Banning tobacco advertising in SA may be harmful to the nation's health, writes Anthony Norton

THE department of health's proposal to ban the advertising of tobacco products is certain to test the limits of the constitutional protection of freedom of expression.

No doubt the tobacco companies will contend that their right to advertise their products falls squarely within the right of freedom of expression. This provides that everyone has the right to freedom of expression, which includes, among other things, freedom to receive or impart information or ideas. Accordingly, they would claim legislation seeking to outlaw such advertising is unconstitutional.

If the practices in the US and Canadian constitutional cases are followed, our Constitutional Court is likely to be faced with a two-stage inquiry.

First, does cigarette advertising fall within the ambit of freedom of expression, and second, is government's interest in regulating such advertising substantial, such that regulation directly advances government's interest and does so in a manner that is no more extensive than is necessary?

The first stage of the inquiry is likely to be decided in favour of the tobacco companies. The advertising of cigarettes, whether directly in magazines, movies and on billboards, or indirectly by sponsorship of sporting events, will in all probability be deemed "commercial expression" and therefore subject to constitutional protection. In the US, commercial expression does not enjoy the same level of protection as political, cultural or artistic expression.

In Canada, on the other hand, commercial expression enjoys the same protection as other forms of expression.

Irrespective of whether the Constitutional Court chooses to follow the American or Canadian model, it seems likely tobacco companies will succeed in demonstrating that cigarette advertising is indeed expression falling within the ambit of a constitutional right.

The second leg of the inquiry will be a more difficult one, and one which is certain to raise a variety of issues. The argument before the court will essentially revolve around the question of whether the regulation of tobacco advertising directly promotes government's interests and whether it does so in a manner that it is no more intrusive of the right to freedom of expression than is necessary to attain government's objective.

This raises the obvious question of what government's interest is in banning the advertising of tobacco products.

Government's reply will no doubt be that smoking cigarettes is deleterious to one's health, and a ban on the advertising of tobacco products will lead to a decline in the number of people smoking and consequently a corresponding decline in the number of people suffering from smoking-related illnesses. This in turn will relieve the drain on the health budget.

The argument will proceed further that in order to achieve this objective the means adopted by government is no more extensive than is necessary to serve the governmental interest and has been tailored in a reasonable manner to achieve the desired objective.

The salient point at issue will be whether a sufficient nexus can be shown between a ban on the advertising of tobacco products and a consequent decline in the number of people smoking and a corresponding decrease in the number of smoking-related illnesses.

This connection will have to be proved to a considerable extent to obviate the harm incurred by infringing the right to freedom of expression. y non-smokers.

Although government will no doubt try to have the ban on tobacco advertising seen in relation only to the alleged harm caused by smoking, it is suggested that the ban should be seen in the broader context of infringements against commercial speech in general.

If the purported interest in banning tobacco advertising is to protect the public at large from the alleged harm caused by smoking, then surely the public should also be protected from the harm caused by alcohol, which is arguably more dangerous to the uninitiated than smoking could ever be proved to be, and also poses dangers to innocent third parties who may be the victims of drunken driving, domestic violence and so forth.

While tobacco products are required by law to bear labels stating that the products are dangerous to one's health, no such requirements have been stipulated for alcoholic beverages. Similarly, excessive consumption of red meat has also been medically proven to contribute to among others, heart disease and obesity, which also present a real potential danger to the public.

Presumably, once tobacco advertising had been prohibited, lobby groups could turn their attention to alcohol, red meat and any other substance or products which could pose potential dangers to the public.

Should the advertisement of alcohol, red meat, rave energy drinks and other products which could conceivably cause harm to the public also be banned? Similarly, should advertising by casinos which promotes gambling and causes a variety of social ills not also be banned so as to demonstrate some form of consistency in eradicating social ills?

Although, the Constitutional Court may decide to follow the US constitutional authorities and afford lesser protection to commercial expression than other forms of expression, the fact remains that commercial proprietors have a considerable interest in disseminating their message so as to facilitate the effective functioning of a capitalist economy.

If government is permitted to erode freedom of expression under the guise of safeguarding the public's interest, it will not be long before they will turn their attention to artistic expression and other forms of expression which could be said to be "dangerous" to public morals.

� Norton is an attorney with Hofmeyr Herbstein Ginwala & Cluver Incorporated.