 My name is Joanna Ervin and I'm the Acting Associate Director of the Health Law Institute and it's a pleasure to welcome you to our Health Law and Policy Seminar Series. This is our last seminar of the academic year and so let me take this opportunity to thank you for being such an engaged audience throughout our series. We really appreciate you coming and contributing to each and every one of our speakers' presentations and it's really been quite a wonderful year of conversation and engagement so thank you. And it's my absolute pleasure to welcome Oscar Cabrera to present for our final seminar beyond being a long time. We feel old now when we're able to say we've been friends for so long in the field but we have been friends for a very long time. Oscar is the Executive Director of the O'Neill Institute for National and Global Health Law at Georgetown University Law Center. And so this institute is a pretty remarkable institute. It's a globally recognized leader in the field but it also occupies a very particular niche and this is what I wanted to speak to. It has a particular strategic advantage and this is that it's focused on the way in which and to try and understand law as a fundamental tool for addressing critical health issues in our communities. And I say this because the Center really focuses on law as a positive tool rather than focusing only on the limitations of law or how law contributes to poor health. I think this is quite a different orientation for lawyers in global health and Oscar and his team have very much put this idea into play, very creative in their use of law and its constructive capacities and you can see this in the number of areas in which they work. So I'd invite you to jump onto the website of the institute but I see Oscar's also brought a number of brochures about the institute here so if you're interested in it you can see they're engaged in food and drug law, global health governance, health and human rights with a particular focus on reproductive health, trade investment in health and infectious and non-communicable diseases. And so today Oscar will present, you can see in the slide, on international and comparative law perspectives on tobacco and alcohol marketing regulations. So Oscar will present for about 40 minutes and then we will open the floor for questions and conversation. So go Oscar. Thank you very much Geron and thank you for the invitation to be here. I was looking at the previous slide, this is the health law seminar 2015-16 and connecting with what Joanna was just saying. The last time I was in Dalhousie was actually 2006 for the national health law conference and that was a student back then. I'm at the University of Toronto. So it's been 10 years. I think we can say we know each other for a long time. 10 years seems like a lot. So today what I want to talk about really I want to leave a lot of time for questions like try to, I would say this, I'll try to make it short and then of course I end up talking for the whole time they gave me, but I'll try. I'll make an effort to make it very short and concise. I'll be talking about non-communicable diseases, race factors for non-communicable diseases and how do we see law and human rights law in particular relate to race factors for non-communicable diseases and then I really want to focus on one of the key interventions that we have been seeing that is successful in tobacco that we're now thinking and applying to alcohol, food on healthy foods which is restriction of marketing. So that's a space in which we're going to spend more time talking about marketing restrictions from a legal policy perspective and make some reference to a couple of the most important cases that we have seen in the context of tobacco and marketing. So this is a structure of my presentation. There's very three big areas, human rights and NCDs, why human rights and NCDs, then a little bit on freedom of expression in the context of marketing and then try to really navigate on whether there's actually a conflict or not. We like to think there's not a conflict between human rights and marketing restrictions and we'll talk about that when we get to that. Joanna already was very kind to introduce the work we do at the institute. I have a couple of slides here and I always include this because it's a different model. We are, if I want to kind of summarize it in a sentence, we are operating almost like a thin tank within the law school. A research institute but also is very engaged in the applied side of the work. And I think that's a space in which health law tends to live. It's not just theory, it's very important theory and we really do pay a lot of attention to scholarship and supporting the knowledge generation but a lot of our work is how do we translate that into practice? How do we work with the key actors, governments at the specific national level, international organizations, civil society organizations. So we work in that in between a space. Joanna mentioned there are seven thematic areas. We're very ambitious so we try to cover everything under health law. And as Joanna said, we don't have a thematic area on reproductive rights but we fold that into health and human rights how our approach has been to reproductive rights. The institute is small for what we're trying to do. We're 20 people full-time working at the institute. We have lawyers, associates, fellows. We have the directors who are either recognized in their field and then we bring them to the institute so they can build specific programs in specific areas. In addition to that, we have faculty members that are engaged with the work of the institute but they're not count on the point when I say that we have 20 people at the institute. So these are the basic three lines of work. Scholarship publications. It's a lot about applied research. Capacity building. You're fortunate in Canada. I always use Canada as an example of one of the countries that has been leading this kind of development of capacity in the health law space. But when we look outside maybe a handful of countries, there's not a lot of places in which we have lawyers that are strengthening capacity to health law work. So we spend a lot of time trying to strengthen those capacities. We have partnerships with universities from all over the world but also with international organizations and regional organizations about strengthening capacity of future actors like a law school but also strengthening capacity of current health actors. Training ministries of health also legal actors that engage in the health space. And our research projects, that's where we spend most of our time and most of our work. I wanted to say if you have any questions while I'm presenting, if something is not clear, if my Spanish accent is distracting or you're not getting what I'm saying, feel free to interrupt and I can clarify. So why NCDs and human rights? Let's start with non-communicable diseases. We know at the center, these are the diseases. Chronic diseases, diabetes, cardiovascular disease, cancers. The work that we try to do from a legal regulatory perspective on non-communicable diseases is not focusing on the access piece on the treatment side but trying to tackle the risk factors for non-communicable diseases. And we know those are the four key risk factors. Harmful use of alcohol, tobacco use, physical inactivity and unhealthy diets. So we build projects and we build like a research and our analysis around how do we use law as a tool to try to tackle those risk factors. What are some of the interventions that are backed by evidence that we can use to minimize the impact that those risk factors have in society as a whole? But the question is here, why human rights? We started from this both from an academic but also from a