SC: Health dep't has no power to ban cigarette ads

MANILA, Philippines – The Supreme Court (SC) has upheld a 2011 Court of Appeals (CA) decision that nullified a Department of Health (DOH) resolution banning tobacco advertisements and promotions.

"In fine, the Court agrees with the CA that it is the IAC (Inter-Agency Committee)-Tobacco and not the DOH which has the primary jurisdiction to regulate sales promotion activities," the High Court said in an 11-page decision released in March and made public recently.

In 2008, DOH's Bureau of Food and Drugs (BFAD, later renamed Food and Drug Administration) denied permit applications for at least two promotional activities of tobacco firm Philip Morris Philippines Manufacturing Incorporated (PMPMI). It cited a DOH memorandum that prohibited all promotions, advertisements, and sponsorships of tobacco products.

PMPMI appealed this with the department, only to be turned down in 2009. This prompted the tobacco firm to elevate the case before the CA. Another company, Fortune Tobacco, moved to intervene in the case.

Two years later, in 2011, the CA ruled in favor of the tobacco industry and maintained that DOH and BFAD committed grave abuse of discretion when it prohibited firms from conducting promotional activities. (READ: Tobacco firms win legal battles in PH)

The appellate court said DOH has no authority to enforce the provisions of Republic Act 9211 or the Tobacco Regulation Act of 2003 since it is the inter-agency committee has the "exclusive power and function" to administer and implement the law’s provisions, including restrictions on tobacco promotions. 

IAC-Tobacco is chaired by the secretary of the Department of Trade and Industry (DTI), while the DOH secretary sits as vice chairperson. (READ: WHO chief wants tobacco firms 'pushed out of business')

What the law says

DOH sought the reversal of the CA ruling by elevating the issue to the SC. The department claimed it has authority to rule on permit applications for promotional activities by virtue of articles 109 and 116 of the RA 7394 or the Consumer Act of the Philippines.

But the SC decision noted that those provisions have been repealed by RA 9211. 

"After a meticulous examination of the...pertinent provisions of RA 7394 and RA 9211, the Court finds that the latter law impliedly repealed the relevant provisions of the former with respect to the authority of the DOH to regulate tobacco sales promotions," the High Court added. 

With the sin tax law and the graphic health warning law, the Philippines is among 92 countries in the world that have implemented at least one effective tobacco control measure at the highest level. 

But heath advocates are still pushing for a total ban of tobacco advertising, promotion, and sponsorship in hopes of closing down tobacco companies instead of merely regulating them. (READ: INFOGRAPHIC: Imagining a world with no tobacco)

Tobacco kills nearly 6 million people each year, with more than 5 million as a result of direct tobacco use. In the Philippines, 240 Filipinos die every day because of major tobacco-related diseases.  Jee Y. Geronimo/