On PTI’s letter to LGUs requesting for participation in public hearings on proposed ordinances and pushing for a model ordinance

The Framework Convention Alliance on Tobacco Control, Philippines (“FCAP”) issues this Position Statement in light of the misleading and deceiving action taken by the Philippine Tobacco Institute, Inc. (PTI) in sending letters to the heads of various local government units apprising them of various memoranda issued by the Department of Interior and Local Government (“DILG”) enjoining LGUs to be strictly compliant with the provisions of the Tobacco Regulation Act (RA 9211) when enacting their ordinances. Attached to the PTI letter is a DILG and PTI Model Ordinances. The PTI in its letter expressed its desire to work closely with governments and public health authorities and offered to help in efforts to “align local ordinances on tobacco regulation with existing national laws”. In closing, the PTI letter stressed that it wished to be notified and invited to any public hearing discussing any proposed ordinance, or proposed amendment to an existing ordinance.

FCAP takes the position that PTI’s letter and the assertions found therein constitute tobacco interference as defined under treaty law and existing government regulations. It is an attempt by the tobacco industry to influence and direct health policies and ordinance enactments towards less than ideal standards, particularly those set by the World Health Organization-Framework Convention on Tobacco Control (WHO FCTC). The letter is a deceptive guise hiding behind a cloak of well-meaning words of cooperation in addressing public health concerns. More seriously, it is an attempt by the tobacco industry to ingratiate itself into policy-making and regulatory bodies to frustrate the good intentions, inroads and milestones which have already been set and achieved by various LGUs.
Article 5.3 of the WHO FCTC, ratified by the President on September 23, 2003 and concurred in by the Senate on April 25, 2005, provides that “the Parties, in setting and implementing their public health policies with respect to tobacco control, shall act to protect these policies from commercial and vested interests of the tobacco industry.”

The Article 5.3 Guidelines, which was adopted by the Conference of the Parties in November 2008 to assist Parties in implementing Article 5.3, states that “government personnel must avoid interaction with the tobacco industry and if any dealing is necessary for the latter’s regulation, supervision and control, it must be transparent and accountable.”

For the past few years, local government units, civil society advocates, church groups and various government agencies have joined hands to establish and implement tobacco control policies aimed at curbing the deadly effects of tobacco smoking. These efforts have resulted in success stories involving LGUs all over the country adopting and enacting smoke-free ordinances that promote public health.

PTI’s letter is an attempt to undermine these efforts and prevent the enactment of more ordinances which the PTI alludes to as non-compliant with the national law, that is, RA 9211.

FCAP submits that the PTI letter is seriously flawed and does not deserve consideration, for the following reasons:

A. Local Government Units have the DUTY and MANDATE to promote the general welfare of their constituency and enact laws, under local and international laws.

Local government units not only have the power, but are actually mandated, to enact laws which will promote the general welfare and health of their constituents. The mandatory nature of the exercise of this power is evident in the use of the word “shall” in the following relevant laws:

Under Article 8 of the WHO FCTC, it is provided:

2. Each Party shall adopt and implement in areas of existing national jurisdiction as determined by national law and actively promote at other jurisdictional levels the adoption and implementation of effective legislative, executive, administrative and/or other measures, providing for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places.
Under Philippine local Laws, more specifically under the General Welfare Clause of the Local Government Code, it is provided that:
“Sec. 16. 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… 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, ... and preserve the comfort and convenience of their inhabitants.”
The PTI letter is misleading because by attaching various DILG memoranda it gives the impression that some LGUs who follow the Department of Health (DOH) smoke free ordinance template providing for 100% smoke-free environments are violating the provisions of RA 9211 by enacting ordinances which are not consistent with the national law’s provisions. And for those who are similarly minded, the letter cautions LGUs to strictly adhere to the provisions of RA 9211. The PTI letter also assumes, quite mistakenly, that the ordinances enacted by LGUs in the exercise of their autonomous power to enact laws are subject to DILG interpretation.

There is an inherent weakness in the foregoing matters raised by PTI, for the following reasons:
1. The DILG does not have the authority to interpret a law, as this is a function of the courts. At the very least, a valid opinion must come first from the Department of Justice (DOJ), not the DILG. The various DILG memoranda attached to PTI’s letter provide unbridled and unauthorized interpretation by the DILG of alleged violations in the implementation of RA 9211. It is the function of the courts to interpret the law. The Department of Justice can also issue an opinion on a legal issue.
2. The DILG is challenging the definitions of “enclosed area” and “public place” as defined in the DOH template which adopts the FCTC definitions of these two terms. The DILG refuses to recognize the FCTC definitions because “expanding the scope of prohibitions under RA 9211 is invalid” and not in consonance with the national law.