practical perspective. The industry, in this case the tobacco industry, but the same argument could be made for the food industry or the alcohol industry to a certain extent co-opted the human rights argument. When you speak to traditional human rights actors, for example, we have a hearing next month in front of the Inter-American Commission on Human Rights and when you speak with those traditional human rights actors, they still don't see why non-communicable diseases is a human rights issue. Why should we frame it around a state obligation to protect health of the population? And I think part of that has to do with the influence of the industry and how they frame that debate. It's all about that idea of a paternalistic state coming in and taking away our freedoms. Why is the government telling me what to eat, where to smoke, how much to drink? Is that idea that they're setting conflict between civil and political rights and these public health goals that we're trying to achieve? And I say that because I live in both worlds. I spend a lot of time in the health law world, that's where the institute is, but I come from a human rights sort of background. So I do a lot of work with UN bodies with regional human rights mechanisms and with key actors at the country level that work on human rights. And I mentioned that here in front of the Inter-American Commission and it took us over a couple of years to convince the commission that industry behavior in the context of tobacco arise for a human rights issue. It was at that level that the state needed to intervene to prevent industry from continuing to harm health. When I say that to people in the public health community, I say it's obvious, we all know that, right? There's no question about it, but we tend to live in that public health bubble. If we go outside that, we still haven't been able to mainstream this in the broader human rights community or the very legal community for that matter. So this is another argument not only to shift the legal debate from what the industry has been arguing to what we think is a more comprehensive and more integral way to see human rights obligations but also to really strengthen a point. In a lot of countries using a human rights argument really strengthen a state position, a government position to try to push for policy reform. These are some of the practical reasons, impetus for policy reform that I just mentioned, how we can use these NCDs international agreements being binding agreements or non-binding agreements to inform the content of state obligations. How do we inform the right to health with the WHO recommendations on marketing of foods and non-alcoholic beverages to children? They really need to come up with a shorter opinion for those recommendations. How do we use the Framework Convention on Tobacco Control to really define the content of state obligations when it comes to health? And that I think it's a very compelling story when we consider it like that. Also the recommendations, the use of human rights tools, human rights mechanisms to monitor compliance with health obligations. This is a work we started to do at the UN in 2008 to try to get UN actors to assess state obligations but using health treaties as a proxy to then assess right to health obligations. So there's a UN resolution on NCDs that was adopted in 2010. The only other time the UN General Assembly has adopted a health-related resolution was with HIV. So we do think there's already a momentum kind of growing of the international community to try to really consider NCDs as a priority but also consider NCDs a human rights issue. And we now need to do the legal work and the more technical work to try to make that happen. Very basically, freedom of expression. I'm not going to spend much time talking about this. These are very basic ideas. Freedom of expression is a fundamental right. We all know that. The human rights movement really took on civil and political rights of their heart and freedom of expression is one of the most fundamental rights. It's universally acknowledged both as a fundamental right and a foundational human right. It's a cornerstone of democracy. The right to freedom of expression is protected by a multitude of regional and international treaties. So we know that. The questions here is whether commercial speech fits under the right to freedom of expression. And that's where I'm going to probably base most of my presentation. Is this cover on the right to freedom of expression? Should it be cover? How do we make sure that we build a cohesive legal framework to assess that and to answer that question? There are two basic arguments or two basic lines of thought that you can follow here and then we'll connect this with case law. One is that it's not protected. That commercial speech is not a protected category under the right to freedom of expression. Why? Because what we try to do with commercial speech is just to sell a product. We're not engaged in exchange of ideas which is what people think it's at the core and scholars in this space think it's at the core of freedom of expression. The other argument is it is protected under the right to freedom of expression but the right to freedom of expression can be limited. It accepts limitations. At the UN level when you see how the right is enshrined, it does accept limitation but also at the constitutional level. And I'm a little bit rusty on Canadian constitutional law because I looked at it last time in 2005 but I think there's a test called, is it OAK's test to restrict rights in the Canadian charter? Is that same principle? If we have a right that is enshrined in international human rights law, how do we develop a test to determine if restrictions of those rights are justifiable? Which in this case would be applying that OAK's test to that. So those are the recommendations that I'm going to use as another example although these are not on alcohol, these are non-alcoholic beverages. There's a lot of evidence that informs that companies are trying to market their product and in this case it influences children's food purchases and in general the consumer. And here I just want to make a pause and talk about evidence. How do we integrate evidence into this space? When we think of law and health law, if we think it exclusively from the legal perspective we're not necessarily developing methodologies to use evidence to inform our work. And that has been one of the challenges. When courts want to be very restrictive they put most countries in a catch-22 situation because they require you to provide evidence of the effectiveness of the measure that you want to implement before you can implement the measure. So in New York if Bloomberg wanted to ban large portions of sodas one of the arguments was he needs to prove that banning the large size will have an impact on reduction on consumption of sodas across the board or the slurpee or whatever were the drinks that were going to be banned. One of the challenges of the only way to generate that evidence is by having the measure in place and assessing the impact of the measure. So you're not letting me try but you're requiring this very high evidence-sharing proof when you need to assess whether the measures are proportional or effective, etc. That's one of the challenges that we're seeing in the space of non-communicable diseases. There's this push to try to use the language of evidence-based but to an extreme that is limiting what countries can do in terms of regulatory approaches. We, of course, will have the trade blazers, the Uruguays of the world or New York or some provinces or states that will try. And they'll try it and then they'll come up with some data and maybe your jurisdiction will allow you to present comparative data from another