CA nullifies DOH resolution barring promotion of tobacco products

MANILA, Philippines - The Court of Appeals (CA) has nullified a resolution of the Department of Health (DOH) prohibiting tobacco firms from promoting their products.

In a 21-page decision penned by Associate Justice Noel Tijam, the CA’s special 11th division granted the petition filed by Philip Morris Philippines Manufacturing Inc. (PMPMI) and intervenor Fortune Tobacco Corp.

The CA ruled that the DOH and the Bureau of Food and Drugs (BFAD) committed grave abuse of discretion in declaring that all promotions, advertisements and sponsorships of tobacco products are already prohibited starting July 1, 2008 as mandated under Republic Act 9211 (Tobacco Regulation Act of 2003).

It noted that Section 22 of RA 9211 or Ban on Advertisements prohibits all forms of tobacco advertisements in mass media, “except tobacco advertisements placed inside the premises of point-of-sale establishments.”

On the other hand, Section 23 of RA 9211 allows tobacco promotions with some restrictions such as that these should be directed to persons at least 18 years old.

All stalls, booths and other displays concerning tobacco promotions must also be limited to point-of-sale of adult only facilities.

Promotional offers, programs or events must include a recorded health warning message and others.

“The law being clear in distinguishing promotions from advertising and sponsorship, the public respondent DOH cannot hold a contrary view; much less exercise a carte blanche authority to deny petitioner’s promotional permit applications as well as those by other tobacco companies.”

“To begin with, it cannot modify, supplant or even interpret clear terms,” the appellate court ruled.

“Clearly then, the DOH should not have departed from the expressed provisions of the law. It being clear and unequivocal, it must have given its literal application and applied without interpretation,” it said.

The CA further declared that the DOH has no authority to enforce the provisions of RA 9211, citing Section 29 of the law, which states that, an Inter-Agency Committee-Tobacco (IAC-Tobacco) shall have the exclusive power and function to administer and implement the provisions of the law.

The IAC-Tobacco is chaired by the secretary of the Department of Trade and Industry with the secretary of DOH as vice chairperson.

The CA stressed that the DOH cannot arrogate to itself the authority vested to the IAC-Tobacco to administer and implement the provisions of the Tobacco Regulation Act.

“The DOH also unlawfully provided absolute prohibitions on the advertising, promotions, and sponsorships of tobacco activities without distinction and, thus, contrary to the tenets of the law.

“Indubitably, those acts translate to grave abuse of discretion amounting to lack or excess of jurisdiction necessitating the issuance of a writ of certiorari,” it said.

“Although the intention of the World Health Organization Framework Convention on Tobacco is to seek the gradual elimination of tobacco, public respondents DOH and the BFAD cannot speed up the process if, in so doing, they will deviate from or violate the provisions of the law,” the CA added.

Associate Justices Marlene-Gonzales-Sison and Jane Aurora Lantion concurred in the ruling.

Records showed that on Nov. 19, 2008, petitioner Philip Morris, through advertising agency PCN Promopro, invoked the provisions of the Consumer Act of the Philippines and applied for a sales promotion permit before BFAD for the tobacco company’s “Gear Up Promotional Activity.”

PMPMI was later verbally informed by the BFAD of an existing DOH memorandum supposedly prohibiting tobacco companies from holding any form of tobacco promotion in the country.

Meanwhile, on Nov. 28, 2008, the PMPMI, through another advertising agency, the Arc Worldwide Philippines Co., also applied for a promotional permit for its “Golden Stick Promotional Activity.”

The BFAD again denied PMPMI’s permit application for promotional activities, citing an instruction from the DOH that since July 1, 2008 all promotions, advertisements and sponsorships of tobacco products are already prohibited.

The PMPMI appealed BFAD’s denial of its permit application for promotional activities with the DOH.

In a decision dated April 30, 2009, the DOH denied PMPMI’s appeal along with all similar actions filed by other tobacco companies.

This prompted PMPMI to immediately elevate the case before the Court Appeals considering that the issue involved a legal question.

Fortune Tobacco also intervened in the case on the ground that it has a direct and immediate legal interest in the outcome of the petition, being engaged in a business similar to PMPMI.