The WHO-FCTC was adopted in May of 2003 by 191 member states of the World Health Assembly. It is the world’s first global public health agreement devoted entirely to tobacco control wherein the signatory states agreed to pursue broad goals on international tobacco control and sets the minimum standards each signatory state must comply with as regards tobacco regulation including smoke-free places and comprehensive advertising bans.

The Vienna Convention on the Law of Treaties (VCLT) defines ratification as the action whereby a State establishes on the international plane its consent to be bound by a treaty. Article 26 of the VCLT provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

RA 9211 was passed into law in June of 2003. Subsequent to the passage into law of RA 9211, the Philippine Government ratified the FCTC in September of 2005.

Under the Doctrine of Incorporation, our country adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations. Our country is then bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda -- international agreements must be performed in good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties.

Pacta sunt servanda is embodied in Art 26 of the Vienna Convention. This obliges parties to a treaty to observe treaty commitments in good faith and such parties “may not invoke the provisions of its internal law as a justification for failure to perform a treaty.” (Vienna Convention, Art 27)

The DOH template was drafted with the purpose of following Art. 8 of the FCTC, which calls for the adoption and implementation of effective legislative, executive and/or administrative measures providing for protection from exposure to tobacco smoke in indoor workplaces/public places, as well as the Guidelines to Art. 8 which states that there is no risk-free level of exposure to secondhand smoke

In the case of Government of the USA v. Judge Purganan, [G.R. No. 148571. December 17, 2002], Justice Vitug wrote a dissent which, though not authoritative, nevertheless should be considered here:

“…The constitutional requirement that the treaty be concurred in by no less than two-thirds of all members of the Senate (Article 21, Article VII) is, for legal intent and purposes, an equivalent to the required transformation of treaty law into municipal law.

“In preserving harmony between treaty law and municipal law, it is submitted — 1) That treaty law has the effect of amending, or even repealing an inconsistent municipal statute, a later enactment being controlling, 2) but that an inconsistent municipal statute subsequently passed cannot modify treaty law, without the concurrence of the other state party thereto, following the generally accepted principle of pacta sunt servanda.

3. The DOH template does not violate the provisions of RA 9211, as interpreted by the DILG.
It should be stressed that the DOH template is in consonance with, and not contrary to, RA 9211. Sec. 6 of RA 9211 provides that in all enclosed places that are open to the general public, where smoking may expose a person other than smoker to tobacco smoke, the owner, proprietor, operator, etc., shall establish smoking and non-smoking places. Under the same provision, the smoking area may include a designated smoking area within the building, which may be an open space or a separate area. Since the use of the word “may” is “permissive”, the owners or operators may establish the smoking area outside of the enclosed space, in an open area. This is especially true when the following condition is met, that is, “where smoking may expose a person other than smoker to tobacco smoke”. The designated smoking area may be located outside and no smoking may be allowed in the entire enclosed place.

More than this, RA 9211 does not prohibit government agencies, LGUs, or private establishments from extending the coverage of the smoking ban. LGUs can choose to adopt stricter policies that prohibit smoking in areas not presently covered by the law.

4. The DOH template does not violate Sec. 22 of RA 9211 on Ban on Advertisement.
Another misleading statement is that LGUs may have resorted to indiscriminate and unwarranted enforcement of Section. 22 of RA 9211 and wrongful interpretation of the word “premises” found in DILG M.C. No. 2007-126 and DILG Memo dated September 27, 2012.

Again, the FCTC provides under Article 13.4 that each “Party shall in accordance with its constitution or constitutional principles, undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship.” The Philippines is a Party to the FCTC, and as discussed above, under obligation to follow this treaty law.

Moreover, it should be noted that the interpretation of the scope of the word “premises” is still under consideration by the courts in a pending case where a member of the tobacco industry instituted a declaratory relief action with the court on the eve of the effectivity of the ban on outdoor advertising. There is no injunction or temporary restraining order which restricts LGUs or anybody from enforcing Sec. 22 of RA 9211 by prohibiting tobacco advertisement, except inside the four walls of store premises.