country because that's happened also in the US. Our epidemiological distribution of disease and populations is different so that data doesn't reflect how this will have an impact here. You need to generate specific data of the situation here. And Larry Gostin, who's a scholar in health law, global health law, always uses the example of, and he's the faculty director of the UNIL Institute, he uses the example of why do we require that high level of evidence for health policies but not for other policies across the board. We never require that evidence when countries are trying with economic policy. We don't require it to prove that increasing taxes, reducing taxes, is going to have an impact on unemployment or not. We just let them try because we think it's within the current priority to try to make the most out of the policy in health law. We continue to do that and we need to be careful because as lawyers and when we are engaging litigation in the context of tobacco, it's very easy to have that evidence. There's a lot of studies that can prove the effectiveness of the measure or that can prove that the only effective measure is a full ban on marketing and we'll talk about that in a sec. But in other spaces, we need to have more flexibility. We need to build a legal test so governments have that flexibility to regulate and they're not tied necessarily by that evidence. So this is more content from WHO recommendations. There's evidence of the effectiveness of marketing regulation. The overall objective of the policies should be to reduce exposure and to protect children. These are recommendations that are very... I don't know what happened there. There's some issue with the formatting of the PowerPoint. But you can look at this recommendation. They talked about specific actions that states can take. They put a lot of burden on the state to develop those domestic sort of ways of implementing and measure the effectiveness of the intervention. And I'll stop now and ask any questions from what I've said before. Things that are not clear. No? Okay. So then I'll go to the core of the presentation, which is rights in conflict. So the tobacco industry versus ban on advertisement. This has been a long, long history of litigation against any government regulation that tries to restrict commercial speech. They have... You probably know a lot about tobacco and how the industry has behaved and how they have tried to assert their constitutional rights without using proper evidence. So there's a lot of data on that. But the main argument here that the industry... Sorry. Yes, that the industry is trying to make is that ban on advertisement, promotion and sponsorship violates its right to freedom of commerce and right to freedom of expression. That's the main argument. When a country decides to restrict or ban on marketing, they're affecting our fundamental rights. Therefore, they should be stricken down by court. Our argument from a human rights perspective is that the right to health permits and requires restrictions on commercial speech. Without the evidence that marketing is leading to an increased consumption of the product and the companies are using that marketing to target children, target vulnerable populations, then there's a positive obligation on the state to intervene and regulate those spaces. That's how we're trying to develop that argument. The right to health imposes an obligation to regulate those spaces. When I talked about this in the U.S., it's a little bit harder to picture a constitutional violation by omission in that if you do nothing, you're violating the constitution because of the idea of a negative constitution. But in human rights law and in other countries, we do have positive obligations enshrined at the constitutional level. So doing nothing can be unconstitutional, and that's the main argument. Inaction in this space could be framed as a constitutional right violation and human rights violation. So this is the main industry argument. Advertising and marketing are protected from social speech. The four restrictions on product marketing violate freedom of expression. Freedom of expression prohibits any kind of censorship, which is true, and advertisement and marketing are protected from social speech. What are some of the counterarguments? And this I mentioned a little bit before. The first one is that commercial speech is not considered protected under the right to freedom of expression. Freedom of expression is the means to express concerns, opinions, or ideas. Commercial speech is the expression of ideas relating to only the issuer's economic interest. So what is advertising doing? It's really trying to position a product in the market. It's not, as a general rule, giving any information on the product. It's not a way in which companies are engaging in political, social, sort of cultural debate. We need to be careful about how we frame this argument. And towards the end, I'll end the question and answer. I'll have a comment about that. The second line of argument is commercial speech is protected under the right to freedom of expression, but this right requires, allows for limitations. The challenge there connects with what I said before. To justify the limitation of the right to freedom of expression, which is an essential fundamental right in which any test is going to be applied with a higher sort of level of scrutiny, you really have to have a lot of evidence that sometimes is very hard to gather. So that's one of the, it's a practical challenge. I think it's also can make the academic argument on this first point, but that's a practical dimension. If you were to concede this, how are you going to generate the evidence that justify limiting this fundamental right? So another industry argument, because of the importance of freedom of speech, the state must not be allowed to pass a prior judgment on the value of any speech. This previous censorship, before you speak, you're limiting what you said. The country argument is that because the right is less protected, a prior restriction can be justified. This is one that is important, consumers have the right to information, and the basic country argument is that in marketing, there's not a lot of information that is being provided to the consumer, right? And it's interesting because in a lot of countries, you don't have a right to obligation in shining legal even at the UN level or inter-American system level. The right to access of information is the flip side of the right to freedom of expression, right? On one side you have freedom of expression, on the other side you have the positive dimension of that right, which is the right to access to information. The country argument is that, yes, consumers have the right to accurate information, which is the price and content of the product, but that doesn't necessarily come through advertisement. Another argument, advertising restrictions violate freedom of commerce, which when the argument cannot be built around freedom of expression, they say, but freedom of commerce can be affected by it. The main country argument that this is an easier one in courts having very kind of navigated this in an easier way is just to say that your main economic driver is to sell your product, to put your product in the market, to produce manufacturing, to sell your product. It's not at the core of your commercial freedom to advertise for your product. So that is not even considered part of your core economic freedoms. So this is how proportionality test will work, and this is how it worked in Panama. The Supreme Court of Panama decided that commercial speech was a protected category under the right to freedom of expression, and they decided to do this proportionality test. They said that a restriction was justified