Training Module Legal for LGUs Final - WPRO · health care and costs of productivity losses from...

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Training Module for Legal Issues on Tobacco Control: a component of the “WHO Training Course for LGU Decision-makers and Implementers” 1

Training Module for Legal Issues on Tobacco Control: a component of the “WHO Training Course for LGU Decision-makers and Implementers”

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Overview

Tobacco control

Goals

By the end of the session, participants will be able to:

• Distinguish the various types of policies relating to tobacco control that should be developed and implemented at the local government level;

• Identify strategic areas of enforcement; • Respond to frequently asked questions on

legal issues; • Discuss the key legal issues and how to

address legal issues during enforcement; and

• Evaluate and adopt the appropriate enforcement strategies.

Requirements

This module presumes that participants have been introduced to the tobacco control policies existing:

(paste list of discussed issues based on course or program here)

Methodology

Lecture/ Presentations

Workshop (Action planning)

Materials Presentations Template Ordinance Key Features of the Ordinance Workplan Format

Format

Interactive Lecture

Basic research on LGUs concerned must be done to make the topic relevant. Data on smoking prevalence, existing ordinances, and other pertinent data must be on hand.

Guided Discussion

The workshop must be conducted based on a guided discussion. A workplan format must be distributed to ensure that facilitators are guided and that the participants do not miss out on filling up important information.

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Part 1

Tobacco Control Issues

Tobacco control affects not only the health of the government’s constituency and workers; it also has an impact on the government’s economic performance and contributes to the key cornerstone of good governance, public ethics.

In tobacco control, the health issue is addressed not only through health service delivery programs such as smoking cessation or health promotion activities aimed at reducing the incidence and prevalence of non-communicable diseases; but equally, if not more importantly, through the regulation of the tobacco product, including its marketing, promotion, price, distribution, trade, and usage in a manner that exposes non-smokers to second hand smoke.

Economic Impact

A Metro Manila survey revealed that one in five cases of heart attacks can be attributed to exposure to tobacco smoke.i Long standing studies have established that exposure to secondhand smoke for more than 21 hours per week can increase one’s risk of a heart attack by as much as 62 percent.

Tobacco-related deaths and diseases happen during some of the most productive period of a person’s life and thus, adversely impact the economy through productivity losses (e.g., increased absences and reduced income as far as the employee is concerned; and reduced manpower and resource as far as the employer is concerned). In case of the indigent population, chronic diseases, mostly requiring extensive care and medication, take a toll on the government’s health budget through the use of public health facilities, providers, and medication.

In 2006, a study pegged the economic costs of 4 common smoking-related diseases (cerebro-vascular diseases, coronary artery diseases, chronic obstructive pulmonary diseases and lung cancer), including expenses for health care and costs of productivity losses from these diseases, range from PHP 218 billion to PHP 461 billion.ii This amounts to a per capita cost of PHP 2,319 to PHP 4,425.iii

(insert estimate of costs per person suffering from tobacco-related diseases, if available and relate to the participant’s City/ Municipality’s prevalence or rate of heart attack, stroke, etc admissions)

Tobacco-related harms put a strain on the national and local budgets. On the other hand, the burden on the household budget caused by tobacco leads to an unsatisfied constituency. At the national level, an iota of the economic burden (less than 1%)iv is recovered through excise taxes while at the local level, few local governments have maximized potential

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revenues that can be generated from tobacco control. This may include licensing fees, inspection fees, business permit charges, penalties for violations of tobacco control laws such as those collected by Makati, Manila, Davao; special allocation from excise taxes on tobacco products such as those received by tobacco producing provinces; and other forms of special taxes (such as taxes charged based on polluters pay principle, or charges to contribute to a special fund for enforcement).

Cost-effectiveness

Together, the whole gamut of tobacco control measures, contribute to reducing the number of premature deaths and potentially leads to government savings that can be allotted to other health concerns. The City of New York has illustrated how various tobacco control measures have effectively contributed to saving a number of lives in the city in a period of 5-10 years.

Like all tobacco control initiatives, the policymakers of NYC have also expended resources to fight the various common challenges that tobacco industry posed including legal challenges. And yet, NYC finds that the savings from preventing tobacco-related deaths far outweigh the expenses of developing and enforcing policies on tobacco control.

Source: Powerpoint presentation of Dr. Thomas Frieden, New York City (currently head of CDC), presented at Johns Hopkins University, Bloomberg School of Public Health, August 2008.

