CA lifts ban on tobacco firms’ promotional activities

MANILA, Philippines – On petition of the country’s giant tobacco companies, the Court of Appeals (CA) has nullified a resolution of the Department of Health prohibiting the tobacco industry from conducting promotional activities.

In a 21-page decision, Associate Justice Noel Tijam, of the CA’s Special Eleventh Division, agreed with Philip Morris Philippines Manufacturing Inc. and Fortune Tobacco Corp. that the DOH and the Bureau of Food and Drugs (Bfad) “committed grave abuse of discretion” in declaring that since July 1, 2008, all promotions, advertisements and sponsorships of tobacco products were already under Republic Act 9211, or the Tobacco Regulation Act of 2003.

The CA noted that while Section 22 of the law covering the ban on advertisements “prohibits all forms of tobacco advertisements in the mass media,” it exempts tobacco advertisements “placed inside the premises of point-of-sale establishments.”

The CA decision read in part: “The law being clear in distinguishing promotions from advertising and sponsorship, the public respondent DOH cannot hold a contrary view; much less exercise a carte blanche authority to deny petitioner’s promotional permit applications, as well as those by other tobacco companies. To begin with, it cannot modify supplant or even interpret its clear terms.

“Clearly then, the DOH should not have departed from the expressed provisions of the law. It being clear and unequivocal, it must have been given its literal application and applied without interpretation,” the CA ruled.

On the other hand, Section 23 of the tobacco law allows tobacco promotions with some restrictions such as it should be directed to persons at least 18 years old; all stalls, booths and other display concerning tobacco promotions must be limited to point-of-sale of adult-only facilities; telephone communications concerning promotional offers, programs or events must include a recorded health-warning message; and several other things.

The court also declared that the DOH has no authority to enforce the provisions of law, noting that Section 29 states that an Interagency Committee-Tobacco (IAC-Tobacco) shall have the “exclusive power and function to administer and implement the provisions” of the law.

The IAC-Tobacco is chaired by the secretary of trade, with the secretary of health as vice chairman.

The CA chided the health department for arrogating unto itself the authority vested on the IAC-Tobacco.

“The DOH also unlawfully provided absolute prohibitions on the advertising, promotions and sponsorships of tobacco activities without distinction and, thus, contrary to the tenets of the law. Indubitably, those acts translate to grave abuse of discretion amounting to lack or excess of jurisdiction necessitating the issuance of a writ of certiorari,” it said.

Records showed that on November 19 and 28, 2008, Philip Morris sought BFAD permission for two for sales promotions. The BFAD informed the tobacco firm of a DOH memorandum prohibiting tobacco companies, starting July 1, 2008, from holding any form of tobacco promotions in the country.

The PMPI appealed to the DOH to no avail, prompting the tobacco firm to elevate the case to the CA.

Fortune Tobacco joined the fray, saying it had a direct and immediate legal interest in the outcome of the petition.

The appellate court granted Fortune Tobacco’s motion to intervene.

The Court said that while it was not oblivious of the desire of the people to live a healthy life and in a healthy environment, it also recognized the contribution of the tobacco industry to the advancement of the country’s economy.

“Although the intention of the World Health Organization Framework Convention on Tobacco is to seek the gradual elimination of tobacco, public respondents DOH and the Bfad cannot speed up the process if, in so doing, they will deviate from or violate the express provisions of the law,” the CA added.

Concurring with the ruling were Associate Justices Marlene Gonzales-Sison and Jane Aurora Lantion.

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