with the evidence they had. I'm very concerned about that argument, whether that argument can be a case like that could be went outside of Panama. And the main thing is that when it comes to this part of the test, and I don't want to bore you with a lot of legal human rights technicalities, but when it comes to necessity, that specific step of the test requires you to prove that there's not an alternative intervention that will help you achieve the same goal, but it will be less restrictive on the rights that you're trying to limit. So how do I generate evidence that demonstrates that a full ban is the only way to have the impact that I'm trying to seek, and not a ban that allows for marketing between 1 a.m. and 2 a.m.? How about a full ban but an exception to direct communication with consumers? How do I generate that data that those specific measures are not going to help me achieve the same outcome? When you have a more flexible test, you allow more flexibility for the policy decision-making, but when it's a very narrow test, it's harder to come up with that data. In this case, the court really require and kind of use the evidence they have there to build their answer to the case. I think this is one of the main cases from Colombia, from the Constitutional Court of Colombia, and I don't know how many of you are familiar with the Constitutional Court of Colombia, but in the health space, there have been at the forefront of really defining state obligations when it comes to health. They're regarded as one of the most... I was going to use the word progressive, but that's probably not what I wanted to say about the court, but they have elaborated on specific content of the right to health. So they challenge a law that ban advertisement of tobacco products or restricted advertisement of tobacco products. This is something I wanted to mention, because in every region, every country, whenever there's any intervention that tries to regulate tobacco, we'll see the same thing with alcohol, with food, that tries to establish some sort of regulation on the product, those measures are challenged in court. That's going to happen. I mean, the industry, the tobacco industry had what they call the unlimited checkbook for tobacco control litigation. So they were going to challenge everything. Right now, we all might agree that smoke-free places are... they're a valid measure, right? There's evidence, there's the main argument there is that it's fine if you have your freedoms, but your actions shouldn't affect the rights and the health of other people, so you shouldn't smoke in an enclosed public's place. So I thought that we were past that. But in 2011, when Peru enacted a smoke-free law, the tobacco industry challenged it in court. Even after they have lost other cases, even after we know that this is not that complicated to justify legally, they still are going to try to challenge that. This reduced to a larger issue that I mentioned now, but we can discuss in more detail the Q&A, which is this corporate behavior in the health space. How do we really can anticipate? And how can we think of health lawyers? How do we build solid arguments to try to prevent these kind of corporations for affecting policy governments that... policies that government want to push forward? And I said, I mean, I was watching TV last night. I tried not to watch the Republican debate, but it was such an attractive thing. I was there on TV, and I said just a little bit, and this was more for their standards. It was more stabilized. There was not a lot of name calling, but still I watched a little bit of that. But then I was going through the channels, and I saw this ad from Coca-Cola. It's a Canadian ad that looked exactly like tobacco companies advertisement from like 20, 25 years ago. Associating freedom with drinking Coca-Cola. Like people like playing sports and drinking Coca-Cola. I mean, not a lot of people that are into competitive sports will drink Coca-Cola after all the other things they'll go for. But it was very similar. People like in a motorcycle with Coca-Cola, it's very uncomfortable to have a drink with a motorcycle. But it's that idea of freedom, connecting the product with trying to create that perception in society that okay, this relates to my autonomy, my self-determination. I'm free and I drink Coca-Cola, which is the same argument that we all bought from the tobacco industry. I started smoking when I was 15, and I smoked for 10 years. And I started smoking because that was kind of already built into my understanding of life and society. I mean, growing up, my father was a smoker. I was still in Johanna this morning over breakfast. I went to elementary school, and I had a Malboro backpack, which right now will be very in front of me. But it was totally normal. I had my backpack, my notebook, I had a jacket, everything was just branded. So I already had developed that loyalty with a brand that I didn't even was a kind of consumer of, and I couldn't be. I started smoking when I was 15. So that's 10 years before the receptors in my brain fully developed. So I was overstimulated. I was overstimulated for nicotine. So that's what the industry is trying to do. The industry is trying to position their product so they can get more, the tobacco industry, more consumers. And now we're seeing the same thing with the food industry. The same thing with the alcohol industry. Now it's like drinking and freedom, sponsoring concerts. We get rid of the governments having tried to restrict marketing of tobacco on sports. And then what? When we didn't have like the Malboro soccer tournament, it got replaced by whatever, the Vodweiser soccer tournament. And now that maybe there's already something, how do we restrict this and try not to associate alcohol with sports? Now it's a Coca-Cola soccer tournament. And it's fine. If you look at the Olympics, the main sponsors of the Olympics are Calvary, Coca-Cola, McDonald's. So they're really trying to position, create that connection in society. I think when, if I were to put this on a scale of easy and hard to regulate, and I know this has been recorded, and I don't want to say that it was easy to regulate tobacco. There was a lot of work that went behind that and it was many years of work to get to the point in which we're right now. But it's one product. One single product. We want to see that. People argue that there are differences. It's the same cigarette. There's not a lot of difference. The different brands. And there's seven big corporations. And those are the ones driving this. Seven corporations, one product. When we go to alcohol, we have three industries. Beer, wine, spirits. With those industries, we have local producers, regional producers, international. We have the Pernod Ricards and the Ajayos. But we also have the local, sure there's Nova Scotia beer producers, or... There might be. There might be, I don't know. So that's a different regulatory scheme when you look at how do we regulate those big corporations or how do we really engage with... So it becomes a little bit harder. On tobacco, we argue that no use of tobacco or every use of tobacco is harmful to health. One cigarette is harmful to health. With alcohol, we frame it as excessive use of alcohol. It's harmful to health. So then we already have created some more complication for a regulatory pathway in the case of alcohol. When it comes to food, that's kind of very complicated. Food is essential for human life. And we really need to look at industries, different industries, everything from fast food to junk food to whole food. So it's a much more complex regulatory scheme because it has to do with where do you buy the product? How do you control price differences? I was telling Joanna, one of our projects we're trying