TOBACCO
Is the country's move to do it slow as a snail?
Clusters of yuppies along sidewalks are a usual sight during lunch breaks in this commercial district in mega Manila. They puff on cigarettes between office tales. On a daily basis, this particular group of cigarette smokers stations itself near an escalator that leads to an underground walkway. Its members do their smoking session in an open space, as if they did not affect the pedestrians walking by.
A similar sight exists right at the stair entrance of a 30-story building in another commercial location. They look like guests to a cocktail party, only there is neither food nor drinks, but cigarettes. This time, the smell of smoke fills the partially enclosed space. Nonsmoking passersby frown and cover their noses, as it takes only a few seconds of exposure for the smell of smoke to cling to their clothes and hair.
At a restaurant in the same building, there is a smoking area, but the smell--even the smoke--reaches the nonsmoking area anyway. The accordion-type divider does not completely seal off the smoking section.
The World Health Organization reports that tobacco kills almost five million people each year. If current trends continue, it is projected to kill 10 million people a year by 2020, with 70 percent of those deaths occurring in developing countries. Tobacco also takes an enormous toll on health-care costs, lost productivity, and the intangible costs of the pain and suffering inflicted upon smokers, passive smokers, and their families.
Tobacco law
The ban on smoking in public places is one of the more noticeable consequences of the implementation of a local law resulting from the enactment of Republic Act 9211 or the Tobacco Regulation Act (TRA) of 2003. It aims to regulate the packaging, use, sale, distribution, and advertising of tobacco products. However, the ban is just one of the many considerations in tobacco-control efforts worldwide.
The TRA became law on June 23, 2003, a month after the first international health treaty, the Framework Convention on Tobacco Control (FCTC), had been adopted by the 192 member-states of the United Nations.
Negotiated under the auspices of the WHO, the FCTC was the first legal instrument designed to reduce tobacco-related diseases and deaths around the world. The key was for countries to ratify the Convention as quickly as possible.
The Philippines adopted the FCTC on September 23, 2003, and ratified it through Senate Resolution 195 on June 6 this year, making the country party to the FCTC. Official transmission of the instrument of ratification to the United Nations is now pending.
The treaty requires parties to impose restrictions on tobacco advertising, sponsorship, and promotion; establish rules on how to pack and label tobacco products; establish clean indoor-air controls; and strengthen legislation to clamp down on tobacco smuggling.
The FCTC restrictions are to be imposed through an enabling law on the country level. The TRA should function as the Philippines' versiion of that enabling law, the only one so far that regulates activities that revolve around tobacco.
The Framework Convention on Tobacco Control Alliance Philippines or FCAP, a member of the Framework Convention Alliance (CFA), a global network for tobacco control, states that the FCTC in itself has many merits in its various policies. In addition, FCAP says that as a party to the treaty, the Philippines will join the Conference of the Parties (COP), and will be able to decide on governing or procedural issues. The treaty also establishes that the COP shall devise funding and aid mechanisms for those parties that are less developed and more needy, making the Philippines a possible candidate for these mechanisms of help.
TRA vis-à-vis FCTC
Local antitobacco advocates doubt if the TRA indeed has teeth, or if the government can fully enforce the law without delay.
Dr. Carmelita Canila, president of Bilin ng Mamamayang Konsyumer or BILMAKO, and one of the resource persons at the Senate foreign-relations committee hearing on the ratification of the FCTC, says that one reason for the delay lies in harmonizing the country's laws with the treaty provisions.
In her paper, "Strengthening the Local Tobacco Control Law," Canila wrote: "The country is in a situation where it has just passed a law, the TRA, that substantially lacks many provisions [embodied] in the FCTC, and there is fear that many institutions think we already have an enabling law in the form of the TRA."
Dr. Jessica de Leon of the Department of Health's National Center for Health Promotion, which was one of the participants in the Interagency Committee (IAC) that drafted the TRA provisions, believes otherwise. "The TRA complies with the minimum requirements of the FCTC," she stresses.
Canila says that this situation is creating debates and worries among consumers and social-development advocates because the TRA definitely does not address the many social issues related to tobacco use and the industry. Her policy report indicated a number of FCTC provisions lacking in the local TRA. "The analysis of trying to understand the TRA in relation to the FCTC is being hoped to help clear out which way to go after the FCTC has been ratified while the country prepares for its full implementation," Canila explains.
For one, Canila says, the matter on taxation is not provided for in the TRA, an issue BILMAKO believes has a direct impact on curbing its sale due to the resultant prohibitive pricing.
De Leon, on the other hand, says that except for the provision on excise tax, which she says is taken care of by a separate legislation, "the TRA possesses the 'minimum requirements.'"
The lack and limitations
Canila points out a number of provisions lacking in the TRA vis-à-vis the FCTC: price-tax measures, public disclosure of toxic contents, illicit trade in tobacco products, and environmental protection, as well as protection of people's health in relation to tobacco cultivation.
