CA extinguishes DOH ban on tobacco ads, promos

The Court of Appeals (CA) has nullified a Department of Health (DOH) resolution banning tobacco ads and promos pursuant to Republic Act No. 9211 or the Tobacco Regulation Act of 2003. The CA’s Special Eleventh Division, in a decision penned by Associate Justice Noel Tijam, granted the petition filed by Philip Morris Philippines Manufacturing Inc. and the intervention of Fortune Tobacco Corp. — both of which alleged that the DOH and the Bureau of Food and Drugs (BFAD) committed grave abuse of discretion in setting up absolute prohibitions on the advertising, promotions, and sponsorships of tobacco activities without distinction. “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," ruled the appellate court. Section 22 of RA 9211 explicitly banned all forms of tobacco ads in mass media, “except tobacco advertisements placed inside the premises of point-of-sale establishments." But Section 23 of RA 9211 allows tobacco promotions with some restrictions: such promos must 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 others. DOH arrogated authority The CA also ruled that the DOH has no authority to enforce of the provisions of RA 9211 because the Inter-Agency Committee on Tobacco (IAC-Tobacco) has the exclusive power and function to administer and implement the provisions of RA 9211. The appellate court held that the health department, by issuing its resolution banning tobacco promos, arrogated unto itself the authority vested to the IAC-Tobacco to administer and implement the provisions of the Tobacco Regulation Act. The IAC-Tobacco is chaired by the Trade secretary, with the Health secretary as vice chairperson. Tobacco industry’s contributions As for the health risks cigarettes pose to smokers, the CA said that while it is “not oblivious of the desire of the people to live a healthy life and in a healthy environment, it also recognizes 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 said. Concurring with the ruling were Associate Justices Marlene-Gonzales-Sison and Jane Aurora Lantion. Philip Morris Philippines Manufacturing Inc. initiated the suit at the CA after the BFAD denied the tobacco company’s application for a sales promotion permit for its “Gear Up Promotional Activity" and “Golden Stick Promotional Activity." Philip Morris was later told by BFAD officials of a DOH memorandum prohibiting tobacco companies from holding any form of tobacco promotion in the country. When Philip Morris appealed the BFAD’s denial of its permit application for promotional activities, the DOH denied Philip Morris’ appeal along with all similar actions filed by other tobacco companies. Fortune Tobacco also filed a motion for intervention in the case on the ground that it has a direct and immediate legal interest in the outcome of the petition, being engaged in a business similar to Philip Morris. In February last year, Fortune Tobacco and Philip Morris merged to form Philip Morris-Fortune Tobacco Corporation — the biggest tobacco company in the Philippines. — MRT/VS, GMA News