to elaborate right now is to try to assess where countries should focus on when it comes to food regulation. There are countries like the U.S. in which the price point has already shifted. So it's much more expensive to eat healthy than to eat junk food. Maybe Canada is at that point. I'm not sure if it is. It's harder to really try to get to people that in the lower socioeconomic status they're going to go for the cheaper option. Maybe if you give them information you try to use this traditional ways to regulatory ways or ways to engage with consumers. I don't think we're going to make that much traction unless we focus on price. But in other countries in which that price shape hasn't happened, maybe the focus should be agricultural subsidies. Let's try to keep those prices there. So junk food fast food continues to be not the default choice but the expensive choice. In the context of marketing it's similar. Where do we focus on marketing? Marketing restrictions tend to have an impact across the population, but of course they have more impact on middle class and higher socioeconomic status that get more influenced by this type of access to informational campaigns of government and restrictions on marketing. So none of this was in the presentation so we make a slight detour. I was checking the time and said I'm doing very good at time and now I might not be doing good at time. So advertisement of tobacco products this is what the court in Columbia said advertisement of tobacco products is to encourage consumption of tobacco. Consumption of tobacco has been deemed considered high risk activity by the government. Therefore, activities involving risk should be regulated by the state. It's a very simple sort of legal analysis. Second step was the goal of advertising is not to inform but to simply change consumer preferences. Therefore, advertising is grounded in commercial freedom and not in freedom of expression. They argue that it's a success of a right to commercial freedom. And therefore the conclusion is commercial freedoms allow the authorizer allow greater restriction. So you can restrict commercial freedom. This is an interesting idea that they're borrowing from literature about a passive market which is an activity that is tolerated is decriminalized, is tolerated in society but the government will impose specific regulatory measures to minimize their impact in society to not promote to kind of restrict how that activity is carried out in society. I know people are taking notes from the case language. More than happy, we have an English translation of the case. I think the translation of a summary is 100 pages long but we're happy to, yeah. The Constitutional Court of Columbia is known for having very long decisions. There's a decision on the restructuring of the healthcare system. I think it's around a thousand pages, the decision, and I have to confess here and even on video that I have only read maybe 300 page summary of the case. I've never read the entire decision. But I can share that with you. Maybe, John, I can give it to you if the students are interested. We can look at this case before I finish. So I have two more minutes. That's what we're talking about here in the case of marketing. Marketing restrictions is how do we build a system, a legal system around specific products or behaviors in society that allow us to minimize the negative impacts that they may have and maximize the potential benefit. So how do we bring things from criminal law to a regulatory scheme? And how do we bring, which is from a complete free market to a space in which the government can regulate? And I'll finish with an example that has nothing to with the title of my presentation of what you were told I was going to be talking about, which is marijuana. Right now we're at that point in which we're thinking how do we bring marijuana from a space in which there's a lot of evidence that criminal law in the context of cannabis is not achieving what we expected criminal law to achieve? We have a lot of evidence. How do we bring that to a legalization process but build a very strong regulatory system so we regulate how the product is marketing of the product? We regulate the price. Who can sell? Who can buy? Who can consume? And the state can take more ownership of that regulation. So it doesn't minimize, it doesn't undermine public health gains. That's where a lot of the work that we do in this space at the Institute is trying to find that spot. What type of regulations we need to put in place so we continue to protect public health but we do it in a way that it's getting us where we need to go. Some people say free market, it fix by itself, it never happens. I mean a free market model, if we let the marijuana industry, if we allow for a big cannabis industry to develop, that's going to undermine everything we're trying to do with legalization. Because when you have a big industry behind something what they want to do is continue to sell their product. They want to increase the consumption of the product in society. So you need to regulate it now that we have the opportunity in this specific case in a way that doesn't set us up for failure down the line. And I think in marketing we have a lot of evidence of the impact that marketing has had on tobacco, use alcohol. We're getting to food now and how we regulate effectively in those spaces as part of the question. How do we do it in a way that we have the evidence so we don't need to think that we're creating a conflict between human rights obligations and those specific policy interventions. So I'll stop now. Thank you and I'm here if you have any questions for me. Thank you so much Oscar for the presentation and if I can just take a page out of Prime Minister Trudeau's book which is that Georgetown might be doing this work but Oscar is one of us. Oscar did his LLM at the University of Toronto with specialization in health law and was a member of our Canadian health law community for a very long time. Thank you. We're very proud of you. So please the floor is open. First of all, welcome and I really enjoyed your presentation and I'm really glad you mentioned you spent some time on the deep pockets theme because of course the deep pockets of industries like tobacco really do have an impact on vindicating and declaring the rights that you're talking about and I'm thinking of an Australian case where even before it ever got to courts the regulators settled around a dispute marketing of life so-called life cigarettes and one challenge they said if we had taken the industry on we would have blown our whole annual budget and won dispute and so that deep pockets problem if I could put it that way exists along the whole continuum I'm interested in hearing your view on what you think about the litigation or dispute resolution processes that you might have seen that are effective and in particular maybe the class action I happen to have a view about the capacity of the class action to deal with cases like this where you've got a litigator like the tobacco industry that takes a scorched earth take no prisoners approach to so I'd be interested in hearing your views on that that is a very good question thank you very much for that I think the big pocket it's an issue and that's what I've started at some point I mentioned they're already repeating a playbook so they have this strategy built on they know exactly what they're doing why they're challenging and I always use this your way as an example your way is a tiny country 3.5 million people living in Uruguay but it has been at the forefront of pushing for tobacco control regulation and now they're embarking on alcohol regulation they're the only country in the world that has legalized marijuana as a country as a national sort of nation