publication that is provided by mail and addressed to an adult who is identified by name;

    (b) a publication that has an adult readership of not less than eighty-five per cent; or

    (c) signs in a place where young persons are not permitted by law.

Lifestyle advertising

(3) Subsection (2) does not apply to lifestyle advertising or advertising that could be construed on reasonable grounds to be appealing to young persons.

Definitions

(4) The definitions in this subsection apply in this section.

``brand-
preference advertising''
« publicité préféren-
tielle »

``brand-preference advertising'' means advertising that promotes a tobacco product by means of its brand characteristics.

``information advertising''
« publicité informa-
tive »

``information advertising'' means advertising that provides factual information to the consumer about

      (a) a product and its characteristics; or

      (b) the availability or price of a product or brand of product.

``lifestyle advertising''
« publicité de style de vie »

``lifestyle advertising'' means advertising that associates a product with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.

Packaging

23. No person shall package a tobacco product in a manner that is contrary to this Act or the regulations.

Sponsorship promotion

24. (1) Subject to the regulations and subsections (2) and (3), a person may display a tobacco product-related brand element in a promotion that is used in the sponsorship of a person, entity, event, activity or permanent facility if the person, entity, event, activity or facility

    (a) is associated with young persons or could be construed on reasonable grounds to be appealing to young persons or if young persons are its primary beneficiaries; or

    (b) is associated with a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.

Display of brand element

(2) A person may display a tobacco product-related brand element only within the bottom ten per cent of the display surface of any promotional material.

Promotional materials

(3) A person may use promotional material that conforms with subsection (2) and that displays tobacco product-related brand elements

    (a) in a publication that is provided by mail and addressed to an adult who is identified by name;

    (b) in a publication that has an adult readership of not less than eighty-five per cent;

    (c) in signs or programs available on the site of the event, activity or permanent facility; or

    (d) in signs in a place where young persons are not permitted by law.

Other sponsorship

(4) Where the criteria described in paragraphs (1)(a) and (b) do not apply to a sponsorship, a person may, subject to the regulations, use a tobacco product-related brand element in the promotion of the sponsorship.

Name of facility

25. If a tobacco product-related brand element is part of the name of a permanent facility, the tobacco product-related brand element may appear on the facility in accordance with the regulations.

Accessories

26. (1) Subject to the regulations, a manufacturer or retailer may sell an accessory that displays a tobacco product-related brand element.

Promotion

(2) No person shall promote an accessory that displays a tobacco product-related brand element except in the prescribed manner and form and in a publication or place described in paragraphs 22(2)(a) to (c).

Non-tobacco product displaying tobacco brand element

27. No person shall furnish or promote a tobacco product if any of its brand elements is displayed on a non-tobacco product, other than an accessory, or is used with a service, if the non-tobacco product or service

    (a) is associated with young persons or could be construed on reasonable grounds to be appealing to young persons; or

    (b) is associated with a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.

Exception - tobacco product

28. (1) Subject to the regulations, a person may sell a tobacco product, or advertise a tobacco product in accordance with section 22, if any of its brand elements is displayed on a non-tobacco product, other than an accessory, or used with a service, if the non-tobacco product or service does not fall within the criteria described in paragraphs 27(a) and (b).

Exception - non-tobacco product

(2) Subject to the regulations, a person may promote a non-tobacco product, other than an accessory, that displays a tobacco product-related brand element, or a service that uses a tobacco product-related brand element, to which section 27 does not apply.

Sales promotions

29. No manufacturer or retailer shall

    (a) offer or provide any consideration, direct or indirect, for the purchase of a tobacco product, including a gift to a purchaser or a third party, bonus, premium, cash rebate or right to participate in a game, lottery or contest;

    (b) furnish a tobacco product without monetary consideration or in consideration of the purchase of a product or service or the performance of a service; or

    (c) furnish an accessory that bears a tobacco product-related brand element without monetary consideration or in consideration of the purchase of a product or service or the performance of a service.

Retail display of tobacco products

30. (1) Subject to the regulations, any person may display, at retail, a tobacco product or an accessory that displays a tobacco product-related brand element.

Signs

(2) A retailer of tobacco products may post, in accordance with the regulations, signs at retail that indicate the availability of tobacco products and their price.