B. PTI’s request to be notified and invited to public hearings of any proposed ordinance is not obligatory.

PTI’s letter requests that it “be notified and invited in the event that a public hearing will be scheduled to discuss any proposed ordinance, or any proposed amendment to an existing ordinance, seeking to regulate the packaging, use, sale, distribution, and advertisement of tobacco products in your locality”.

FCAP submits that there is no obligation on the part of the LGU to comply, for the following reasons:

The PTI only issued a request. Since it is a request, the local government unit can choose not to grant the request. It is in fact not wise to invite the tobacco industry to a public hearing which seeks to regulate and control tobacco use and people’s exposure to tobacco smoke and other regulatory measures meant to protect the public from cigarette smoking. To draw an analogy, Red Cross would not think of inviting Dracula to any of its blood-letting activities. It does not take a genius to deduce that PTI seeks invitation so that it can interfere with health policies of the LGU, try to water down provisions in the draft ordinance which allegedly goes beyond the provisions of RA 9211, convince the LGU and the public that PTI’s model ordinance should be followed, and otherwise interfere in various ways so as to “defeat, dilute or delay” the passage of 100% smoke-free ordinances which does more to promote the public’s health rather than promote the tobacco industry’s business and profitability. There is absolutely no reason to accede to PTI’s request.

C. PTI’s offer to work with governments and public health authorities” on “public health concerns, constitutes tobacco interference and acceptance of the same by an LGU is a clear violation of law.

PTI in its letter offered “to work with governments and public health authorities and humbly offer our services to do what we can to respond to public health concerns.” This is tobacco interference at its worst. The PTI or any member of the tobacco industry should not be allowed to work with governments and public health authorities on tobacco control measures. This is exactly what treaty law and local regulations seek to prohibit.

The treaty law in point is Article 5.3 of the WHO FCTC which states that “the Parties, in setting and implementing their public health policies with respect to tobacco control, shall act to protect these policies from commercial and vested interests of the tobacco industry.”

The Article 5.3 Guidelines, which was adopted by the Conference of the Parties in November 2008 to assist Parties in implementing Article 5.3, states that “government personnel must avoid interaction with the tobacco industry and if any dealing is necessary for the latter’s regulation, supervision and control, it must be transparent and accountable.”

Cognizant of the foregoing provisions of the WHO FCTC, which also encourages Parties to implement additional measures in consonance with those required by the Treaty and its Guidelines, the Civil Service Commission and the Department of Health promulgated CSC-DOH JMC 2010-01 entitled, Protection of the Bureaucracy Against Tobacco Industry Interference, which prohibits, among others, the following:

3.0 Prohibitions

3.1 Unnecessary Interaction with the Tobacco Industry

Public officials and employees shall interact with the tobacco industry only when strictly necessary for the latter’s effective regulation, supervision and control. Transparency in all interactions with the tobacco industry shall be observed. Any unnecessary interaction with the tobacco industry shall be carried out in such a way as to avoid the creation of any perception of a real or potential partnership or cooperation resulting from or on account of such interaction. In the event the tobacco industry engages in any conduct that may create such a perception, public officials and employees shall act to prevent or correct this perception.
According to the Joint Memorandum Circular, “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.”

The Circular covers all government officials and employees, regardless of status, in the national or local government including GOCCs, with original charters, state colleges and universities. It provides that “any violation of this circular shall be considered a ground for administrative disciplinary action pursuant to Rule IV of the Omnibus Rules implementing Book V of Executive Order No. 292, without prejudice to the filing of criminal as well as civil actions under existing laws, rules and regulations.”

In view of all the foregoing, FCAP enjoins all LGU-recipients of the PTI letter to exercise utmost caution and vigilance in considering and reviewing the letter and its contents. FCAP hopes that the LGUs would be mindful of the intent behind the letter, which is to interfere with tobacco control efforts and policies, to sow seeds of doubt and sometimes fear, hoping to discourage and derail LGUs in their efforts at fully promoting public health. The tobacco industry has a long history of interference here and abroad, and these have been duly documented. The PTI letter is one such glaring proof of tobacco interference.

Respectfully submitted by:

The Framework Convention on Tobacco Alliance, Philippines (FCAP)

Represented by:

Executive Director