so they're pushing for a lot of things so what happened in 2000 and I get there year year 9 or 10 they increased pictorial health warnings on the tobacco package so they went from 55 to 85 so it's larger it's a larger sort of image the argument is that it will have a better like a more strong impact the measure will be more impactful and they decided to allow only one brand per product because they said look we want to avoid we tried to we banned misleading advertisements so Lai, Lothar, all of that was banned but what the industry did is that they created colors, a color scheme so it was like Malboro yellow, Malboro green, Malboro white and then they had in every store there was kind of like a one page we just said okay Malboro yellow is what used to be Malboro light so they were trying to undermine government sort of the prohibition of misleading advertisements so the government said that's enough we're going to have only one presentation per brand so Malboro go and choose which one you want of course you're going to go with Malboro red could only have one presentation so the industry challenged that domestically of course and we were working with the Ministry of Health at that point with the lawyers that were responding to this and they won the case it was just oh we won we weren't even concerned why was this case not there were not that many good arguments from the industry it was truly but they won of course celebratory sometime after that that's when Philip Morris filed an investment case against Uruguay in front of the exit which is an international investment dispute resolution mechanism and of course at that point when I first heard that what came to mind is what all they were doing was exhausting domestic remedies so they could challenge this government policy at the international level if you look at the size of the Uruguay market it's 3.5 million people prevalence it's around 30, 25 percent smokers out of those smokers only 10 to 15 percent smoke Malboro the rest smoke the local or another local brand which is the more popular one so it's a market that is this I mean it's so tiny 3.5 million 30 percent and then 10 percent of that it's just it's small it does not significant so what the industry was trying to do was send a message to the world and definitely to Latin American to the world that whoever to try to implement this type of measures we needed to be careful because they were going to be sued I mean regulatory chill if you want to call it that the Uruguayan government of course it was the same reaction how do we litigate this case against this big corporation we're a small country I mean do we have the capacity to engage in this they were ready to enter into an agreement and withdraw the regular I mean that's where this went and then a group of people including other two people I was there and another colleague from the institute and other organizations from there we met with the government I mean we provided evidence look you have a strong case but the main challenge was the fees I mean who's going to pay for the lawyers who's going to pay if we lose so at the end international foundations decided to support the government of Uruguay in responding to this lawsuit and the case is pending should be decided within the next six months so by default we will know whether when Uruguay decided to eliminate or to restrict how many presentations each brand could have whether that had an impact on the investment the Philly Morris was trying to make in new ways that was the main argument we had this IP rights over all of these brands we had made all of this investment in this country now you're not letting us use them you're affecting our business so you think that's one of the challenges is that on our side on the side of public health law we're always trying to reinvent the wheel there's a new suit okay let's just see how do we do this new and they're not they're just following they have the same law firms all over the world so they have their strategy designed already so we need to be more creative on how we think of litigation in this space and there's a couple of very interesting initiatives going on right now of using strategic litigation but more on the offensive to try to affect interests corporate interests so there are a couple of cases in Argentina there's some cases big cases on healthcare recovery costs that were successful in the US the master's admin agreement but the other countries are exploring some of that so I think it's that's part of our thinking we had a project with a campaign for tobacco free kids in 2008 and that's what we were thinking how do we use legal avenues within litigation to more effectively kind of try to limit the impact that the corporations will have in this space I mean that's a longer term game we have we have thought of class actions we have thought more of a constitutional type of litigation there's some countries in which corporations are subjects of constitutional law in the sense that they have obligations so they could be challenged on their constitutional grounds and they're more big public interest litigation so you don't need to determine standing in some of the more technical things so there's a lot of thinking behind that but that's a big issue we'll see it with food we'll see it with other corporations it's going to be the same argument how do you assess an outright ban from regulations and how would you comment on the approach to tobacco versus marijuana particularly looking at the fact that some countries are increasingly legalizing true but we're not I would never argue for a ban on tobacco I'll think what we need to do is continue to strengthen regulation so we minimize the consumption of tobacco to a point in which is a marginal society like 5% 3% but never move to a full ban we can ban advertisement of the product which based on a project we're doing right now on marijuana building trying to design regulatory mechanisms for marijuana it could be a recommendation as well never allow for marijuana to be marketed so that piece we can do we can restore I mean there's evidence on marketing restrictions but we would never go to the point at least from our perspective of the institute my individual perspective here because this would be recorded I'm talking on my own personal capacity as director of the institute I don't think tobacco is going to be more effective that continue to strengthen those regulatory interventions so I think when we do that we're in line with human rights law because what we're doing we're allowing a product in the market it's harmful yes we're just providing information to the consumers we are making it hard for those products to be placed on vulnerable consumers children we are making it not accessible making it less accessible so people that really want to use a product and I think we can build some similar regulatory schemes for marijuana does that answer your question? just to some extent but if you're saying there is a human rights to health then why not ban it altogether unless you're saying ideally we would but it's not practical to do so so is it an expediency that you're regulating versus banning? I think the unintended consequence of banning is creates more problems for public health because it has been shown there's a lot of evidence that criminal law in the space of health doesn't achieve the goals that we're trying to achieve we have evidence in abortion we have evidence on in abortion it's a much more complex issue because there's not even justification for banning but we have or from a human rights perspective we have that evidence on prohibition of alcohol in the U.S. so it doesn't really it creates a black market that is completely unregulated kind of all the state can do is use its police power to