DOH can’t impose ban on tobacco firms’ promo events – SC

WHILE pursuing its campaign to curb the prevalence of smoking among Filipinos, the Department of Health (DOH) has no authority to impose a total ban on activities promoting the vice after all.

The Supreme Court has upheld a Court of Appeals’ (CA) ruling junking the health department’s 2009 decision that barred two Philip Morris Philippines Manufacturing Inc.’s (PMPMI) sales promotion activities, saying only the Inter-Agency Committee-Tobacco (IAC-Tobacco) created by law had the sole authority to exercise such regulatory powers.

In an 11-page ruling, the high court’s First Division declared null and void the DOH’s  decision that prohibited all tobacco promotional activities, a move in which the health department had invoked Republic Act 7394, or the Consumer Act, and Republic Act 9211, or the Tobacco Regulation Act of 2003.

It also ruled that the DOH had wrongly interpreted the 2003 tobacco law as having “completely banned tobacco advertisements, promotions, and sponsorships, as promotion is inherent in both advertising and sponsorship.”

Instead, the court agreed with the CA ruling, which said that while “advertising and sponsorship [by tobacco firms] were completely banned,” promotional activities were “only restricted.”

“After a meticulous examination of the above-quoted pertinent provisions of RA 7394 and RA 9211, the Court finds that the latter law impliedly repealed the relevant provisions of the former with respect to the authority of the DOH to regulate tobacco sales promotions,” said the ruling penned by Associate Justice Estela Perlas-Bernabe.

“Hence, if the IAC-Tobacco was created and the decision expressly given exclusive authority to implement the provisions of RA 9211, it signifies that it shall also take charge of the regulation of the use, sale, distribution, and advertisements of tobacco products, as well as all forms of “promotion,” which essentially includes “sales promotion,” ruled the high court.

The Supreme Court also remanded to the inter-agency body Philip Morris’ denied promo permit applications.

The ruling stemmed from the DOH’s appeal to the CA’s 2011 ruling, where the appellate court sided with the tobacco firm and ruled that the health department had “wrongfully arrogated unto itself the authority given to the IAC-Tobacco” in terms of the regulation of tobacco promotions.

The decision, dated March 25 and released only recently, found that the DOH’s appeal to the CA ruling was “bereft of merit.”

Philip Morris had brought the matter up on certiorari before the appellate court after the DOH’s adverse decision against its two promotional activities- the Gear Up Promotional Activity and the Golden Stick promo.

The mandate of IAC-Tobacco, the Supreme Court said, meant that the DOH and the Food and Drug Administration (FDA), the agency that was the first to deny Philip Morris’ promo permit applications, “have been effectively and impliedly divested of any authority to act upon applications for tobacco sales promotional permit, including PMPMI’s.”

IAC-Tobacco is a body chaired by the Secretary of the Department of Trade and Industry and vice-chaired by the DOH Secretary.  Its members include the secretaries of agriculture, justice, finance, environment, science and technology, and education, the National Tobacco Administration, a tobacco industry representative, and a public health NGO representative. ABC