The NYC experience points out that increasing tobacco taxes proved to be the single most effective and cost-effective measure in reducing smoking prevalence in the city. In 2008, an increase of 1.25 USD of excise tax per pack of cigarettes led to a decline in total sales of 15.2%, and generated

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377.4 million USD,vin addition to savings from government funded health expenditures. It bears stressing that strong enforcement of policies on smoke-free public places has also resulted in net gains for the city. Tourism traffic has continued to increase and revenues from bars and restaurants have generally increased. Studies show that restaurant income generally increased with the removal of smoking areas because customers tend to order more food. Contrary to fears propagated by the tobacco industry, the hospitality industry did not die down and, in fact, continued to prosper. Experience in Makati and Davao cities reflected the same result. For instance, Makati City’s revenues from smoke free enforcement increased due to the imposition of inspection fees to ensure compliance with smoking area restrictions, and penalties collected from non-compliance. Although some restaurants have decided to close down in order to avoid compliance with smoking restrictions, many more have opened up in their place and the restaurant industry in Makati have registered a net growth.vi

Popularity

Not only has tobacco control proven to be cost-effective, it has also proven to be very popular among the constituency where it has been enforced as well as elsewhere in the country and in the world. Post-intervention surveys done after strong smoke-free campaigns in various parts of the world show that the population is generally happy with a smoke-free policy and a strong implementation of such a policy.

In the Philippines, a Metro Manila survey in 2009 showed that over 90% of Metro Manilans believe that there should be no smoking in public places and that children should not be exposed to second hand smoke.viiIn another survey done in Metro Manila sponsored by the World Lung Foundation and the DOH, a reported 52% Metro Manilans were exposed to secondhand smoke every day in workplaces, restaurants and other public places.The study further revealed that while most nonsmokers reported that they get upset when they are exposed to secondhand smoke, only 8% actually complained. viii The statistics reflect the non-confrontational nature of Filipinos, a circumstance which makes strong government enforcement of smoke-free policies necessary to promote the comfort and convenience of the constituents. To illustrate, when the legal requirement for a commercial establishment to put up a no smoking sign is well-enforced, a patron would be less likely to light up a cigarette and a waiter or a non-smoking patron will find it easier to point to the no smoking sign instead of arguing with the patron.

The popularity of the smoke free measure also applies to general acceptance of other areas of tobacco control. For instance, a 2007 survey by the PCCP showed that over 90% of the Filipinos believe that graphic warnings are better at conveying messages than text warnings. Surveys done in many parts of the world also show that majority of constituents generally approve of policies that increase excise taxes on cigarettes.

Leaders of smoke free cities are often lauded by the public health community for their immense leadership. In light of the persistence of the tobacco industry in promoting their interests, the ability to resist tobacco

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industry interference in the setting and implementation of tobacco control measures is a true reflection of strong political will.

Good Governance and Public Ethics

Good tobacco control policies are linked to good governance indicators particularly, transparency and accountability because of a specific provision in the WHO FCTC which, for the first time in treaty history, had singled out the tobacco industry as a threat to public health measures.

Internal documents of the tobacco industry that were released in the late 90s following a settlement of tobacco litigation in Minnesota revealed how tobacco transnationals have deliberately manipulated policy processes both in the national and international level to undermine tobacco control measures. Consequently, the WHO FCTC obliged governments to protect public health policies from commercial and vested interests of the tobacco industry. Governments are expected to comply with the FCTC provisions through both national and subnational (local) measures.

In elaborating this obligation, the Guidelines for the Implementation of Article 5.3 (5.3 Guidelines) recommends that governments should not receive any contribution, support, legal advice from or allow the perception of partnership with the tobacco industry and its representatives, whether directly or indirectly. Citing the International Code of Conduct for Public Officials, the guidelines further provided that public officials must act transparently in all its dealings with the tobacco industry, where such interaction is strictly necessary for regulation purposes. In addition, the government must require the tobacco industry to be transparent or to disclose information to support tobacco control measures.

Consistent with this obligation, on June 2010, the Civil Service Commission and the Department of Health implemented a Joint Memorandum Circular (JMC) in order to protect the bureaucracy from tobacco industry interference. The adoption of the JMC is consistent with the obligation under Article 5.3 of the FCTC.

The JMC recognizes that the tobacco industry is the single biggest obstacle to the effective implementation of public health measures. The industry sells a product that kills half of its consumers, and uses its power to promote its interests, at the expense of public health. It aims to protect the government employees and the public from the strategies of the tobacco industry. Tobacco industry interference refers to a broad array of tactics and strategies used by the tobacco industry to interfere with the setting and implementing of tobacco control measures.

Transparency and Accountability

More significantly, the JMC aims to promote transparency and accountability, which are basic governance values and in line with the core value of the CSC to promote integrity in public service. Through the JMC, the public can hold the government responsible to protect public health policies from the interference of the tobacco industry.

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The JMC covers all government officials and employees, including those working in local governments, under the jurisdiction of the CSC. It prohibits unnecessary interaction with the tobacco industry,ix the giving of preferential treatment to the tobacco industry, the acceptance of gifts, donations and sponsorship from the tobacco industry, having financial or material interest in any transaction involving the tobacco industry requiring the approval of their office. It further requires officials and employees to avoid conflicts of interest with the tobacco industry. According to the JMC, heads of agencies are required to inform the officials and employees about the policy against tobacco industry interference, amend their Codes of Conduct and incorporate the JMC rules.

