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Legislation Development In Tobaccocontrol


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A presentation on how legislation on tobacco control is to be created by Hemant Goswami (Burning Brain Society)

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Legislation Development In Tobaccocontrol

  1. 1. Comprehensive Tobacco Control Legislation : key features : characteristics - structures
  2. 2. Position of Tobacco in Constitutional Scheme of things Question: Is there a right to consume tobacco Consider the fact: Is tobacco a food? Is tobacco a useful drug? Is tobacco a nutritious concoction? Is tobacco in any way useful to a human being Is tobacco a neutral consumer product? Why is it marketed/sold/traded? So can someone claim it as a right to consume tobacco – Technically NO Question: Would restricting use of tobacco violate right of life or liberty or even trading? Courts have held otherwise – There is no constitutional/fundamental right to consume tobacco – restricting tobacco does not violates anyone’s right
  3. 3. Key Ingredients of a Law” “Good Law” 1. Properly Drafted legislation 2. Balance between primary legislation and delegated legislation 3. Good CONNECT between the legislation, the Constitution and other Laws 4. Ease and clarity of enforcement of the legislation 5. Simple and Fast Procedure of Prosecution
  4. 4. Challenges in Tobacco Control Legislations Interference by “Tobacco Industry” Campaign of Misinformation & Misguidance Perception of Tobacco as a “Economic Contributor” by a section of government Dilution of legislation at drafting stage itself (The standard tobacco industry strategy) Low Priority Legislation Lack of Capacity
  5. 5. Example of challenges within DEPARTMENT OF COMMERCE RAJYA SABHA STARRED QUESTION NO 390 ANSWERED ON 23.08.2006 UNFAIR TREATMENT TO VIRGINIA TOBACCO AT WTO NEGOTIATIONS . 390. SHRI V. HANUMANTHA RAO Will the Minister of COMMERCE AND INDUSTRY be pleased to state:- (a) whether Government have noted that cash crops like Virginia tobacco are not receiving fair treatment during WTO negotiations; (b) whether it is also a fact that Free Trade Agreements between India and neighbouring countries is harming Indian tobacco farmers’ interest; (c) in what way will Government bring about equity and fairness in international trade policies to help farmers of Andhra Pradesh and Karnataka; and (d) the steps proposed to reduce such aspects of FTAs which harm Indian farmers? ANSWER MINISTER OF COMMERCE AND INDUSTRY ( SHRI KAMAL NATH ) (a): In the WTO negotiations, steps are being taken to address the structural distortions in agricultural trade caused due to subsidization and protection of agricultural products, including cash crops like Virginia tobacco. (b) to (d): Under India’s Regional Trade Arrangements (RTAs), tariff concessions on imports into India, with duty free access subject to fulfillment of value addition criteria, on tobacco have been offered only under the Indo-Sri Lanka Free Trade Agreement (FTA). Sri Lanka has retained tobacco in its negative list of imports. The Government has requested Sri Lanka to provide parity with India’s tariff concessions on tobacco. Matters relating to exports to India by Sri Lanka of cigarettes manufactured with imported tobacco have also already been raised by the Government with Sri Lanka under the review of the Indo-Sri Lanka FTA. …………………..etc ……………………….
  6. 6. Key Ingredients – Well Defined Objectives IMPORTANCE OF THE PREAMBLE:- Principles and Purpose Most laws contain a general statement of the purpose and/or principles of the law. The purpose of a law provides the framework within which the law will be implemented and interpreted. In the context of a legal challenge to a law or its regulations, this framework can play a critical role. Therefore, words should be carefully chosen and should clearly and accurately reflect the scope of issues that the government intends to regulate. Good Example: FCTC – TC Legislation of India
  7. 7. From the FCTC Preamble Preamble of FCTC The Parties to this Convention, Determined to give priority to their right to protect public health, Recognizing that the spread of the tobacco epidemic is a global problem with serious consequences for public health that calls for the widest possible international cooperation and the participation of all countries in an effective, appropriate and comprehensive international response, Reflecting the concern of the international community about the devastating worldwide health, social, economic and environmental consequences of tobacco consumption and exposure to tobacco smoke, Seriously concerned about the increase in the worldwide consumption and production of cigarettes and other tobacco products, particularly in developing countries, as well as about the burden this places on families, on the poor, and on national health systems, …………….etc…………….
  8. 8. The elements of comprehensive TC legislation Institutions and mechanisms. Legislation should create, empower and fund an authority to implement and direct the legislation. Public education. Large public education campaigns are important parts of changing public attitudes and beliefs. Advertising, promotion and sponsorship. A comprehensive ban on tobacco advertising, promotion and sponsorship is a centrepiece of an effective tobacco control programme. Taxes. Tax increases have been proven to be one of the most effective means of reducing tobacco consumption, especially among young people. Second-hand smoke. Eliminating smoking in workplaces and public places protects non-smokers from the hazards of exposure to smoke, discourages smoking initiation and promotes cessation.