criminalize there's a lot of data that shows that in the U.S. prosecutions for marijuana related offenses have increased and that hasn't had an impact on reduction of the price on increase of the price the price keeps dropping so it hasn't created what so I think it's practical but also that's how we inform what is fulfillment of human rights we really try to incorporate evidence into this assessment because under the right to health states need to do or in regulate ensure that people can leave healthier lives and regulate conditions society so people can be healthy but that needs to be informed by evidence so in this case I think a full ban won't be as effective for fulfilling the right to health as a very regulated system designing unregulated products and I was just wondering what do you see the role of evidence in the regulation of marijuana and how that would be different from tobacco because I just had a quick check on Health Canada's website and even they seem to have a really difficult time articulating the adverse effects of marijuana when compared to tobacco or alcohol except like in the case of youth and even though that's a pretty controversial topic in itself do you think that evidence in this case would actually be could be used by the people trying to market marijuana and saying like this is actually much safer than tobacco so you should bring it as less I mean I think the argument can be made the counter argument there is that you don't want to increase the consumption of this product that may have and already there's evidence that shows that depending on how you consume the product it has negative consequences on health I mean combustible marijuana there's some studies this is cigarette because it's a combustion effect the one that has I don't maybe the physicians here I have no I cannot read the complete argument but there's a study from UCSF that was published recently that made that specific connection so I think the allowing the product in the market and of course there's impaired driving while intoxicated with or while having been used marijuana may have so I think the regulatory system and what we think is just continue to reassess this is not something we do now and it ends we continue to reassess I know that in five, ten, twenty years we'll have more evidence of the impact that cigarette consumption has had on other things that we didn't know and then we need to see does this require a change in our regulatory approach should we be doing something in a space in which we are as the products are being used more in countries in kind of states we might be able to generate more evidence at a population level what's the impact of it right now we know what the impact of the product is on health because there's some studies that have tried to make that connection but at a population level there might be other effects that we might not know so how do we build that framework so we can correct I mean I don't have it in this presentation but I mean in the 40s physicians were advertising for cigarettes I mean Camel had this thing with a bunch of physicians say I smoke Camels I mean making that and evidence started evolving and then of course it became front upon for a physician to be advertising for cigarettes and then we continue to generate evidence so it's not unique in the sense of our understanding of other products I know for sure that I've instituted statutes which allow the provincial government to claim health care related costs for tobacco related wrongs against tobacco campaigns and I'm wondering as to what you think of the effectiveness of those kinds of lawsuits like none of them have been included yet in Canada the Ontario and the BC ones are currently underway but they haven't actually gone to court yet so I'm wondering what you think the effectiveness of those things like trying to regulate and making it undesirable to sell cigarettes in Canada especially given the cost of those types of litigation suits for the provincial governments because they are so expensive I think that there are two points here and I didn't mention that when I talked about marketing but the whole idea of restricted marketing and complimented that with informational campaigns of the part of the government is to change that social norm to really slow down right I remember being in planes in the 80s and people were smoking in planes I mean now that's unthinkable so we have made a lot of progress in changing that social norm that's what we try to with marketing information in this particular case this is health care recovery cost this is just the government trying to get back the cost that they spent on health care this by itself I don't necessarily think that is a product could be used in other ways but the other successful example of this is in the U.S. that big case that ended up with the master settlement agreement it was the same thing states suing for health recovery cost and it became this major sort of lawsuit but the use I mean what that case has been very useful is because as part of the agreement there are two components of the agreement but one of them is that we had access to industry documents internal industry document so a lot of the evidence that we have right now on how they're targeting children I mean they're not it was a very a strategy that was built from the industry so that was one of the positive aspects of that litigation we have evidence of like internal industry documents that read something like or instead of being we need to be a little bit concerned about certain countries the U.S. Canada implemented tobacco control measures but this is a great opportunity for us to explore other on tap markets in Latin America Asia and in Africa so this is part of so that was useful from the that was a kind of useful result of the of the agreement I think we need to continue to like find different points of pressure to minimize the impacts they have in society healthcare recovery costs may have a counter-term impact on really changing the economic dynamics of how the industry behaves so I think it could be in that space but not on the consumer in particular there's one there I follow mainly often pharmaceuticals and there was a case of a couple of days ago about one of the companies arguing that they had a free-speech right to promote freedom advertising offering more use of their drug do you think that would be useful? No I'm not but I'm familiar with the broader topic of direct to consumer advertising I was surprised because the United States is already a liar on consumer advertising of drugs and it seems like a real pretty strange to be pushing their right to promote drugs but often it's it's part of the same broader debate and this is not my area of focus or expertise but this is part of the broader debate of corporations speech and marketing to what extent it should be permitted the US is an outlier when it comes to freedom of expression and First Amendment and the expansive sort of understanding of freedom of expression there are a lot of countries that have limited direct to consumer advertising I thought that Canada was one of the countries that had regulation direct to consumer advertising but yesterday I was watching TV and I saw a bunch of advertisements for pharmaceutical products so I need to go back and look at what are the whether this is cable news maybe but then that's part of and it was one of the slides how do you really regulate when everyone else you can advertise you really need to come up with a system but that's a separate more technical advertisement I think it falls under the same principle it can be regular if there's evidence that shows that off label use it's going to have a detrimental impact because of information on the symmetry or all of the rational behind restricting