The Tests for Constitutionality

The only inquiry into restrictions on freedom of expression for public health interests within the Barbadian context is found in Weel.²¹ In Weel, the Barbados Court of Appeal was tasked with determining the constitutionality of a regulation that restricted dentists, like the appellant, from advertising in certain respects. Rule 14(2)(b) of the 1973 Dental Registration Rules provided that “any form of advertising, canvassing or promotion either directly or indirectly for the purpose of obtaining patients or promoting his own professional advantage” was actionable professional misconduct.²² In deciding whether rule 14(2)(b) was constitutional, that is, reasonably required in the interests of public health, the court relied heavily on the approach adopted in the Canadian case of Rocket v. Royal College of Dental Surgeons of Ontario ²³ and the Trinidadian case of Suratt v. Attorney General of Trinidad and Tobago, ²⁴ to articulate the aforementioned two-part test. First, whether the rule pursued a legitimate aim, and second, whether it was proportionate to that aim.

Correspondingly, the Jamaican Full Court in Bignall ²⁵ reaffirmed its adoption of the two-part test for constitutionality laid down by C.J. Dickson in R v. Oakes ²⁶ as the correct test for determining the constitutionality of derogations from Charter rights and freedoms.²⁷ First, the objective of the measure restricting the freedom must be “sufficiently important,”²⁸ addressing societal concerns that are “pressing and substantial.”²⁹ Second, the measure must be “reasonable and demonstrably justified in a free and democratic society.”³⁰ This second step, which can be considered a proportionality test, involves three components. First, the measure “must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective.”³¹ Second, the measure should “impair the right in question as little as possible.”³² Third, “there must be proportionality between the effects of the limiting measure and the objective –– the more severe the deleterious effects of a measure, the more important the objective must be.”³³ Dickson CJ, however, later modified the second criterion of the proportionality test, requiring that the measure impair the right “as least as is reasonably possible.”³⁴

“Legitimate Aim” or “Sufficiently Important” Objective

In Weel, the Barbados Court of Appeal, in determining whether rule 14(2)(b) pursued a legitimate aim, relied on the plain language of the rule as its starting point. The court concluded that there was a legitimate purpose, namely “to maintain a high standard of professionalism among dentists and to protect the public from irresponsible and misleading advertising,” and that such was connected to the interest it sought to protect, namely public health.³⁵ It is noteworthy that the Barbadian court considered the rule’s connection to the interest being protected to determine the legitimacy of the aim. Therefore, in determining whether a restriction pursues a legitimate aim, consideration should be given to both the plain language of the rule and its connection to that aim. In other words, clear objectives capable of passing the muster of this first limb, and the second one, as will be shown, are critical.

The Barbadian court, citing the Rocket case from Canada,³⁶ considered the difficulty of the “average consumer” to verify claims of competence across professionals. While this consideration relates to the legitimacy of the aim, it also refers to the importance of the measure — to protect consumers. Thus, the importance of the aim should be considered as a feature in determining its legitimacy.

Similarly, in analyzing the limits that may be imposed on freedom of expression in Bignall, J. Barnaby, also referenced a Canadian case — Irwin Toy v. AG,³⁷ which found a law prohibiting commercial advertising directed at persons under thirteen years old to be constitutional. In Irwin, the court reasoned that protecting children from advertising was pressing, substantial and important since commercial advertising can have persuasive effects on children. The Irwin court opined that protecting children from manipulation was a substantially important goal. More recent analysis of the extent and impact of children’s vulnerability and exposure to marketing generally further justify marketing restrictions in the interests of public health.³⁸

Within the diet-related NCD context, marketing restrictions aimed at reducing “both the exposure of children to, and power of, marketing of”³⁹ unhealthy foods and beverage products would also satisfy the first limb of the test for constitutionality. As C.J. Dickson correctly noted in Irwin, children are especially vulnerable to advertising. This vulnerability subjects them to the powerful and pervasive content directed at influencing their diets, often negatively. It is difficult for children to sort and sift through commercial expression around legal but harmful products, such as unhealthy food and beverage products. Indeed, courts would benefit from recognizing conflict-free evidence about the rates of obesity and overweight among Caribbean children, the effectiveness of marketing to children, and how regulating products through advertising restrictions can mitigate the risk of children developing NCDs.⁴⁰

Further, the aim of such marketing restrictions would support the legally binding obligation of states, such as Barbados and Jamaica, to protect children’s rights against interference by third parties.⁴¹ Importantly, the fact that such a public health measure is most effective as part of a comprehensive package of other measures also reinforces the legitimacy of appropriately crafted objectives and each measure’s rational connection to overarching public health interests. Hence, the sufficiently important aim of NCD prevention among children, the legitimacy of that aim and its rational connection to public health interests, should arguably be difficult to deny.

With respect to tobacco control, it is perhaps undisputable that tobacco control regulations that restrict tobacco advertising would satisfy the first limb of the test for constitutionality. In fact, several Caribbean states have already started to implement comprehensive bans on tobacco advertising, promotion and sponsorship.⁴² Certainly, preventing individuals, including children, from death, disability, impoverishment, and the ill-health associated with the use of and exposure to tobacco is a legitimate aim and a sufficiently important objective. Public health measures to regulate the NCD risk factors of tobacco and unhealthy diets are capable of passing this first limb.

