Professional Documents
Culture Documents
-versus-
FORTUNE TOBACCO
CORPORATION, PHILIP MORRIS
PHILIPPINES MANUFACTURING,
INC., PMFTC, INC., TELENGTAN
BROTHERS & SONS, INC., DOING
BUSINESS UNDER THE NAME AND
STYLE LA SUERTE CIGAR AND
CIGARETTE FACTORY, MIGHTY
CORPORATION TOBACCO
COMPANY, JT INTERNATIONAL
(PHILIPPINES), AMERICAN
TOBACCO (PHILS) LTD,
ASSOCIATED ANGLO AMERICAN
TOBACCO CORP, IMPERIAL
TOBACCO CORPORATION, LA
3
CAMPANA FABRIA DE TABACOS,
INC., TABAQUERIA DE FILIPINAS
INC., CAPITAL TOBACCO CORP.,
STERLING TOBACCO
CORPORATION, PHILIPPINE
TOBACCO INSTITUTE and THE
DEPARTMENT OF HEALTH.
Respondents.
THE PARTIES
5
2.6. Respondent JT International (Philippines), Inc. is a domestic
corporation duly organized and existing under and by virtue of the laws of
the Republic of the Philippines. It is engaged in the business of
importation, manufacturing, distribution and marketing of tobacco
products, such as Mild Seven, Winston, Salem and Camel. It may be
served with summons and other court processes at its principal business
address at Unit 2704 & 2705, 27/F Discovery Centre, 25 ADB Avenue,
Ortigas Center, Pasig City.
7
2.15. Respondent Department of Health, the agency that is tasked
to implement and enforce the subject administrative issuance, is
impleaded herein as its rights and obligations would be affected by the
declaratory relief sought by Petitioners.
3. Considering that the instant Petition involves the construction and validity
of a statute and an administrative order, notice of this Petition is likewise given to the
Office of the Solicitor General in accordance with Section 3, Rule 63 of the Rules of
Court.1
ANTECEDENT FACTS
4. In 1992, Republic Act No. 7394 or the Consumer Act of the Philippines
(hereinafter referred to as ―Consumer Act‖) was enacted with the objective of (i)
protecting consumers against hazards to health and safety and deceptive, unfair and
unconscionable sales acts and practices and (ii) provision of information and education
to facilitate sound choice and the proper exercise of rights by the consumer. Article 94
of the Consumer Act required cigarette packages to bear the following statement or its
equivalent in Filipino in a conspicuous place:
1
Section 3 of Rule 63 of the Rules of Court provides:
Section 3. Notice on Solicitor General. — In any action which involves the validity of a statute, executive
order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the
party assailing the same and shall be entitled to be heard upon such question .
8
"GOVERNMENT WARNING; Cigarette are Addictive";
"GOVERNMENT WARNING; Tobacco Can harm your
Children"; or
"GOVERNMENT WARNING; Smoking Kills."
9
If the guilty officer is an alien, he shall summarily be
deported after serving his sentence and shall be forever
barred from re-entering from the Philippines
6. On 4 September 2005, more than three (3) years after the enactment of
the Tobacco Regulation Act, the World Health Organization (WHO) Framework
Convention on Tobacco Control (hereinafter referred to as the ―FCTC‖), a treaty that
aims to reduce the public health harms of tobacco use, entered into force in the country
after ratification by the Philippine Senate. A copy of the FCTC is attached hereto as
Annex C.