Canila adds that even the provisions considered as strengths of the TRA are watered-down versions of the FCTC. For instance, she explains: "On packaging and labeling, the TRA has no provision on false, misleading, and deceptive terms such as low tar, light, ultra light, mild, etc." Even on tobacco advertising, promotion, and sponsorship, the TRA does not include prohibition of use of these terms, she says.
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The WHO monograph Advancing Knowledge on Regulating Tobacco Products reports that the use of "light" or "mild" on the labels of certain brands of cigarettes poses a problem. According to the monograph, "scientists have recommended the banning [of the use] of such labels because they give consumers the false impression of reduced health risks resulting from lower tar or nicotine measurements derived from US Federal trade Commission (FTC)-International Organization for Standardization (ISO) tests. Real-life smokers of low and ultra-low-tar and -nicotine cigarettes alter their smoking patterns to compensate for the low levels, resulting in actual tar exposure that is the same as for so-called 'full-strength' cigarettes."
Canila adds that the "TRA could have prepared the Philippines toward a complete ban in tobacco advertising and sponsorships." But prior to banning ads and sponsorships, she says, "the restriction phase is very much tied up with the provision on age limits." Canila explains that this situation encourages minors to take up smoking, and worse, it legitimates the tobacco industry's promotional activities, such as one whose ad says "Open only to smokers 18 years old and above."
The FCA says that despite industry denials, the overwhelming majority of independent, peer-reviewed studies show that tobacco advertising leads to an increase in consumption. Further, it says, "Studies have shown that tobacco promotional activities are causally related to the onset of smoking in adolescents and that exposure to cigarette advertising is predictive of smoking among adolescents."
The Implementing Rules and Regulations of the TRA state that beginning January 2007, all tobacco advertising on free television, cable television, and radio shall be prohibited. By January 2008, all forms of tobacco advertising in mass media shall be prohibited. Regarding promotional activities, however, the TRA only contains restrictions prior to a complete ban that spans a year.
Including the industry
The most highly contentious provision in the TRA, Canila says, is the inclusion of the tobacco industry in the IAC that will implement and monitor the TRA. This, she says, leads some quarters to question the integrity of the law, the IAC itself, and the individual members comprising the committee.
The tobacco industry is represented in the nine-member IAC, which has the exclusive power and function to administer and implement the TRA, as provided for in Section 29 of the TRA. The IAC is tasked to promulgate the IRR of the TRA (Section 37), with the Department of Trade and Industry acting as chair and housing the secretariat, and with the DOH as vice chair.
However, de Leon points out that the long years that it took the IAC to work on this law was enough to take up every little item that needed to be leveled off.
De Leon says: "We had no choice. That was intentional (involving the tobacco industry)…. We've been trying to do this for the past 20 years with the help of the committee and [putting together a law] was not working, until Senator [Juan] Flavier decided to put this under trade. I think it was partly to encourage [DTI] to do something about it … hopefully to reduce resistance among the senators who would likely sympathize with [the tobacco industry]."
De Leon further says that those who have reservations about the TRA's strength as a law "should have been in the negotiation to truly understand how it works. Enacting a law is a technical job."
"[The process] took a lot of energy…. The decision was to make the most of it," de Leon explains. In fact, she says, the year before the law was signed, the only thing that was deliberated on had been the phase-out period for farmers, whether to make it 10 or 20 years. She says that Flavier wanted a 20-year phase-out period, which bogged down the negotiation. "We might as well make the most of the situation
habang nandiyan pa si Flavier," she recounts.
"Even if some things are ideal, some things have to give," adds de Leon. "Otherwise, you cannot get what you need most." And she stresses that the situation was "not compromising."
Even then, she believes that "any health law should be 'skewed' in favor of health." The intention of the law is to protect the health of the people, she says. "There is no such thing as keeping a 'balance' because there is absolutely no benefit in smoking, absolutely nothing."
Canila says that if the country were to regulate tobacco products and implement tighter controls over the industry, the TRA needs to be strengthened or complemented. She proposes three ways by which the TRA can be strengthened. One is to work for an omnibus code where the different provisions do not have to go through the different committees in both houses of Congress. If the entire provisions of the FCTC were to be pushed, they would have to be deliberated on in approximately eight committees in the Lower House.
Another proposition, Canila says, is to work for an amendment of the TRA. But she says that working for an amendment is even more difficult than deliberating on a new one and the TRA has not been fully implemented. Last is to work for a new law to complement the TRA, she says.
De Leon, however, dismisses the possibility of an amendment. "Not in the future," she says. "It will open a Pandora's box, given that it was a long-drawn negotiation and we don't have the energy to renegotiate." For her, she says, the country can start at good implementation, and then put it a notch higher in the near future. "At least you have something; some don't even have a law," she adds.
"Which law does not have a loophole? Tell me," De Leon asks, finally.
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