An overzealous doh

Health authorities and advocates are pushing for more regulation on the already overregulated tobacco industry in their campaign to stamp out cigarette smoking from the face of the earth.

The latest move in this direction is an administrative order issued by the Department of Health (DOH) imposing mandatory printing of graphic health warnings on cigarette packs and the banning of product descriptors.

But in their overzealousness in pushing their campaign, health authorities have apparently gone beyond what is required under the law. For the one, the graphic warnings are not mandatory, and for the smokers who have read the health warnings, the addition of pictures in cigarette packs won’t make any difference. Smokers know what they are getting into. Ask any smoker if pictures on the cigarette pack will make him stop smoking, and more likely, the answer will be no.

This overzealousness has prompted the Philippine Tobacco Institute (PTI), whose members include the cigarette manufacturers in the country, to express its concern that the DOH is taking steps that would go beyond what is stated in the Constitution and the provisions of the Tobacco Regulation Act of 2003 (TRA).

In a letter to Health Secretary Esperanza Cabral dated May 21, 2010, PTI through its president Rodolfo Salanga voiced its objection to the new administrative order, even as it pointed out that while the warnings required to be printed on cigarette packs are enumerated and mandated under Section 13 of the TRA, Section 13(g) further provides that “no other printed warnings, except the printed warning and the message required… shall be placed on cigarette packages.” Nowhere does it mention about graphic warnings.

It would now appear that the administrative order issued by the DOH purports to impose graphic health warnings under the guise of complying with the provisions of Article 11 of the Framework Convention on Tobacco Control (FCTC), said the PTI. But the PTI warned that the FCTC itself is not self-executing.  So the administrative order on graphic health warnings has no leg to stand on. What is needed — and what is lacking at this point — is a national legislation passed by Congress to implement the provisions of FCTC, including Article 11 on graphic health warnings and product descriptor bans. The DOH, warned the PTI, is usurping congressional power with the issuance of its new administrative order.

Not only that. The relevant portion of Article 11 of the FCTC, on which the DOH administrative order is based says that health warning “may be in the form of or include pictures or pictograms.” This means the graphic warning that the DOH now is imposing is not even mandatory. It is only directory.

In short, the administrative order cannot be considered an implementing regulation of the Tobacco Regulation Act (TRA), which says that the only printed warning needed to be placed on cigarette packs are those health warnings and message required under its Section 13. So the administrative order “unconstitutionally confers an additional obligation which is not required under the TRA.”

The PTI said FCTC cannot be implemented by the DOH through a mere administrative issuance. Even if it is the principal health agency in the country, it cannot implement FCTC through its rule-making power or subordinate legislation unless Congress itself has passed a valid law which the DOH, an administrative agency, would be mandated to implement. But the fact is, there is no valid law that DOH seeks to implement.

PTI explained that the FCTC, which the DOH claims it is implementing in issuing the administrative order, is actually not a national law which can be enforced in the Philippines. Stated differently, while the concurrence of the Senate did make the FCTC a binding obligation in international law, it did not thereby transform the FCTC into a binding national law because its provisions are not self-executing. It requires legislative implementation to make its provisions operative.

What does this mean? It means that DOH has no legal authority to be issuing orders to require the use of graphic health warnings on cigarettes, or prohibit the use of descriptors. It shows the weakness in the DOH stance regarding its new imposition on the tobacco industry, which employs hundreds of thousands of Filipinos, pays the government billions of pesos in taxes, and props up the economy of certain regions in the country.

What we are saying is that the latest imposition of the DOH through its administrative order would be tantamount to an issuance of a law, which is beyond the power of the DOH. Only Congress can do that.

Also, the Framework Convention on Tobacco Control is not self-executing and, without a law passed by Congress, it does not grant the DOH the power to issue rules and regulations to carry out its provision, which the DOH is now trying to do through its new administrative order.

We are not saying that smoking is good. All we are saying is that this new requirement will just impose an additional financial burden on an industry that is, whether we like or not, conducting a legitimate business and is employing a lot of Filipinos. And of course, there is the law, which the DOH, has to follow.

So before the DOH gets entangled in legal problems, it would do well for the department to back off from its new imposition related to cigarette warnings. Unless the law is amended, it stands. The means does not justify the end. The health secretary might have good intentions, but not at the expense of violating the law.

 For comments, e-mail at [email protected]