The JMC issuance is a milestone for the Philippines which had been tagged by a scholar as “one of the slowest countries to take tobacco control seriously,”x in view of the weaknesses of the Tobacco Regulation Act including the presence of the tobacco industry in the IACT. The JMC sets the stage for exposing the tobacco companies for what they are in spite of their extensive CSR and PR work. It lays down an obvious fact ignored by many government beneficiaries of tobacco CSR that the tobacco companies’ primary interest is to profit from selling uniquely lethal products, and this creates an innate conflict of interest between their interest and any public health or welfare policies promoted by the government.

Corruption

Association with the tobacco industry has also been linked with corruption. In a research paper based on tobacco industry’s internal documents, Philip Morris memos were used to conclude that it had taken advantage of corruption in the Philippines and considers the Philippines as having an unrestricted operating environment for tobacco companies, ripe for corruption and exploitation. In other studies, the level of tobacco smuggling in the country has been linked with the level of corruption and a direct correlation had been observed. Scholars have also documented the complicity of the tobacco industry in major smuggling operations. In Europe, Philip Morris has agreed to pay 1.25 billion dollars as settlement to a legal court case accusing Philip Morris of encouraging and profiting from smuggling operations within the European Union.

It is in the context of conflict of interests, transparency, accountability and reputation for corruption that tobacco industry relationships can serve as an indicator of good governance. Considering how the tobacco companies systematically engage with policymakers to promote their interests, avoiding interactions with the tobacco industry, especially while in the process of tobacco control policy development and implementation, and making such interactions public and transparent when strictly necessary for regulation, can be a good test of integrity for public officials.

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Finally, developing codes of conduct for public officials in light of the JMC is a necessary step in raising awareness about the nefarious motives of the tobacco industry, particularly because there is relatively little appreciation of the conflict of interest principle in the country. In contrast, in countries with strong tobacco control policies, like Australia and Thailand, for instance, the tobacco companies have a reputation of being one of the least trustworthy.Hence, even before Article 5.3 Guidelines were adopted, there is effectively an unwritten code on avoiding interactions with the tobacco industry because their actions have been viewed with much suspicion by the general public.

Legal Challenge

As with the many cities that have enforced strong tobacco control measures, including those in the Philippines, the tobacco industry have consistently raised legal challenges to discourage these efforts. Some issues and measures are more contentious than others. More often than not, the same arguments are recycled in different jurisdictions even though the tobacco control measure and its legal basis has already been successfully upheld in another jurisdiction.

In most cases, the tobacco industry does not challenge local government issuances in court. In fact, the court cases that the tobacco industry has filed so far had involved the national government, particularly the DOH, not in an adversarial proceeding, but in a proceeding to seek interpretation from the courts.

Relevant Pending Cases

It bears stressing that existing cases involving the national government do not affect implementation of national or local tobacco control measures. For instance, the petition for declaratory relief on Section 22 of RA9211 (advertising ban) was not accompanied with a TRO, hence, the duty to enforce the law remains. The case is currently on appeal with the higher courts. Another example is the petition for declaratory relief on the Administrative Order 13-2010 of the DOH on graphic health warnings and misleading descriptors, a TRO on the AO has been issued in Marikina but there is no legal rationale why other jurisdictions should follow a regional court’s decision. Hence, unless a TRO has been secured from the higher courts, such as the Court of Appeals or the Supreme Court, other jurisdictions or local governments can still assist in facilitating the enforcement of the AO. There is no legal barrier for a local government to issue its own ordinance to require graphic warnings on cigarette packs sold in its jurisdiction.

With the sole exception of a case involving ambiguity in enforcement of smoke free ordinances in a known hotel in Davao circa early 2000, there are no reported court cases filed against a local government in relation to the issuance of ordinance or for a variety of enforcement efforts done by various LGUs including:

Policy Development

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a. Makati ordinance banning all indoor smoking (Developed in early 2000s prior to the scientific finding that there is no safe level of exposure to second hand smoke and the revelations on the harmful effects of indoor designated smoking rooms;xi the ordinance provides for strict regulation and limitations, including significant fees, on designated smoking areas);

b. Davao ordinance banning smoking in all public places that has so much as a roof;

c. Amlan province banning smoking in all indoor public places consistent with a 100% Smoke Free environment in accordance with FCTC Article 8 Guidelines;

d. LTFRB Memo requiring the placement of signages and imposition of duties on the franchise holder;

e. CSC Memo banning smoking in all government premises and buildings with strict requirements for designating one outdoor smoking area per building that is 10meters away from where people congregate;

f. CHED Memo requiring all concerned not to accept any offer of donation or partnership from the tobacco industry.