  9. 9. The elements of comprehensive TC legislation Labelling and packaging. Large, clear health warnings and informational messages, using rotating messages developed by national authorities, should be required on tobacco packaging, and tobacco products should not be promoted using misleading terms. Product regulation. Regulatory authority should be given to a specialized agency, to address such issues as ingredient disclosure, permissibility of harmful constituents, additive safety, and tar and nicotine yields. Tobacco sales. Legislation should prohibit the sale of tobacco to and by the minors. Smuggling. To combat illicit trade, comprehensive legislation should include measures such as requirements for package markings or creation of a regime for tracking and tracing products through the distribution chain. Other issues. Comprehensive legislation may also include provisions to address smoking cessation, create school-based programmes, modify agricultural policies or address issues of legal liability.
  10. 10. Key Ingredients - Clarity Minimizing Ambiguity – Example (Bad): Definition of Public Places in India Section 2(l) “public place” means any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting room, amusement centres, restaurants, public offices, court buildings, educational institutions, libraries, public conveyances and the like which are visited by general public but does not include any open space; Rule 2(c) “open space” mentioned in Section 3(1) of the Act shall not include any places visited by the public such as open auditorium, stadium, railway station, bus stop and such other places;
  11. 11. Key Ingredients - Clarity Clarity in description of violations Proper and well defined action for each violation – BAD Example: Section 22. Whoever contravenes the provision of section 5 shall, on conviction, be punishable— (a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both, and (b) in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees. Clear guidelines w.r.t. sequence of legal procedures to be followed SYSTEM OF INCORPORATING DELEGATED LEGISLATION WITH SAME KIND OF OBJECTIVITY
  12. 12. Key Ingredients - Simplicity KISS Keep It Short & Simple
  13. 13. Key Ingredients - Simplicity Less is More Simple structures and standards usually lead to fewer problems than elaborate schemes or rules riddled with exceptions and qualifications. Example: People who should enforce the law – All Gazetted officers, etc. ---- Leads to confusion ---- could be more clearer like ….. The departmental heads
  14. 14. Key Ingredients - Consistency The law must have a coherent internal structure that holds together without omissions or gaps of logic. It should also be consistent with existing laws, so the tobacco control programme will blend with other programmes. For example, definitions should resemble the definitions of similar terms in existing laws, unless there are good reasons for a different approach. Example:- Tobacco Control Law in a country has almost 20 different set of rules and they change too frequently …… even the definitions of “Public Places” change every six month ….. Not a good thing
  15. 15. Key Ingredients - Familiarity It is usually advantageous to use familiar concepts and mechanisms. For example, selecting well-established enforcement procedures already used by other laws, rather than designing completely new ones, is likely to minimize the risk of unexpected problems in implementation, and may be more readily accepted by the legislative body. Example: System of penalizing and prosecution, as in case of traffic violations, is already established. Using a similar mechanism would be easily accepted.
  16. 16. Key Ingredients - Flexibility Tobacco control legislation should be flexible. Over time, changes will be needed as the impact of the legislation is evaluated, as new scientific evidence emerges, as technologies improve, and as new interventions are designed. Legislation should be written to give regulatory authorities latitude to adapt to these conditions. It is not advisable to have water-tight legislation – Whereas, at the same time care must be taken that someone is not able to dilute the basic legislation by it being too lax
  17. 17. Key Ingredients – Flexibility Expansion of scope with primary objectives The areas where there is a scope to use delegated legislation (Rules, Regulation and Notifications for Executive Control) should be clearly identified, so that the law is able to adapt (But not misused) as: – the impact of the legislation is evaluated and need for change is realised – as new scientific evidence emerges – as technologies improve – as new interventions are designed Good Example: Thailand’s 1992 Tobacco Control Law
  18. 18. Things to take care of – Ensure no conflicts with other laws – Taking care of the definitions – Should be in unison Like Public Places Manufacturer and Trader Cigarette Example: Section 278 of Indian Penal Code 1860 Making atmosphere noxious to health: - Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees.
  19. 19. Things to take care of Known loopholes - Negative + Negative - Inclusion clause in definitions of provisions so as that it appears to be exhaustive: Example – Definition of Public Places - Proviso’s and Exemption Clauses - Requirement under the law is mentioned but penal consequences for violations are missing - Requiring specific conditions, usually difficult to monitor How to avoid them Example: Indian Law: Restaurants with seating capacity of 30 Thailand: Non AC restaurants Exemption clause difficult to monitor
  20. 20. Definition of Cigarette in 1975 Indian Act
  21. 21. The Enforcement Key to success of any it’ legislation depends on it’s effective ENFORCEMENT The same is true for “Tobacco Control” laws too Unfortunately enforcement component gets very little attention and not much work has been done on enforcement of tobacco control laws