The Globe and Mail published an article today by Jeff Pappone questioning whether or not the new Lotus Renault GP livery violates Canada’s Tobacco Act (the “Act”).  Read the article here and check out the new livery here.

Under the Act Section 22(1), advertising is restricted such that:

…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.

Further, the Act defines promotion in Section 18(1) as:

…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.

Pappone argues that the new livery likely violates the Act because “the black colour and gold pin-striping that formerly promoted the JPS brand and associate it with the glitz and glamour of F1 would contravene the legislation.”  I think an argument could be made that this is true, but I don’t think it’s a winner.

A black and gold paint scheme, on its own, would seem insufficient to violate the Act. If colors alone violate the Act then the Ferrari cars, as well as the old Forsythe racing cars from the CART/Champ Car days would also violate the Act.  I’m aware that Health Canada gave Forsythe some heat for his liveries in the period immediately following Players’ exit from racing, but while Forsythe changed the liveries slightly over the following years, he never strayed far from original Players blue and Health Canada never shut him down.  Part of the reason is that the Forsythe livery defined the team as much as it did the prior Players sponsorship. If I were representing Lotus Renault, I would vigorously argue that color alone simply is not enough to violate the Act, as the restriction on trade which it represents is quite substantial.

As for the new Lotus Renault livery, while the colors may be substantially similar to the JPS colors, the execution is but an homage to the prior cars and not evocative of the JPS cigarette brand.  Afterall, the present car has no JPS logos or other insignia connoting the JPS brand, and doesn’t use the same font for numbering or lettering as the JPS brand.  Further, the stripes of the current car are much thicker and oriented in a very different manner than the JPS pin-stripes of the prior car, which were said by some to be similar to the JPS cigarette packaging.  Finally, the new car has substantially different sponsors, which would make it apparent to all that the car is not sponsored by JPS.  These are but a few of the substantial differences between the two liveries.

Taken on the whole I do not see how Health Canada could successfully argue that the current paint scheme of Lotus Renault is an advertisement for a tobacco product and in violation of the Act.  The resemblance and correlation are just too remote.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney at Breeden Legal and is based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Corporate, Commercial and Banking Law. He represents Sports & Entertainment properties, as well as many other entrepreneurial businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Private Placements, Athlete/Driver Contracts, Insurance & Risk Management, Creditors Rights, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.