Policy Implementation

a. Mandaluyong enforcement team removing all outdoor umbrellas with tobacco company or brand advertising;

b. Manila enforcement team removing all signages and billboards of tobacco product advertising that are placed on top of sari-sari stores;

c. Manila enforcement team seizing cigarette packs within the 100-meter perimeter of schools, particularly around the University Belt;

d. Silang’s deputized enforcement team removing all signages and billboards of tobacco product advertising; and

e. Makati and Davao’s apprehension and fine of smokers for violating the no-smoking law. This is not to say that these tobacco control efforts have succeeded without interference from the tobacco industry. In most cases, the tobacco industry did not miss the opportunity to submit their position paper, or otherwise send their messages through various messengers including prominent legislators from Congress. In local governments where the political will of leaders is strong, policy makers and enforcement officials remain undaunted, and the tobacco control efforts have continued without further interference from the tobacco industry.

Part 2:

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Legal Authority under the Local Government Code

Duty and Power to Promote General Welfare

Each LGU has the duty to promote general welfare by exercising a broad scope of powers, not only those expressly granted but also those implied, necessary, appropriate, or incidental for its efficient and effective governance.xii

The scope of the general welfare to be promoted is equally broad and includes, as particularly relevant for tobacco control, among other things, the promotion of health and safety, improving public morals, and preserving the comfort and convenience of their inhabitants.xiii

By virtue of such provision, local government units have enacted ordinances against smoking. The city ordinances enacted are for the general welfare of the populace of a given local government unit, and it operates only within the limits of the local government unit concerned.

The power of the LGU to issue ordinances and other rules to promote public health in relation to tobacco control cannot be underestimated. Consistent with the principle of devolution, such provision of power is to be liberally construed in favor of the LGU. The existence of such powers, including implied or necessary powers, shall be interpreted in favor of the LGU concerned in case of doubt.xiv Particularly, the “general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community.”xv

Relationship with Constitutional Right to Health and Treaty Law

In the development of tobacco control measures pursuant to the general welfare clause, an LGU, as an instrumentality of the state is fulfilling the state’s duty to promote and protect the Constitutional right to health. The tobacco control policies issued by the LGU is critical in fulfilling the state’s obligation to the WHO FCTC.xvi Hence, LGUs must be mindful of the international standards and progress when setting and implementing policies related to tobacco control.

The Guidelines for the Implementation of the FCTC provide information on widely accepted scientific findings and best practices in tobacco control policy development and enforcement. For instance, Article 8 Guidelines brings a new perspective to designated smoking areas. In the past, designating indoor smoking areas have seemed sufficient. But after the Surgeon General’s Report revealed the link between second hand smoke and certain diseases / conditions including causing heart attack; the international public health community adopted the finding that there is “no safe level of exposure to second hand smoke” and this is embodied in the Article 8 Guidelines which promoted 100% Smoke Free indoors, essentially discouraging all forms of indoor smoking areas.

There are many evidence-based measures found in various Guidelines. Guidance from such issuance is intended to assist government in fulfilling FCTC obligations and can be as specific as recommendations to remove ashtrays and post no smoking signages or defining specific forms of advertising that should be banned.

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Details on how the LGUs can utilize these guidelines to develop model templates will be discussed later.

At the end of the lecture, a Model Ordinance Template will be distributedfollowed by a discussion of the key elements / features of tobacco control legislation based on the Guidelines.

Duty to Enforce All Laws

The mayors of cities and municipalities share a common duty, explicit in the Local Government Code, to enforce all laws and ordinances relative to the governance of the city/ municipality andxvii exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.xviiixix

In order to enforce national laws and local ordinances, the mayor shall develop and implement all approved policies, programs, projects, services and activities of the LGU and:

(i) Ensure that the acts of the city's component barangays and of its officials and employees are within the scope of their prescribed powers, duties and functions;

(ii) Call conventions, conferences, seminars, or meetings of any elective and appointive officials of the city, including provincial officials and national officials and employees stationed in or assigned to the city, at such time and place and on such subject as he may deem important for the promotion of the general welfare of the local government unit and its inhabitants;

(iii) Issue such executive orders for the faithful and appropriate enforcement and execution of laws and ordinances;…..

(v) Act as the deputized representative of the National Police Commission, formulate the peace and order plan of the city and upon its approval, implement the same; and as such exercise general and operational control and supervision over the local police forces in the city, in accordance with R.A. No. 6975;

(vi) Call upon the appropriate law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or sedition, or to apprehend violators of the law when public interest so requires and the city police forces are inadequate to cope with the situation or the violators;

5) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.( emphasis supplied)

Role in National Law Enforcement

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RA9211 prescribes certain duties and functions particularly to local officials, to wit, Section 2 Rule 2 of the IRR provides:

Section 2. Authority of city, municipal and police officials to initiate action. – To effectively implement the provisions of the Act and these Rules pertaining to the smoking ban, access restrictions, point-of-sale establishments, and cinema and outdoor advertising, the concerned city and municipal mayors and building officials and members of the Philippine National Police are authorized to take the necessary steps such as the institution of criminal proceedings against violators of the provisions of the Act, as well as to cause the removal of non-compliant cinema and outdoor advertising, and tobacco-related self-service facilities.

