Reports of seizures after e-cigarette use – US FDA
April 24, 2019Vote Wisely, Choose Pro-health Candidates
May 9, 2019
By Bernadette Huggins
Globally, approximately 6 million people die each year from tobacco-related illnesses, and if current trends continue, this number is expected to increase to more than 8 million a year by 2030 1 .
In the Philippines, at least eighty seven thousand six hundred (87,600) Filipinos die every year from tobacco-related diseases, or approximately two hundred forty (240) deaths every day or an estimate of 10 Filipinos die every hour. 2 Hardly surprising in a country with an estimated 17.3 million tobacco consumers, the highest number in South-East Asia. 3
Global tobacco epidemic is also an economic burden, social justice and human development issues. Researchers estimate that a total economic loss of about US$ 12.7 trillion over the next 20 years – or 1.3% of GDP annually – could be attributed to tobacco. 4
Tobacco control measures passed by governments around the world through legislations and other issuances aim not only to expose the dangers of smoking but to reduce smoking initiation among children and the youth, and help those who smoke to quit.
The Philippines, is among the nations who is a signatory to the World Health Organization, Framework Convention on Tobacco Control (FCTC), which sets out these tobacco control measures. 5
Effective measures, set out in the Framework Convention on Tobacco Control (FCTC), 6 include restrictions on advertising, promotions and sponsorships, specific requirements to provide information, such as pictorial health warnings, and measures to increase taxes on the products, among others.
Article 5.2 (b) of the FCTC obligates the Parties to adopt and implement effective legislative, executive, administrative and/or other measures and cooperate, as appropriate, with other Parties in developing appropriate policies for preventing and reducing tobacco consumption, nicotine addiction and exposure to tobacco smoke.
The Philippines still have far to go to implement these policies.
On 12 May, 2010, the government through Administrative Order (AO) No. 2010-0013 7 sought to implement Article 11 of the Treaty, though way passed the deadline for the compliance set on 4 September 2008. Article 11 requires tobacco companies to place pictorial warnings instead of mere textual warnings stating the health effects of the products. The AO also sought to ban misleading descriptors such as “mild” and “ultralight”, which create the misimpression that a tobacco product is less hazardous to health. Section 4 allowed tobacco companies a period of 90 days from the effectivity on June 9, 2010 to comply with the Order.
Threatened with the Administrative Order, five major tobacco companies Fortune Tobacco, Mighty Corp., Philip Morris Fortune Tobacco Company (PMFTC), Japan Tobacco International (JTI), and Telengtan Brothers & Sons filed separate law suits challenging the AO. The cases were filed in their principal place of businesses and the five sought the legal remedy of injunction to delay the implementation of the AO. The courts sided with the tobacco companies.
Losing these cases weighed heavily on the government as the Department of Health was restrained to implement its own Administrative Order, which was also invalidated by the courts. But what went wrong? Looking back, the author who handled two of the cases for the government and assisted in the defense of the other cases, 8 attributes the government’s lost to these factors:
The Department of Health was defended by its principal law office, the Office of the Solicitor General. In contrast to the overworked and underpaid State Solicitors whose average case load is 3000 cases, the five tobacco companies were represented by big law firms whose lawyers have more time and resources to devote themselves to the trial of the cases. Against a well- financed and vastly influential law firms, the OSG struggles to prepare defenses for the government. Tobacco control advocates, such as HealthJustice Philippines, were a big help to the government lawyers.
The litigation of the cases was extremely complex as it introduced for the first time the applicability of the FCTC in the domestic laws of the land, which judges struggled to understand. Republic Act No. 9211 (RA 9211) or the Tobacco Regulation Act was enacted on 23 June 2003, or two (2) years before the FCTC came into force. Since the FCTC is a later law than RA 9211, applying the principle of “lex posterior derogat priori,” in statutory construction, (the later law prevails over the previous one) the provisions of the FCTC should have prevailed over the conflicting provisions of Section 13 (g) of RA 9211.
Section 13 (g) of RA 9211 provides that “[n]o other printed warnings, except the health warning and the message required in this Section, paragraph F shall be placed on cigarette packages”. In contrast, under Article 11 of the FCTC, warnings and messages on cigarette packets “may be in the form of or include pictures or pictograms”. The tobacco companies insisted that the FCTC, though a valid domestic law could only be implemented through a national law in our jurisdiction, contrary to Article 5.2 (b) and the doctrine of statutory construction.
The fact that the cases were filed where they held businesses also worked in favor of the tobacco companies. From the beginning, they had the “home court advantage”. As a matter of fact, in one case filed by Mighty Corporation, 9 which eventually led to a Consolidated Petition before the Supreme Court, 10 the judge granted the injunction after one hearing in the absence of any evidence presented by the Petitioner. Unimaginable in a regular and fair proceeding but it is not so in the Philippine legal system, where judges are often regarded as sovereign and supreme.