2
Article 11 of the FCTC provides:
1. Each Party shall, within a period of three years after entry into force of this
Convention for that Party, adopt and implement, in accordance with its national law,
effective measures to ensure that:
(a) tobacco product packaging and labelling do not promote a tobacco product by
any means that are false, misleading, deceptive or likely to create an erroneous
impression about its characteristics, health effects, hazards or emissions,
including any term, descriptor, trademark, figurative or any other sign that directly
10
7. Article 7 of the FCTC requires States Parties to adopt and implement
effective legislative, executive, administrative or other measures necessary to
implement its obligations under Article 11 and provides that the Conference of the
Parties shall propose appropriate guidelines for the implementation of these Articles, to
wit:
8. In November 2008, more than three (3) years after the FCTC was ratified,
the Conference of the Parties adopted Guidelines for Implementation of Article 11 of the
FCTC on ―Packaging and labeling of tobacco products‖ (the ―Guidelines‖) to assist
Parties in meeting their obligations under Article 11 of the Convention, and propose
measures that Parties can use to increase the effectiveness of their packaging and
or indirectly creates the false impression that a particular tobacco product is less
harmful than other tobacco products. These may include terms such as ―low tar‖,
―light‖, ―ultra-light‖, or ―mild‖; and
(b) each unit packet and package of tobacco products and any outside packaging
and labelling of such products also carry health warnings describing the harmful
effects of tobacco use, and may include other appropriate messages. These
warnings and messages:
2. Each unit packet and package of tobacco products and any outside packaging and
labelling of such products shall, in addition to the warnings specified in paragraph 1(b) of
this Article, contain information on relevant constituents and emissions of tobacco
products as defined by national authorities.
3. Each Party shall require that the warnings and other textual information specified in
paragraphs 1(b) and paragraph 2 of this Article will appear on each unit packet and
package of tobacco products and any outside packaging and labelling of such products in
its principal language or languages.
1. For the purposes of this Article, the term ―outside packaging and labelling‖ in relation to
tobacco products applies to any packaging and labelling used in the retail sale of the
product.
11
labeling measures in communicating health risks and reducing tobacco use. A copy of
the Guidelines is attached hereto as Annex D.
3
Guidelines Implementing Article 11 of the FCTC
12
(hereinafter referred to as ―AO 2010-0013‖). A copy of AO 2010-0013, including its
Annex, is attached hereto as Annex E.
13
11. Annex 1 of AO 2010-0013 contains a template of nine (9) variations of
graphic health information as issued by the DOH:
14
12. Respondents Fortune Tobacco Corporation, PMFTC Inc., Telengtan
Brothers & Sons, Inc., Mighty Corporation Tobacco Company, and JT International
(Philippines), Inc. filed multiple suits in different Regional Trial Courts seeking to nullify
AO 2010-0013, which they allege to be null and void for, among others: (i) contravening
Section 13(g) of the Tobacco Regulation Act, (ii) compliance with AO 2010-0013 would
expose Respondents to penalties under the Tobacco Regulation Act, and (iii) lack of
legal authority of the DOH to issue the regulation.
13. This Petition for Declaratory Relief is filed pursuant to Rule 63 of the Rules
of Court and seeks a judicial determination of the construction of Section 13(g) of the
Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC, which construction
would affect the implementation of AO 2010-0013. The right to seek a declaratory
judgment is sanctioned by Section 1 of Rule 63 of the Rules of Court, which reads:
14. Jurisprudence4 has laid down the following requirements for an action for
declaratory relief to be entertained:
4
Jumamil v. CA, G.R. No. 144570, 21 September 2005.
16
15. An action for declaratory relief is warranted, as discussed below:
15.1. The subject matter of the issue for resolution involves a statute and
a government regulation, namely the Tobacco Regulation Act and AO 2010-
0013.
16. Petitioners have paid the required docket and other lawful fees and the
deposit for the costs simultaneous with the filing of the petition as evidenced by Official
Receipts attached to this petition.
Legal Interest
18. The DOH itself categorically recognizes the public’s interest in the
implementation and enforcement of AO 2010-0013 by devoting a provision on ―Public
Vigilance‖ to encourage the public to report violations of the administrative order, and
incorporating a mechanism for the public’s submission of reports of violations to the
Office of the Secretary at the national level and the Centers for Health Development at
the local level:
22. Cancer patients and survivors have been found to still smoke after
diagnosis and treatment of cancer5 – a testament to the addictive nature of the smoking.