A more specific duty to enforce specific RA9211 provisions are enlisted in Section 1 Rule V of the IRR provides:

Rule V – Restrictions on Outdoor Advertising

Section 1. Restricted zone for outdoor advertisements. – Outdoor advertisements of tobacco products shall not be placed on billboards, wall murals, or transport stops or stations which are within one hundred (100) meters from any point of the perimeter of a school, public playground or other facility frequented particularly by persons below eighteen (18) years of age.

Section 2. Official to determine compliance to restricted zone. – The concerned city or municipal building official shall be responsible for determining whether outdoor advertisements comply with the preceding section. Any outdoor advertisement which was determined by the concerned city or municipal building official to be not in conformity with the requirement of the preceding section shall be disposed of in the manner provided in Section 3 of this Rule. Section 3. Disposition of outdoor advertisements within the restricted zone. – The disposition of all outdoor advertisements of tobacco products which were determined by the concerned city or municipal building official to be within the one hundred (100) meter radius of the perimeter of a school, public playground or other facility frequented particularly by persons below eighteen (18) years of age shall be governed by the following guidelines:

3.1. The removal of the non-compliant outdoor advertisement shall be done only after due notice by the concerned city or municipal building official to the owner or administrator of the building, other structure or land where said outdoor advertisement is located.

3.2. The owner or administrator of the building, other structure or land where the non-compliant outdoor advertisement is located shall be responsible for the removal or to cause the removal of said non-compliant outdoor advertising within three (3) days from receipt of notice from the concerned city or municipal building official. The final disposition of the outdoor advertising so removed shall be subject to the terms and conditions stipulated in the lease contract for the advertising space between the owner or administrator of the advertising space and the advertiser or the advertising agency, as the case may be.

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Section 4. Maximum size of outdoor advertisements. – Outdoor advertisements shall not, either individually or when placed in deliberate combination with other outdoor tobacco advertising, exceed seventy (70) square meters in total size.

Section 5. Official to Determine Compliance to Maximum Size. – The concerned city or municipal building official shall be responsible for determining whether outdoor advertisements comply with the preceding section. Any outdoor advertisement which was determined by the concerned city or municipal building official to be not in conformity with the requirement of the preceding section shall be disposed of in the same manner provided in Section 3 of this Rule

In no other part of RA 9211 did the law prescribe a more specific duty. As far as all the other provisions of RA9211 are concerned (Smoke Ban, Ad Ban, Health Warnings, Programs), the role of the local official is to take necessary steps to ensure compliance with the law. It is for this reasons that in some cases, LGUs have decided to form task forces to undertake enforcement of RA9211 with some level of specificity as to tasks such as inspection, issuance of warning letters, etc.

Several LCEs have issued Executive Orders in order to facilitate the mobilization of the task force. The City of Davao and Legazpi, for instance, have utilized the EO and task force formula to jumpstart their tobacco control drive.

Some cities have managed to utilize existing orders, resources and task forces to implement existing RA9211 and ordinances on tobacco control. To illustrate, in Pasig City which has a very strong environmental unit, it is the city’s environmental department which lead a strong smoke free campaign requiring all establishments and buildings to post smoke free signages and reminding all businesses to comply with RA9211 through the business permit and licensing unit.

A few cities have started monitoring compliance in commercial establishments with specific provisions such as selling within the 100-meter perimeter of the schools through inspections conducted by city officials or deputized civilian police.

Conflict between National and Local Laws

Should there be a seeming conflict between the provisions of a national law and a local ordinance, such “conflict” must be “convincingly and unambiguously demonstrated.” The two laws must be shown to be “clearly repugnant and patently inconsistent that they cannot co-exist.” xx An inconsistency that fails to meet this threshold requirement will not warrant that the ordinance is invalid, being in contravention of a national law. Take, for instance, the case of Designated Smoking Areas (DSAs). RA 9211, Sec.6 provides that DSAs shall be established in places where smoking is not absolutely prohibited (as provided in Sec.5 of the law). Such areas “may include a DSA within [a] building, which may be in an open space or separate area with proper ventilation, but shall not be located within the same room that has been designated as a non-smoking area.” The