direct to consumer advertising I think it could apply in the same way I don't think it's any different but I have to look at the facts yes question so it's always curious and kind of fun when you end up on the other side of the argument right so seems strange in so far as having a clear line between commercial and political speech and that's because in my human rights work I've argued the exact opposite and in particular we argued it around access to abortion services because criminal markets and abortion services are an effective form of advocacy when you want to try to move towards decriminalization in other jurisdictions so if anybody's interested we did a clinic project when I was at the University of Toronto fighting Google AdWords who had set restrictions on the advertising abortion services on Google and for whatever reasons it was criminal in some places I mean they actually didn't provide much of a rationale for it and we argued in many ways which you have restrictions on abortion being able to advertise safe and legal services in other places was both political speech as much as it was pushing a product and so I wondered you know is the line better drawn an intention you know whether or not you're trying to sell your product but of course we know that as healthcare goods are also market commodities you know sometimes the promotion of healthcare so I wondered I wondered how to develop a more principled understanding of this distinction between commercial and political speech and other pieces you know the women on waves one of the greatest political movements of access to medical abortion in Portugal was when someone held up the product on a TV and promoted the product rather than abortion the idea that the commercial speech was what allowed it to be saved in some way and it was an off-label use of an otherwise medication for gastric ulcers right and so to promote a gastric ulcer medication well what's the problem with that of course it also has this other use so yeah I wonder if you could comment on that I think I agree with with your argument we need to be much more commercial speech and I didn't want to get into all those technical details one of the challenges is that commercial speech it's mainly about placing the product in the market but also can have an information kind of component built into it right and we are I don't do it in the presentations but we sometimes are critical of some of these decisions that make this blank statement that commercial speech is not protected on the right but any information provided to the consumer in this context commercial speech is not a protected category I think your argument is even more kind of adds another layer of complication because we're talking about health products and products there's an obligation on the right to health about access to information in the health space built into the right to health so in that case I think we really are close with emergency contraception and to what extent you can force companies to really put language into the packages of emergency contraception saying like this medication does not induce an abortion because it's information about the product itself and in this case it could be framed around that commercial speech sort of argument so I see your point I think these products this are not but it's of the uniqueness of the product so I wish some of the scores would have spent more time developing that distinction it's not commercial speech as a whole it's commercial speech because of the facts around this particular product and how this makes our analysis different some of them do that but then they rush through kind of much more cohesive principle sort of assessment and I've mentioned to Joanna this before one of the advantages of us being in the health space across the board is that sometimes when you live in a specific health topic health issue you try to tweak all of the legal tools to be responsive to your health issue so when we work with tobacco control people we argue this is the most and they are okay with tweaking I mean this advocacy organization but sometimes even like scholars just work on that one area they can really try to adapt the legal reasoning to support the specific health issue we work across the board on health issues so when we or all of our tobacco control colleagues were celebrating this decision we thought it was a great decision to do issues of access to information in the context of contraception could that be could we have set this up for a potential conflict with other health issues we've talked about that in the health space across the board the use of criminal law in the in the health space I said that in this context of changing social behavior it hasn't been effective we have the same you favor specific criminal types so there needs to be kind of why is it different applied across different health topics so it's not that criminal law is always bad what is the rational to justify that in this context makes sense and how do we build that and that's that my area of work but I use it as another example I'm curious about moving away from specific health issues but around alcohol marketing and women's role in hyper sexuality images of alcohol marketing how is that type of speech protected or not and what are some of the counter arguments because we know that hyper sexualization of women is a key marketing tool in a lot of big alcohol advertising and some of the impacts from that and how some of the counter arguments we could propose around that I think that goes in line I would add this as another layer of arguments that should be used to support market restrictions so I think it's another layer so look not only has all these impacts but the way the product has been placed has had a negative impact on perception of women in society and it has had all of this other so I think it adds to the same line of reasoning but if we don't do it as a blanket sort of statement around the advertisement then I'm concerned about regulating speech if we allow advertising but then we want to restrict it when you advertise you shouldn't have it in thought if you want to leave advertisement of alcohol not banned let's say a country that wants to restrict it but not to a full ban how do you regulate the content I think there are ways but it's more complicated the way I would say is that we understand market restrictions need to happen in the context of alcohol and this is another layer of argumentation why they should happen because they're creating all of these other issues on women and does that answer your question? because there's an argument around well if we're not going to have an overall specific restrictions around alcohol advertising because we do have restrictions around like underage images in advertising and where some of these advertisements can be placed in magazines that are geared towards a younger population or in certain locations that are really close to schools or family centers et cetera so we've kind of already gone down that route a little bit you know specific framing of some policies and so that was kind of my curiosity I think that it's an interesting and maybe there's already some people that have looked at this from a legal perspective I think there's blanket things around spaces groups so you want to sue from the exposure what you're saying it could maybe it can be framed but my first thought was that that relates more to the content of the advertisement how do we build that what happens I mean with hate speech I mean there are ways in which you can get there but I haven't thought about the legal steps to do it so I've been trying to focus on the broader restriction on the advertisement of a prayer questions so please join me in thanking Oster for an exhibition thank you