5
Burke, Lola et al. Smoking Behaviors Among Cancer Survivors: An Observational Clinical Study,
American Society of Oncology Practice Journal of Clinical Oncology. Available from:
http://jop.ascopubs.org/content/5/1/6.abstract
19
Cancer survivors are at greater risk of cancer recurrence. The graphic health
information mandated by AO 2010-0013 would help deter these victims from continuing
or resuming their smoking addiction, whereas the ban on misleading descriptors would
protect them from marketing drives of tobacco companies aimed at deceiving them into
believing that a healthier option in cigarettes branded as ―light,‖ ―mild,‖ and other
similarly misleading terms is available.6 As such, these Petitioners have a direct and
material legal interest in the construction of Section 13(g) of the Tobacco Regulation Act
in relation to AO 2010-0013 and the FCTC insofar as the issuances address their right
to be protected from deceptive and/or inadequate information on cigarette packaging
and labelling as well as other forms of promotion that would lure them back to smoking.
The enforcement of AO 2010-0013 would help protect these Petitioners from resuming
tobacco consumption, which in the Petitioners’ case would definitely be a death
sentence.
6
Ibid.
20
construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013
and the FCTC to protect his family’s and his own right to health information and thus
prevent others from succumbing to a fate similar to that of his late brother.
Families of smokers
27. Petitioners Sarita Dueñas, Ofelia Narciso, Zenaida Aranceña, Lydia Chan,
Danilo del Rosario, Marilen Mendoza, Helen Gatdula, Radi Decolongon, Cecil Ibarra,
Leticia Arenas, Roxanne del Rosario, Annaliza M. Ranque, Myla Abalgar, Emilie R.
Castañeda, Sharla Ramos, Ma. Bella M. Edian, Wilbert Abalgar, Maricar Abalgar,
Marilyn M. Lavader, Virgilio L. Docot, Clara A. Bombita, Leah G. Cabadsan, Corazon A.
Lavador, Librada K. Altura, Adelino C. Lavador, Rosemarie B. Dolera, Vilma R. Merilo,
Nancy Gamboa, Angelyn T. Flores, Inocencio V. Traje, Adeluisa H. Maranan, Elvira V.
Traje, Gloria V. Casapao, Mylene M. Bendal, Lalin A. Gloria and Jose Warlito G. Altura
are members of families of smokers. Family members of smokers take the heaviest toll
in tobacco consumption due to exposure to secondhand smoke, which has been found
to be as lethal as direct consumption. Petitioners have personal and material legal
21
interest in the judicial determination of the construction of Section 13(g) of the Tobacco
Regulation Act in relation to AO 2010-0013 and the FCTC, considering that their health
and well-being stand to suffer directly from the undeterred tobacco consumption of their
family members aggravated by lack of health information and misleading and deceptive
marketing practices of the tobacco industry.
28. The burden that Petitioners suffer goes beyond health risks. Smoking
takes a financial toll on the family, especially for those who have family members suffer
from chronic illnesses related to tobacco, because of medical expenses and loss of
income caused by illnesses. It would not be amiss to state that the Civil Code places the
financial burden of support on family members, including expenses for medical
attendance.10 Smokers sufficiently informed of the hazards of smoking have a better
chance of quitting the habit and save their families from the financial and emotional
burden smoking causes. Hence, it is the right of family members to be protected from
the financial woes caused by smoking addiction, which is perpetuated by inadequate,
false, or misleading health information about tobacco products sought to be addressed
by AO 2010-0013.
7
World Health Organization Fact Files, 10 Facts on Second-Hand Smoke. Available from:
http://www.who.int/features/factfiles/tobacco/en/index.html
8
Ibid.
9
Ibid.
10
Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the family.
xxx
Art. 105. Subject to the provisions of the succeeding articles, the following are obliged to support each
other to the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood.
22
Minors and their Parents
11
The Philippines signed the United Nations Convention on the Rights of a Child on January 26, 1990
and ratified on 21 August 1990. Available from:
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en
12
The UN Convention on the Rights of the Child provides:
Article 3. Rights of the Child. - All children shall be entitled to the rights herein set forth without distinction
as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors.