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obligatory prestation RA 9211 creates is only insofar as the establishment of DSAs in areas where smoking is not absolutely prohibited. However, the law itself leaves open the choice as to where such DSAs may be established. As regards this choice, the language the law employs is permissive (i.e. “may”). Accordingly, a local ordinance which provides that DSAs should only be established in open spaces does not “conflict” with RA 9211, in as much as the national law itself permits local authorities to make the choice where DSAs may be established. Hence, there is no “repugnance” or “irreconcilable conflict” to speak of. The law and the local ordinance providing that DSAs may be established only in open spaces “may co-exist.” Notably, the factual milieu of jurisprudence cited by the tobacco industry in support of their argument that ordinances which so provide are invalid for being in contravention of national law are not in point. In all such cases, the ordinances invalidated by the Supreme Court on the ground of repugnance to national law were ordinances which allowed what the heart of the national law expressly disallowed – hence, an irreconcilable inconsistency. The same is not present here. Further, it is a basic rule in statutory construction that conflict must not be read into laws. In the face of an apparent conflict, it is dogmatic that laws must be reconciled and harmonized. At the very least, efforts to do so must first be exerted.xxi

Potential Resources for Enforcement

Under the Local Government Code, the LGU may impose reasonable charges or fees for services rendered. xxii This can be helpful for the implementation of provisions requiring monitoring of establishments such as smoke ban provisions and advertising bans. In Makati, an establishment wishing to put up a smoking area needs to submit an application for a permit with the city and pay a fee depending on the size of the smoking area. In order to sustain Makati enforcement unit’s efforts in monitoring compliance with the requirements of the permit, the fee is renewed annually.

Similar charges and mechanisms can be imposed to support enforcement initiatives of the city for monitoring advertising ban violations and compliance with smoke free policies such as the placing of prominent signages and removal of ashtrays.

The barangay has a specific power under the LGC to levy fees and charges relating to the billboards, signboards and other outdoor advertisements.xxiii Most LGUs in the Metro Manila charge a fee for any signage and billboard depending on the size and the length of time it will be installed.

Part 3

Frequently Asked Questions relating to 100% Smoke Free Policies:

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1. Why is the Philippines bound to comply with the WHO FCTC? The WHO FCTC obligates Parties to, among others, take effective steps in providing protection from exposure to tobacco smoke, comprehensively ban all forms of advertising and to protect the public health policies from the commercial and vested interests of the tobacco industry. These norms are binding on the Philippines, in as much as the FCTC forms part of the law of the land, pursuant to the Doctrine of Transformation under Article VII, Section 21 of the 1987 Constitution. A norm of international law arising from a Convention may be “transformed” into municipal (i.e. Philippine) law by the use of appropriate constitutional machinery, either through an Act of Congress or through an Act of Parliament.xxiv In the Philippines, the method by which conventional international law is transformed into municipal law is laid down in Article VII, Section 21 of the 1987 Constitution, which reads: “No treaty or international agreement shall be valid unless concurred in by at least two-thirds of all the Members of the Senate.” Once the Convention, as signed and ratified by the Executive, is concurred in by at least two-thirds of all the Members of the Senate, the Convention is “transformed” into municipal law. For all intents and purposes thereafter, the Convention shall be deemed as if it was legislated by our Legislature.

The Philippines signed the FCTC on 23 September 2003, through then Secretary of Health Manuel Dayrit. On 22 February 2005, the Senate of the Philippines registered its concurrence in the ratification of the FCTC, in accordance with Article VII, Section 21 of the 1987 Constitution. Following the Doctrine of Transformation, the FCTC now forms part of the law of the land. The FCTC thus creates binding, enforceable obligations with which the Philippines is duty-bound to comply following the principle of pactasuntcervanda– a state must comply with its obligations in good faith.

2. Is an ordinance that provides greater restrictions than RA 9211 – but compliant with other national laws – a valid ordinance?

Yes. An LGU may enact an ordinance compliant with the FCTC – but provides greater restrictions than RA 9211 - in the exercise of its power under the general welfare clause. In such capacity, an LGU may enact legislation that is more responsive to the LGU’s and its constituencies’ needs. Municipal corporations are created based on “the idea that the needs of the localities for which they are organized, 'by reason of the density of population, or other circumstances, are more extensive and urgent than those of the general public in the same particular”xxv

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Accordingly, LGUs can enact a local ordinance that is more restrictive than a national law because it seems such restriction to be of particular necessity in their respective locality than in the state at large.

In addition to the general welfare clause, the enactment of smoke-free legislation, providing greater restrictions on tobacco use and consumption finds express bases in law: (1) the FCTC, which forms part of the law of the law, as discussed above; and (2) Section 24 of the Clean Air Act, which specifically mandates LGUs to implement the prohibition against smoking inside a public building or an enclosed public place.

It bears stressing that the Clean Air Act cannot be declared as having been impliedly repealed by the RA 9211, a latter law, pursuant to the well-entrenched rule in statutory construction that implied repeals are frowned upon, and are allowed only in extreme instances where the repugnance and irreconcilable inconsistency between the 2 provisions in question are convincingly and unambiguously demonstrated.xxvi Absent such showing, the said provision of the Clean Air Act continues to be in full force and effect, and serve as basis for local smoke-free legislations by LGUs.

Other Commonly Used Legal Arguments by the Tobacco Industryxxvii

Policy Legal Arguments

Legal Principles

Ordinances prohibiting smoking in public places, or otherwise regulating where smoking areas may be established.

