Court declares graphic health warning order null & void

MANILA, Philippines - The Parañaque City Regional Trial Court (RTC) has declared as null and void an administrative order of the Department of Health (DOH) that compels local cigarette manufacturers as well as exporters, distributors, and even small sari-sari store owners to print graphic health warnings on every cigarette pack.

In a 32-page order, RTC Judge Brigido Artemon Luna found DOH’s Administrative Order (AO) 2010-0013 “to have been made in violation of existing law, and having been issued in excess of authority…”

The case stemmed from a complaint filed by Telengtan Brothers and Sons, Inc. (doing business as La Suerte Cigar and Cigarette Factory) against the DOH.

It was former Health Secretary Esperanza Cabral who issued AO 2010-0013 last May 12, 2010.

The health department claimed that the administrative order is in compliance with the obligations of the Philippines under the World Health Organization’s (WHO) Framework Convention on Tobacco Control (FCTC)—a global treaty that seeks to regulate and reduce tobacco use.

La Suerte Cigar and Cigarette Factory said the DOH issued the AO in excess of its authority and its implementation will be tantamount to “deprivation of property.”

The cigarette maker argued that the FCTC is not self-implementing and therefore cannot be used by the DOH as basis to issue the questioned administrative order.

La Suerte also pointed out that the governing law that must be followed on matters relating to cigarette packaging is Republic Act 9211 (the Tobacco Regulation Act of 2003) which governs the packaging, use, sale, distribution and advertisement of tobacco products.

La Suerte further argued that only the Inter-Agency Committee-Tobacco (IAC-T) has the sole authority and prerogative to decide on matters on health warnings on cigarette packaging as provided under RA 9211.

The IACT-T is an inter-agency committee composed of nine government agencies and two private entities. The Department of Trade and Industry acts as Chairman while the DOH serves as Vice-chairman of the IAC-T.

The court agreed with La Suerte.

“The pivotal issue posed to this court is whether or not visual images or pictograph on government warnings in cigarette products, in addition to existing printed warnings, can be well determined and simply enforced (by the DOH) through the issuance of AO 2010-0013 under existing laws.”

“This is answered in the negative,” the court said.

The court ruled that the FCTC first needs an enabling law crafted by Congress or by an executive order before an administrative order can be issued for implementing such a “foreign covenant.” Thus, it ruled that “the arrogation of authority (by the DOH) can not create a protection in law and should not be countenanced by the court.”