Remarkably what is also apparent in these cases is that the perceived incompatibility with the law could easily be addressed by amending legislation, but that route proved to be far more difficult. RA 9211, whose provisions are much less stringent and lenient than the FCTC is protected by the tobacco industry whose other widely known tactic is legislative lobbying. Fortunately, the fight for a stronger, more effective health warnings was not in vain and there was a subsequent gain in the defeat. The court rulings, albeit adverse, to the government also paved the way for the passage of Republic Act No. 10643 otherwise known as the “Graphic Health Warnings on Tobacco Products”. 11 This was the positive political development brought about by the cases. At the very least, the law suits filed by the tobacco companies did not weaken the resolve of some well-meaning tobacco control advocates to push for the implementation of Article 11. The legislative process though proved to be as tedious, if not more tedious due tothe influence of the allies of the tobacco industry within the legislature.
The eventual passage of RA 10643 mooted the petition filed by the DOH before the Supreme Court. Inevitable, as it took at least two years for the Supreme Court to act on the Mighty petition from the time it was filed in 2011. The very slow judicial process is also a significant factor, harmful to the government as it effectively stalled the implementation of AO-2010-0013 for 3 long years.
Of course, the legal consequences of the rulings as to the applicability of the FCTC as a valid domestic law linger to the present. While most international jurisdictions have recognized both the validity and applicability of the FCTC, 12 the Philippines remained skeptical too often, jeopardizing its full recognition as a valid domestic law. 13
All court rulings have legal, social and political consequences from which we, especially the government could learn from. The GHW cases were not an exception. To protect their commercial interests, the tobacco industry initiates litigation and while passing a legislation would be a preferable solution, there has to be an alternative via an effective legal defense whenever a public health reform against tobacco products is challenged. Litigation could be beneficial in achieving the tobacco control objectives of the government but to be successful, the government must be prepared.
While the prospect of success may seem nil given the resources of the industry, the government is not paralyzed. It can draw on the expertise of lawyers in the fields of constitutional law, international law, public health, remedial law, effective use of international precedents and evidence, shaping of public opinion and support from tobacco control advocates, and international organizations.
Boldly drawing on the resources already available could spell VICTORY for the government in tobacco control litigation.
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1 WHO report on the global tobacco epidemic, 2015. Raising taxes on tobacco. WHO, Geneva. Accessible at:
http://www.who.int/tobacco/global_report/2015/report/en/.
2 World Health Organization (WHO), “WHO Global Report Mortality Attributable to Tobacco.” Geneva: WHO Press;
2012.
3 WHO report on the global tobacco epidemic, 2015: Raising taxes on tobacco. Geneva: World Health Organization;
2015.
4 Jha P, Nugent R, Verguet S, Bloom D, Hum R. Chronic disease prevention and control. Copenhagen: Copenhagen
Consensus Centre; 2012 cited in https://www.who.int/fctc/mediacentre/news/2015/WHOTobaccoReport.pdf
5 The Philippines signed the FCTC on September 23, 2003, the concurrence of the Senate to the treaty was
obtained on April 25, 2005, and the instrument was deposited on June 6, 2005.
6 https://www.who.int/fctc/en/
7 signed by then Secretary of Health, Esperanza I Cabral
8 The author served as a State Solicitor from 2001 to 2011 and defended the Department of Health in some of the
civil cases filed by the tobacco industry against the government.
9 Filed with the RTC, Branch 15 of Malolos Bulacan, and before the sala of Hon. Alexander Tamayo.
10 Docketed and consolidated as GR. NO. 193414: DEPARTMENT OF HEALTH V. HON. TAMAYO; G.R. NO. 195177:
DEPARTMENT OF HEALTH v. HON. REYES AND FORTUNE TOBACCO G.R. NO. 199503: JUAN FLAVIER, ET. AL.. V.
HON. DUMAYAS, ET. AL.G.R. NO. 202461: DEPARTMENT OF HEALTH V. PMFTC, INC. SUPREME COURT, EN BANC
2011
11 Republic Act 10643, was passed on 15 July 2014. Beginning in 2016, the law required cigarette manufacturers to
place graphic health warnings on 50% of each of the principal display areas of cigarette packs.
12 seehttp://tobaccocontrol.bmj.com/content/early/2018/06/01/ tobaccocontrol-2018-054329.full#block-system-
main by S. Zhou, J. Liberman and E. Ricafort.
13 In a recent case, Philippine Tobacco Institute v. City of Balanga, Civil Case No. 10699, while the trial court (RTC,
Branch 93) expressly recognized the applicability of the WHO FCTC to the case, it failed to consider that in the
event of conflict between the two laws, then the doctrine of statutory construction must be applied.
Download Here: GHW Cases Experiences