Smoke free legislation violates the rights of smokers to liberty, in as much as it prevents them from doing personal acts as they please.

There is no such thing as a “right to smoke.” The fundamental law certainly does not guarantee any such right. Further, in view of the unimpeachable science that tobacco use causes harm and that no amount of exposure to tobacco smoke is ever safe, the act of smoking is and should properly be made the subject of regulation. Being a slow form of suicide, there can be no recognition of such right to smoke, particularly in jurisdictions where suicide is penalized. In civil law jurisdictions, provision is also made disallowing acts that injures others, even when such acts are done in the exercise of a lawful right (i.e. torts and quasi-

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delicts). Thus, ordinances that seek to preclude the evils of smoking are valid, in as much as they are rationally related to a legitimate government objective of protecting public health. Such action falls within the plenary scope the state’s police power.

Smoke-free legislation violates the right to privacy of smokers, in as much as it unduly restricts the use of a smoker’s own property.

Not all fundamental laws reflect a right to privacy. In those that do, like in the US, no court has ever upheld a right to smoke as part of a right to privacy. This argument is premised on the notion that the owner has the right to determine what goes on inside his property. However, if the property is open to the public, then other public interests prevail over any possible right over the use of private property. In fact, even the private home is regulated in terms of building codes, plumbing codes and other safety regulations. Cars may also be considered private but not using seatbelts are punishable in many jurisdictions.

Such policy is oppressive to tobacco users. It victimizes and stigmatizes them for acts that are well within their rights, since tobacco use is not illegal.

The fact that a product is not illegal does not give rise to a “fundamental” right to consume it. Even if a product may be consumed, restrictions on potentially harmful but “legal” products, like pesticides, are reasonable and are, in fact, commonplace.

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Hotel and restaurant owners have claimed that smoke-free legislations diminishes the value of a business or a business license, and thus amounts to “taking” of property without due cause and without just compensation.

First, numerous studies have shown that even with a slight initial dip in earnings, most establishments recover economically despite, or perhaps even because of smoking bans. Second, a license grants no fundamental right but a mere privilege to do business. Thus, it may be revoked for failure to obey preconditions attached to its issuance.

Smoke free bans violate the equal protection clause.

Smokers do not constitute a class that qualifies for protection under this clause. To receive protection under the equal protection clause, courts have required an immutable characteristic determined solely by accident of birth. One is not born a smoker and one can stop smoking. Thus, smokers do not constitute a class that can be distinguished from other classes of people. On the contrary, an exemption which do not relate to the legitimate objective of protecting public health and serves only to weaken the issuance may, in fact, be struck down on the basis of equal protection.203 In any case, the right to life, which tobacco threatens, as shown by innumerable studies, trumps any purported

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right to privacy, to property and the operation of a business or even a purported right to equal protection and due process.

Local government units are bereft of authority to duly enact a smoke-free regulation within their respective territorial jurisdiction.

In the Philippines, LGUs are vested with an all-encompassing power to protect its constituents, as embodied in the general welfare clause of the Local Government Code. Thus, LGUs are empowered to enact restrictions to behavior in order to protect the general welfare of its citizens. Paramount among these rights are the right to health and life, enshrined in the 1987 Constitution.

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Part 4

The template ordinance is introduced and discussed.

Part 5

Workplan Discussion

The participants can be divided into small groups of around 4-7 people for a discussion on how they can agree to work towards tobacco control policy development and implementation. Reminding them of best practices discussed above can help stimulate discussions. Facilitators must be mindful that there may be many possibilities but the participants should be able to think about strategic measures that can deliver results at the soonest possible time, applying the low-hanging fruit principle.

More importantly, the participants should be able to work as a team to achieve the targets/ focus area.

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iBellew, B. et al, WLF-DOH survey, 2010 iiM.V.F. Leonen, D. Sy, I. Reyes, & J. Latuja, HealthJustice Philippines, Taxing Health Risks, 8

(2010), citing World Health Organization, Department of Health, University of the Philippines Manila & Philippine College of Medical Researchers Foundation, Inc., Tobacco and poverty in the Philippines (2006), figures adjusted to 2010 levels.

iiiFigure divided by 94 million - projected population of the Philippines in 2010, as per the National Statistics Office.

ivBased on author’s computation from information provided in Taxing Health Risks, supra note ii. v Tobacco Free Kids, Raising Cigarette Taxes Always Increases State Revenues (and Always Reduces

Smoking), 1, available at http://www.tobaccofreekids.org/ research/factsheets/pdf/0098.pdf, citing Orzechowski& Walker, Tax Burden on Tobacco, U.S. Alcohol and Tobacco Tax and Trade Bureau

vi According to City Health Officials and records of the City Health Office of Makati, as shared in various tobacco control meetings from 2008-2010, strong smoke free enforcement has generated net income for the city.