Proportionality

The second limb of the tests in Barbados and Jamaica can be referred to as the proportionality test. At this stage of the inquiry, courts often assess whether a measure goes beyond what is necessary to achieve its objective.

In Weel, in applying the proportionality test, the Barbados Court of Appeal considered whether rule 14(2)(b) was reasonably required in the interest of public health. It again considered the language of rule 14(2)(b) and stated “[o]n its plain words, appropriate advertising is permissible under this rule. Its ambit of the prohibition on advertising extends only to advertising ‘for the purpose of obtaining patients or promoting his own professional advantage.’”⁴³ The specific restriction identified within rule 14(2)(b) was perceived as being “limited and narrowly drawn” and striking a fair balance between an individual’s right and society’s interest in obtaining information about dentists.⁴⁴ Rule 14(2)(b) was therefore proportionate to the objectives. The Jamaican Full Court took a similar approach in Bignall,⁴⁵ albeit centering its analysis of the proportionality test on the latitude that the legislature has to select the most appropriate measure to meet its policy objective.

The significance of clear objectives is also pertinent to this limb of the test. It is upon the objective that the public health measure will be assessed to determine its necessity and proportionality. It is perhaps trite that blanket bans are generally considered to be disproportionate to achieve legislative aims. However, within the NCD context in the Caribbean, the other extreme –– zero restrictions, should also be recognized as having a disproportionate burden on public health as well as economic wealth and social wellbeing, notably of these low-and middle-income countries, and subpopulations within them, such as children and persons living in poverty.⁴⁶ Further, the absence of any restrictions on commercial operators and arguably, the adoption of ineffective measures, may also conflict with the aforementioned human rights obligations of these Caribbean states.

What then is the balance to be struck between the right to freedom of commercial expression and public health interests in Barbados and Jamaica? A fair balance between these competing interests will not necessarily be some midway point, if that can even be identified. Instead, given the specific objective of the public health measure, such as the earlier marketing restrictions aimed at reducing the exposure to and power of marketing of unhealthy beverages and food products to children, a fair balance may arguably be struck at different points depending on the exposure and power of marketing within specific environments,Reference Parmet and Smith⁴⁷ as well as any applicable considerations for decision-making, such as the best interests of the child.Reference Garde, Byrne, Garde, Curtis and De Schutter⁴⁸ For instance, with respect to school environments, the balancing of competing interests, such as commercial operators’ free speech versus children’s health and other rights, must take the best interests of the child as a primary consideration.⁴⁹ The least restrictive means, and the fair balance to be struck, may see more protective measures against the corporate “vectors of disease” preying on children in school settings compared to strictly adult environments.Reference Mialon⁵⁰

The reality is that the mostly unregulated exercise of freedom of commercial expression in Barbados and Jamaica means that unhealthy food and beverage product marketing is pervasive. Consequently, the means used to limit said unregulated freedoms in the interest of public health, may, even in their least restrictive manner, nonetheless appear broad. Here, due consideration must also be given to whether the Irwin ⁵¹ framework would equally apply to comprehensive advertising bans, that is, bans on all advertisements relating to unhealthy food and beverage products. While adults may not be as vulnerable as children from a biological or psychological perspective, unregulated environments increase everyone’s vulnerability. Parents’ responsibility for children and children’s pester power over parents strongly suggest that their vulnerabilities are not mutually exclusive and both need to be protected. Whilst such an argument may appear paternalistic, the reality is that in both Barbados and Jamaica, Consumer Protection legislation⁵² already aims to protect all consumers from deceptive and misleading advertising. Going beyond, to protect consumers from commercial speech which may not be captured within the “deceptive and misleading” parameters, but which is nonetheless harmful to health, is not only permissible but necessary and proportionate to the objectives in focus. The objective of addressing the exposure and power of pervasive marketing can only be effectively achieved with comprehensive marketing restrictions.

With respect to tobacco control measures, the aim of reducing exposure to advertising associated with tobacco products would also be afforded constitutional safe harbour by satisfying the second limb of the test of constitutionality. For instance, it is almost trite that tobacco advertising, promotion, and sponsorship bans are rationally connected to the objective of reducing tobacco consumption, and not so severe as to outweigh the objective of reducing tobacco consumption.

There is also value in appreciating that the prohibition in Irwin ⁵³ was not the least restrictive, a distinguishing feature from Weel, in which the court was detained with this exercise. The Irwin court considered that it would not “in the name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups.”⁵⁴ This is a powerful statement, underscoring the latitude the Jamaican legislature has, to implement the most effective public health measure, and the Jamaican courts to uphold such as constitutional.

Ultimately in Weel, the Barbados Court of Appeal highlighted the “public interest in obtaining relevant and appropriate information about dentists”⁵⁵ and found the advertisement to be “one of naked commercialism aimed at attracting patients ostensibly by providing less expensive services than that provided by other dentists.”⁵⁶ In finding Weel’s advertisement to be “misleading and disparaging of the services provided by other dentists,” the court rejected any contemplation of constitutional protection as commercial or professional speech.⁵⁷ Adopting this approach, it is submitted that commercial speech that fails to disclose known harms should also be considered misleading and deceptive.Reference Gostin and Javitt⁵⁸