(4) Every child has the right to a balanced diet, adequate clothing, sufficient shelter, proper
medical attention, and all the basic physical requirements of a healthy and vigorous life.
xxx
23
30. Petitioners who are parents, on the other hand, have the responsibility to
ensure the best interest of their children, which definitely includes ensuring the health
and welfare of minor children. Parents have the clear legal right duty, as set out in the
Family Code to prevent their children from acquiring habits detrimental to their health,
and represent them in all matters affecting their interests.13 Health, welfare and
educational entities, in turn, have the responsibility, as set out in the Child and Youth
Welfare Code, to assist the parents in looking after the health of the child.14
Youth
(8) Every child has the right to protection against exploitation, improper influences, hazards, and
other conditions or circumstances prejudicial to his physical, mental, emotional, social and moral
development.
(9) Every child has the right to live in a community and a society that can offer him an
environment free from pernicious influences and conducive to the promotion of his health and the
cultivation of his desirable traits and attributes.
(10) Every child has the right to the care, assistance, and protection of the State, particularly
when his parents or guardians fail or are unable to provide him with his fundamental needs for
growth, development, and improvement.
13
The Family Code provides:
Article 220. The parents and those exercising parental authority shall have with the respect to their
unemancipated children on wards the following rights and duties:
(1) To keep them in their company, to support, educate and instruct them by right precept and good
example, and to provide for their upbringing in keeping with their means;
xxx
(4) To furnish them with good and wholesome educational materials, supervise their activities, recreation
and association with others, protect them from bad company, and prevent them from acquiring habits
detrimental to their health, studies and morals;
(5) To represent them in all matters affecting their interests;
14
P.D. 603 or the Child and Youth Welfare Code provides:
Article 11. Promotion of Health. - The promotion of the Child's health shall begin with adequate pre-natal
and post-natal care both for him and his mother. All appropriate measures shall be taken to insure his
normal total development.
It shall be the responsibility of the health, welfare, and educational entities to assist the parents in looking
after the health of the child.
24
Jhoana Marie J. Zambrano, Yvonne Danielle G. Viñas, Julian Paolo R. Paraiso, Keilah
Gaile A. Villanueva, Alvin H. Tengonciang, Mary Rose S. Villalon, Glen T. Ventanilla,
Lesley Anne G. Tubio, Katrina S. Verzosa, Carlsberg Howard C. Tsang, Janella M. Tiu,
Vincent S. Roelalos, James A. Rondal, Armand Delo A. Tan, Jessica Grace T. Prego,
Aurora Aureo M. Reyes, Adrian M. Perez, Sahra May O. Paragas, Liezly Gayle F.
Limos, Gerald Caesar O. Libranda, Dennis C. Madarcos, Marion D. Lagmay, Tristan R.
Pagara, Abigail S. Maralit, Nathalyn T. Quan, Glennis Fiona J. Javelosa, Co-Neil R.
Relato and Nizhreen T. Mapandi, are citizens of the Philippines between the ages of
eighteen (18) and thirty five (35) years. As members of the youth sector, which is most
susceptible to the lures of tobacco use,15 and the sector where use of health information
with pictures has shown to be more effective,16 they have an actual and direct interest in
the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-
0013 and the FCTC.
32. Parties to the FCTC have expressed deep concern over the escalation in
smoking and other forms of tobacco consumption by children and adolescents
worldwide, particularly smoking at increasingly early ages. 17 As a sector which is the
primary target of tobacco companies in their marketing campaigns18, and thus, having
been long bombarded by a deluge of advertisements at such an impressionable age,
the youth is in dire need of measures that could save them from unknowingly falling
prey to the profit-driven schemes of these companies. The 2007 Global Youth Tobacco
Survey of the WHO shows the rising prevalence of smoking among the youth in the
Philippines -- almost 40% increase in prevalence of smoking among school children 13
to 15 years old within the span of 4 years.