vii 2010 study conducted by DOH viiiBellew, B. et al, supra note i. ixIf interaction with the tobacco industry is strictly necessary for its effective regulation, transparency

must be observed and the interaction should be carried out in such a way to avoid the creation of any perception of real or potential partnership or cooperation.

xK. Alechnowicz& S. Chapman, The Philippine Tobacco Industry: The Strongest Tobacco Lobby in Asia, 13 TobControl 71, 2004.

xi Surgeon General’s report 2005 xii The General Welfare Clause of the Local Government Code states: “Every local government unit

shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare…”

xiii “Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.”

xivSEC. 5.Rules of Interpretation. - In the interpretation of the provisions of this Code, the following rules shall apply:

(a)Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned;

xv(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community;

xviArticle 7 Non-price measures to reduce the demand for tobacco The Parties recognize that comprehensive non-price measures are an effective and important means

of reducing tobacco consumption. Each Party shall adopt and implement effective legislative, executive, administrative or other measures necessary to implement its obligations pursuant to Articles 8 to 13 and shall cooperate, as appropriate, with each other directly or through competent international bodies with a view to their implementation. The Conference of the Parties shall propose appropriate guidelines for the implementation of the provisions of these Articles.

xviiEnforce all laws and ordinances relative to the governance of the municipality and the exercise of its corporate powers provided for under Section 22 of this Code, implement all approved policies, programs, projects, services and activities of the municipality and, in addition to the foregoing, shall:

Ensure that the acts of the municipality's component barangays and of its officials and employees are within the scope of their prescribed powers, functions, duties and responsibilities;

(ii) Call conventions, conferences, seminars or meetings of any elective and appointive officials of the municipality, including provincial officials and national officials and employees stationed in or assigned to the municipality at such time and place and on such subject as he may deem important for the

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promotion of the general welfare of the local government unit and its inhabitants;

(iii) Issue such executive orders as are necessary for the proper enforcement and execution of laws and ordinances;

(iv) Be entitled to carry the necessary firearm within his territorial jurisdiction; (v) Act as the deputized representative of the National Police Commission, formulate the peace and

order plan of the city and upon its approval, implement the same; and as such exercise general and operational control and supervision over the local police forces in the city, in accordance with R.A. No. 6975;

(vi) Call upon the appropriate law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or sedition, or to apprehend violators of the law when public interest so requires and the city police forces are inadequate to cope with the situation or the violators;

xviii Sec 2.5 Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.

xix City Mayor 2) Enforce all laws and ordinances relative to the governance of the city and in the exercise of the appropriate corporate powers provided for under Section 22 of this Code, implement all approved policies, programs, projects, services and activities of the city and, in addition to the foregoing, shall:

(i) Ensure that the acts of the city's component barangays and of its officials and employees are within the scope of their prescribed powers, duties and functions;

(ii) Call conventions, conferences, seminars, or meetings of any elective and appointive officials of the city, including provincial officials and national officials and employees stationed in or assigned to the city, at such time and place and on such subject as he may deem important for the promotion of the general welfare of the local government unit and its inhabitants;

(iii) Issue such executive orders for the faithful and appropriate enforcement and execution of laws and ordinances;

(iv) Be entitled to carry the necessary firearm within his territorial jurisdiction; (v) Act as the deputized representative of the National Police Commission, formulate the peace and

order plan of the city and upon its approval, implement the same; and as such exercise general and operational control and supervision over the local police forces in the city, in accordance with R.A. No. 6975; (vi) Call upon the appropriate law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or sedition, or to apprehend violators of the law when public interest so requires and the city police forces are inadequate to cope with the situation or the violators;

5) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.

xx Ty v. Trampe , G.R. No. 117577, December 5, 1995 xxi Secretary of Justice v. Lantion, G.R. No. 139465 xxii SEC. 153. Service Fees and Charges. - Local government units may impose and collect such

reasonable fees and charges for services rendered. xxiiid) Other Fees and Charges - The barangay may levy reasonable fees and charges: (1) On commercial breeding of fighting cocks, cockfights and cockpits; (2) On places of recreation which charge admission fees; and (3) On billboards, signboards, neon signs, and outdoor advertisements. xxiv Malcolm Shaw, International Law (5th ed, 2003), 128-129.

xxv In this regard, the Supreme Court, in US v. Joson stated:

Municipal corporations 'are bodies politic and corporate, vested with political and legislative powers for the local civil government and police regulations for the inhabitants of the particular districts included in the boundaries of the corporations'… They are founded, in part, upon the idea that the needs of the localities for which they are organized, 'by reason of the density of population, or other circumstances, are more extensive and urgent than those of the general public in the same particulars.

xxvi Ty v. Trampe , G.R. No. 117577, December 5, 1995 xxvii See generally, D. Sy& I. Luna, Southeast Asia Tobacco Control Alliance, Tobacco Control Lawyers’ Manual (2011).

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