Communica-
tion media

31. (1) No person shall, on behalf of another person, with or without consideration, publish, broadcast or otherwise disseminate any promotion that is prohibited by this Part.

Exception

(2) Subsection (1) does not apply to the distribution for sale of an imported publication or the retransmission of radio or television broadcasts that originate outside Canada.

Foreign media

(3) No person in Canada shall, by means of a publication that is published outside Canada, a broadcast that originates outside Canada or any communication other than a publication or broadcast that originates outside Canada, promote any product the promotion of which is regulated under this Part, or disseminate promotional material that contains a tobacco product-related brand element in a way that is contrary to this Part.

Report to Minister

32. Every manufacturer shall provide the Minister, in the prescribed manner and within the prescribed time, with the prescribed information about any promotion under this Part.

Regulations

Regulations

33. The Governor in Council may make regulations

    (a) respecting the promotion of tobacco products and tobacco product-related brand elements and the packaging of tobacco products, including the form, manner and conditions of the promotion and packaging, and the promotion of services and non-tobacco products for the purposes of section 28;

    (b) respecting the advertisement of tobacco products for the purposes of subsection 22(2);

    (c) respecting the use of tobacco product-related brand elements for the purposes of subsection 24(4);

    (d) prescribing the manner in which a tobacco product-related brand element may appear on a permanent facility;

    (e) respecting, for the purposes of subsection 26(1), the manner in which a tobacco product-related brand element may appear on an accessory;

    (f) respecting the display of tobacco products and accessories at retail;

    (g) respecting signs that a retailer may post under subsection 30(2), including the placement of the signs and their number, size and content;

    (h) requiring manufacturers to disclose the particulars of their tobacco product-related brand elements and promotional activities;

    (i) prescribing anything that by this Part is to be prescribed; and

    (j) generally for carrying out the purposes of this Part.

PART V

ENFORCEMENT

Inspection

Designation of inspectors and analysts

34. (1) The Minister may designate any person or class of persons as an inspector or analyst for the purposes of this Act and must provide every inspector and analyst with a certificate of designation, in the form determined by the Minister.

Certificate must be produced

(2) An inspector entering a place under this Act must, on request, show the certificate to the person in charge of the place.

Places inspectors may enter

35. (1) For the purpose of ensuring compliance with this Act, an inspector may, subject to section 36, at any reasonable time, enter any place, other than a means of transportation, in which the inspector believes on reasonable grounds

    (a) a tobacco product is manufactured, tested, stored, packaged, labelled or sold;

    (b) there is anything used in the manufacture, testing, packaging, labelling, promotion or sale of a tobacco product; or

    (c) there is any information relating to the manufacture, testing, packaging, labelling, promotion or sale of a tobacco product.

Powers of inspector

(2) In carrying out an inspection, an inspector may

    (a) examine a tobacco product or thing referred to in paragraph (1)(b);

    (b) require any person in the place to produce for inspection, in the manner and form requested by the inspector, the tobacco product or thing;

    (c) open or require any person in the place to open any container or package found in the place that the inspector believes on reasonable grounds contains the tobacco product or thing;

    (d) take or require any person in the place to produce a sample of the tobacco product or thing;

    (e) conduct any test or analysis or take any measurements; or

    (f) require any person found in the place to produce for inspection or copying any written or electronic information that is relevant to the administration or enforcement of this Act.

Use of computers and copying equipment

(3) In carrying out an inspection, an inspector may

    (a) use or cause to be used any computer system in the place to examine data contained in or available to the computer system that is relevant to the administration or enforcement of this Act;

    (b) reproduce the data in the form of a print-out or other intelligible output and take it for examination or copying; and

    (c) use or cause to be used any copying equipment in the place to make copies of any data, record or document.

Entry of dwelling-
place

36. (1) An inspector may not enter a dwelling-place except with the consent of the occupant or under the authority of a warrant issued under subsection (2).

Authority to issue warrant

(2) On ex parte application, a justice, as defined in section 2 of the Criminal Code, may issue a warrant authorizing the inspector named in the warrant to enter and inspect a dwelling-place, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath

    (a) that the dwelling-place is a place referred to in subsection 35(1);

    (b) that entry to the dwelling-place is necessary for the administration or enforcement of this Act; and