33. The Guidelines Implementing Article 11 of the FCTC provide that ―[l]arger
warnings with pictures have been shown to be particularly effective with children and
young people, as they are more likely to be noticed, better communicate health risks,
and provoke a greater emotional response.19 The construction of Section 13(g) of the
Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC will have a direct
impact on the right of the youth to be more sufficiently and effectively informed of the ills
of tobacco use before they fall into an addiction that could ultimately cost their lives.
15
Preamble of the FCTC (Annex C)
16
Showing the truth, saving lives: the case for pictorial health warnings. World Health Organization (2009)
Available from:
http://www.who.int/tobacco/resources/publications/wntd/2009/materials/brochure/en/index.html
17
Preamble of the FCTC (Annex C)
18
see W ORLD HEALTH ORGANIZATION, THE TOBACCO INDUSTRY DOCUMENTS: A PRACTICAL MANUAL, 9-10, 13-
14 (2005)
19
Guidelines Implementing Article 11 of the FCTC.
25
Other Citizens Interested in Protecting
the Right to Life, the Right to Health and
the Public Interest
35. The Philippines is replete with laws establishing every Filipino’s right to
health and health information, providing for particular measures to guarantee said right.
Every person has the right to life, which is inextricably dependent on the right to health.
The Constitution recognizes this fundamental right of the people and affirms the
corollary duty of the State to protect and promote this particular right of every Filipino
citizen. Thus:
Section 15. The State shall protect and promote the right to health
of the people and instill health consciousness among them.
36. The Supreme Court has recognized that the right to health is an
enforceable legal right, fundamental in character and inherent in every human being. In
fact, the Supreme Court has clearly held in a landmark case that the right to health
―unites‖ with the right of the people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature, and that such right ―concerns nothing less than self-
preservation and self-perpetuation…the advancement of which may even be said to
predate all governments and constitutions….As a matter of fact, these basic rights need
not even be written in the Constitution for they are assumed to exist from the inception
of humankind.‖20
20
Oposa v. Factoran, G.R. No. 101083, 30 July 1993.
26
The right to health is closely related to and dependent upon the
realization of other human rights, as contained in the International
Bill of Rights, including the rights to food, housing, work, education,
human dignity, life, non-discrimination, equality, the prohibition
against torture, privacy, access to information, and the freedoms of
association, assembly and movement. These and other rights and
freedoms address integral components of the right to health.21
38. Furthermore, the Petitioners have a right to know what will threaten their
right to life and to health, which right is well-settled to be superior to the mere right to
property that respondent tobacco companies invoke in defying public health regulations
such as AO 2010-0013. In the drafting of the Constitution, in fact, it was made clear that
in the hierarchy of rights, life and liberty are above property. As testified to by Fr.
Joaquin Bernas:
―In one same sweeping sentence, the Constitution has etched out
the basic protection given to life, liberty and property. The impression is
thus given that that the Constitution gives to property the same degree
and quality of protection that it gives to life and liberty. [However],
…Convention deliberations clearly recognized the social character of
private property, emphatically enunciated in [1935] Article II, Section
6, [that] definitely placed property in a position inferior to life or
liberty.”22 [Emphases supplied]
21
General Comment No. 14 (2000), par. 3.
22
Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A Commentary (2009),
page 111.
27
40. The issues involved in the case undoubtedly have a direct effect upon the
State’s interest in and obligation of respecting, protecting, promoting, and fulfilling the
public’s inherent and constitutional right to life and to health. It involves matters of
public right and interest, where it is the people who are the real parties. It is the right
and duty of every citizen to thus interfere and vindicate such public right and interest. 24
42. Furthermore, the rules on standing have oft been relaxed where the case
involves issues of transcendental importance or where it has far-reaching implications.
Thus, the Supreme Court, in a number of cases, has adopted a liberal policy, allowing
ordinary citizens, members of Congress, and civic organizations to prosecute actions
involving the constitutionality or validity of laws, regulations and rulings. 26 The Supreme
Court has held that cases of transcendental importance to the public must be settled
promptly and definitely, brushing aside technicalities of procedure, such as when
ordinary citizens and taxpayers are invoking only an indirect and general interest shared
in common with the public.27
23
197 U.S. 11 (1905)
24
David v. Macapagal-Arroyo, G.R. No. 171396, et seq., 3 May 2006.
25
Franciso v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133;
Senate of the Philippines v. Eduardo Ermita, G.R. No. 169777, April 25, 2006.
26
See David v. Macapagal-Arroyo, G.R. No. 171396, et seq., 3 May 2006, 489 SCRA 160; Tañada v.
Tuvera, G.R. No. 63915, 24 April 1985, 136 SCRA 27 (1985); Legaspi v. Civil Service Commission, G.R.
No. 72119, 29 May 1987, 150 SCRA 530 (1987); Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas, Inc. v. Tan, L. No. 81311, 30 June 1988, 163 SCRA 371 (1988); Albano v. Reyes, G.R. No.
83551, 11 July 1989, 175 SCRA 264 (1989); Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform, G.R. No. 78742, 14 July 1989, 175 SCRA 343 (1989); Gonzales v.
Macaraig, Jr., G.R. No. 87636, 19 November 1990, 191 SCRA 452 (1990); Maceda v. Macaraig, Jr.,
G.R. No. 88291, 31 May 1991, 197 SCRA 771 (1991); Osmeña v. Comelec, G.R. Nos. 100318, 100308,
100417, 100420, 30 July 1991, 199 SCRA 750 (1991); De Guia v. Comelec, G.R. No. 104712, 6 May
1992, 208 SCRA 420 (1992); Bagong Alyansang Makabayan v. Zamora, G.R. Nos. 138570, 138572,
138587, 138680, 138698, 10 October 2000, 342 SCRA 449 (2000); Lim v. Executive Secretary, G.R. No.
151445, 11 April 2002, 380 SCRA 739 (2002); Chavez v. Public Estates Authority, G.R. No. 133250, 9
July 2002, 384 SCRA 152 (2002) (emphasis added).
27
Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA
343, 364-365 [1989].
28
43. Given the fundamental nature of the right involved in the instant case, it is
respectfully submitted that the Petitioners, representing Filipino citizens who are
smokers or consumers of tobacco products, their family members, victims of tobacco-
related diseases, minors and their parents, youth, and concerned citizens invoking their
constitutional right to health, be recognized as clothed with sufficient legal interest to
seek the judicial determination of the construction of Section 13(g) of the Tobacco
Regulation Act in relation to AO 2010-0013 and the FCTC.
ISSUE
44. The pivotal issue in this case is whether Section 13(g) of the Tobacco
Regulation Act precludes the DOH from issuing AO 2010-0013.
ARGUMENTS
I.
SECTION 13(G) OF THE TOBACCO REGULATION
ACT DOES NOT CURTAIL THE RIGHT AND DUTY
OF DOH TO ISSUE REGULATIONS PROTECTING
THE RIGHT TO HEALTH AND HEALTH
INFORMATION THROUGH AO 2010-0013.
II.
III.
DISCUSSION
29
I. SECTION 13(G) OF THE TOBACCO
REGULATION ACT DOES NOT
CURTAIL THE RIGHT AND DUTY OF
DOH TO ISSUE REGULATIONS
PROTECTING THE RIGHT TO
HEALTH AND HEALTH
INFORMATION THROUGH AO 2010-
0013.
47. The DOH is undeniably the government authority that is competent to deal
with health information and consequently, the ―competent national authority‖ to approve
tobacco health warnings under the FCTC and its Guidelines. This authority to undertake
measures to protect public health through regulations relating to health information on
product packaging was likewise affirmed by the Supreme Court en banc in the case of
Pharmaceutical and Health Care Association of the Phil. (PHAP) v. Health Secretary. 30
48. The Tobacco Regulation Act does not and could not curtail the mandate of
the DOH under the Constitution and the Administrative Code to protect and promote the
right to health. The Tobacco Regulation Act does not prevent the DOH from exercising
28
Section 15, Article II, 1987 Philippine Constitution.
29
Title IX, Chapter I, Section 2 of the 1987 Administrative Code.
30
G.R. No. 173034, 09 October 2007.
30
the power to require other health information or prohibit misleading descriptors on
tobacco product packages. Any interpretation to the contrary would be ludicrous and
would have an effect of making Section 13(g) of the Tobacco Regulation Act
unconstitutional for being overbroad and curtailing Constitutional mandates to promote
the right to health.
50. Furthermore, the DOH retains jurisdiction under the Consumer Act to
issue additional labelling and packaging requirements to protect the consumers against
hazards to health and safety, deceptive, unfair and unconscionable sales acts and
practices, and facilitate sound choice and the proper exercise of consumer rights, as
enshrined under Article 3 thereof, notwithstanding the express amendment of Article 94
with respect to specific warnings for tobacco products.
51. Article 79 of the Consumer Act provides that if the Department
determines that regulations containing requirements are necessary to prevent the
deception of the consumer, it may issue additional labelling and packaging
31
Smart Communications, Inc. (Smart) vs. National Telecommunications Commission (NTC), G.R. No.
151908, 12 August 2003; G.R. No. 152063, 12 August 2003.
31
requirements.32 The provision provides for instances when such regulations may be
released. However, it must be stressed that the purpose of the law is to consider the
best interest of the consumers in the interpretation and implementation of the Act,
including its implementing rules and regulations. Thus, Article 79 should not be
considered an exclusive enumeration of the regulations that the Department may issue.
32
The Consumer Act provides:
Art. 79. Authority of the Concerned Department to Provide for Additional Labeling and
Packaging Requirements. - Whenever the concerned department determines that
regulations containing requirements other than those prescribed in Article 77 hereof are
necessary to prevent the deception of the consumer or to facilitate value comparisons as
to any consumer product, it may issue such rules and regulations to:
(a) establish and define standards for characterization of the size of a package
enclosing any consumer product which may be used to supplement the
label statement of net quality, of contents of packages containing such
products but this clause shall not be construed as authorizing any limitation
on the size, shape, weight, dimensions, or number of packages which may
be used to enclose any product;
33
The Implementing Rules and Regulations of the Tobacco Regulation Act provides:
Title VI – PENALTIES AND ENFORCEMENT PROCEDURES
Rule I – Penalties
Section 1. Punishable acts. – The following acts are punishable under the Act:
1.1. Smoking in designated public places where smoking is prohibited;
1.2. Non-compliance by the owners, proprietors, operators, possessors, managers or administrators
of enclosed places open to the general public, public and private workplaces and other places not
covered under Section 5 of the Act to establish smoking and non-smoking areas under Section 6
of the Act;
1.3. Sale or distribution of tobacco products by means of a vending machine or other self-service
facility, unless the vending machine or similar contraption has a mechanism for age verification
under Section 7 of the Act;
1.4. Non-compliance by the retailer to the requirements of Section 8 of the Act with respect to
tobacco-related self-service displays or facilities, or to remove such non-compliant self-service
displays or facilities;
32
―Non-compliance with the required health warnings on packages of tobacco
products intended for sale in the Philippines under Section 13 of the Act.” As
such, the implementing rules clearly show that the respondents’ claim that they will be
exposed to criminal sanctions under Section 13(g) if they comply with AO 2010-0013 is
erroneous. As to Respondents’ main contention that compliance with AO 2010-0013
exposes them to penalties under Section 32(c) of the Tobacco Regulation Act, this
argument proceeds from the erroneous premise that the State’s power to regulate to
tobacco regulation is confined only to the provisions of the Tobacco Regulation Act.
REP. BIAZON. The three (3) Warnings. And then, it was followed by the
phrase ―or any other similar warning that the manufacturer may choose
to place on the package.‖ I propose to delete the …
xxx
REP. BIAZON. (Continuing) I propose to delete the phrase – “or any
other similar warning that the manufacturer may chose (sic) to
place on the package” so that we would standardize the health
warnings.
xxx
34
REP. BlAZON. I would just like to reiterate my proposed amendment to
delete line 2 and 3 of page 6 - " ... or any other similar warning that the
manufacturer may choose to place ... "
55. Furthermore, the requirements under the Tobacco Regulation Act and AO
2010-0013 are entirely separate and distinct, with marked differences as to content,
size, location, and scope. There is actually no inconsistency or conflict between the two
issuances -- they are complementary.
34
Joint deliberations of the Committee on Trade and Industry, Committee on Health and Committee on
Public Information of the House of Representatives, February 19, 2003, pp. 33-36.
35
2010-0013, on the other hand, requires graphic health information to be
placed on the upper portions of each tobacco product or package
occupying no less than 30% of the front panel and 60% of the back
panel (or all corresponding panels of the unit packet or package if in
non-standard packaging) in a manner that ensures visibility.
35
Secretary of Justice v. Lantion, G.R. No. 139465, 18 January 2000.
36
177 SCRA 500
36
principle lex posterior derogat priori takes effect -- a treaty may
repeal a statute and a statute may repeal a treaty.
59. Following the principle of lex posterior derogat priori, the FCTC, as
amplified by the Guidelines, should prevail over the Tobacco Regulation Act, being the
latter law. Thus, Section 13(g) of the Tobacco Regulation Act has already been
amended. The government, by adhering to the FCTC, has agreed to implement the
provisions stated therein, including the additional measures imposed under Article 11 of
the treaty.
60. To reiterate, the FCTC entered into force in the country on 4 September
2005 and became part of the law of the land through transformation, pursuant to Article
VII, Sec. 21 of the 1987 Constitution, which states that ―No treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all
the Members of the Senate.‖ The Supreme Court has pronounced that the ratification by
the President and the concurrence of the Senate ―should be taken as a clear and
unequivocal expression of our nation's consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and responsibilities embodied thereunder.‖ 37
37
Bayan v. Zamora, G.R. Nos. 138570, 138572, 138587, 138680 & 138698, 10 October 2000.
38
71 SCRA 621 [1976].
37
63. Dean Magallona states that no further action by Congress is required to
make a treaty, such as the FCTC, part of municipal law. The FCTC itself becomes
national law through transformation, to wit:
38
Articles 7 and 11 of the FCTC
expressly sanctions the issuance of
AO 2010-0013, an administrative
measure of the competent national
health authority.
64. The core obligation of the Philippines as a party to the FCTC is to adopt a
choice of administrative, executive, legislative or other measures that will effectively
implement its obligations pursuant to Articles 7 and 11 of the FCTC. Article 7 of the
FCTC provides:
66. AO 2010-0013 expressly states that ―[t]hrough this Order, the Philippines,
through the Department, is taking a definitive step towards complying with its binding
international obligations under the FCTC‖ in observance of the principle of pacta sunt
servanda. The issuance of AO 2010-0013 is the manifestation of the Philippines’
exercise of its governmental powers as contemplated in Articles 7 and 11 of the FCTC,
through the adoption of an administrative measure to carry out its obligations
thereunder, in conjunction with the DOH’s mandate under the Consumer Act and the
Administrative Code.
39
67. In light of all of the above, a declaratory judgment from the Honorable
Court is sought to shed light on Section 13(g) of the Tobacco Regulation Act, in relation
to AO 2010-0013, the FCTC and its Guidelines.
PRAYER
Other reliefs just and equitable under the premises are likewise prayed for.
Respectfully submitted.
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Copy furnished:
EXPLANATION
A copy of the foregoing Petition was served through registered mail rather than
the preferred mode of personal service due to distance, lack of time, and lack of
sufficient messengerial services.
41