Poisoned lungs (2): text or photo warnings?

THE OTHER week, we looked at why the State finds it hard to regulate smoking (because each man is free to imperil his own health), and how the State can overcome that liberty argument (because we are not free to poison others with second-hand smoke and because the public bears the invisible costs of tobacco-related ailments). But danger alone does not justify state regulation. Otherwise, why not also ban chicharon bulaklak, crispy pata, sisig and lechon?

The answer is: High-octane cholesterol delights may be unhealthy but tobacco is addictive—and that is in fact the best argument for the public regulation of the erstwhile private act of smoking.

Remember that the law protects the smoker’s liberty. But liberty assumes that the smoker has capacity to choose knowingly and rationally. With addiction, that capacity is compromised by a chemically induced dependence upon a regular tobacco fix. There is, it turns out, no real liberty to protect in the first place. Lady Liberty had been drugged and chained all along.

In this context, the textual versus graphic warnings debate is already too generous to the tobacco lobby, because it concedes the authenticity of the smoker’s choice. The warnings assume that the smoker is not under a hypnotic spell to ache for another puff. The current debate is merely about how to send that warning.

Sadly, as with most of legal debate, the real issues—the smoker’s liberty, the manufacturer’s free speech, and our public health—are obscured by an esoteric legal point, namely, the power of the Department of Health to implement laws and treaties. Congress has authorized merely textual warnings, but an international treaty signed by the Philippines goes further and authorizes graphic warnings.

Let us look at the problem chronologically. In June 2003, the Philippine Congress passed a statute, the Tobacco Regulations Act or RA 9211. It banned smoking in all schools and health facilities, all enclosed or confined public places, and all public transport; it also banned tobacco advertising in all mass media.

That statute also requires all cigarette boxes to carry a “Government Warning.” It lists four possible warnings. “Cigarettes are Addictive.” “Tobacco Can Harm Your Children.” “Smoking Kills.” And next—this is important—it prohibits any warnings beyond that list: “No other printed warnings, except [those listed] shall be placed on cigarette packages.”

In September 2003, the Philippines signed the global anti-tobacco treaty, the Framework Convention on Tobacco Control (FCTC) sponsored by the World Health Organization (WHO). Under the 1987 Constitution, that treaty becomes “valid and effective” only when the Philippine Senate concurs. That concurrence came in April 2005. “Each party shall, in accordance with its constitution … undertake a comprehensive ban of all tobacco advertising ….” Under the FCTC, the Philippines promised to require health warnings that “may be in the form of … pictures.”

In May 2010, Health Secretary Esperanza I. Cabral issued Administrative Order 2010-13 requiring all tobacco companies to carry graphic health warnings. In June 2010, Fortune Tobacco got a Marikina court (where its factory is located and presumably has home court advantage) to stop the DoH. In September 2010, the DoH elevated the case to the Supreme Court. Last week, on Oct. 4, Commission on Human Rights Chair Etta Rosales endorsed the DoH position.

The Philippines’ largest cigarette firm, Philip Morris-Fortune Tobacco Corp., and the Philippine Tobacco Institute (the industry lobby) have insisted that the DoH has overstepped the bounds of the “no other printed warnings” command in RA 9211. That would be right if the DoH draws its power only from that statute.

The DoH has apparently invoked other powers: the wide-ranging (“plenary”) scope of the government’s police powers, the constitutional clauses on the right to health, and the department’s specific mandate to promote health. That would be well and good were it not for the express prohibition in RA 9211. “No other printed warnings …” sounds rather categorical to me.

The DoH is better off saying that it is implementing the FCTC, an international treaty made “binding and effective” by an act of the Senate. The Supreme Court has in the past held that treaties, once ratified, become part of the law of the land and, as such, are deemed to amend earlier legislative acts. Under this “latter-in-time” rule, the statute’s textual-warnings-only rule is superseded by the FCTC’s photo-warnings-too clause.

The Supreme Court has elsewhere ruled that the Executive Branch (to which the DoH belongs) may directly implement a mere executive agreement, that is to say, a kind of international agreement that is signed by the president alone and not sent to the Senate for its concurrence. If the DoH has the power to implement a “treaty” that bypassed the Senate, why should it have any less power when it deals with a full-fledged treaty ratified by the Senate? The DoH is not usurping a legislative prerogative. On the contrary, it carries out the legislative will—not just the 2003 will embodied in RA 9211 but the 2005 will expressed more recently in the Senate concurrence.

Make no mistake about it. The real issue is big bucks vs. public health, but this is all lost in the mire of legalistic minutiae. That is exactly what happened when the Court, in a similar case, restricted the printing of a warning to the effect that mother’s milk is best for babies. This game of legal hocus-pocus should not befuddle what is really at stake. When the heart has chosen, it is the task of the legal mind to find constitutionally tenable ways to follow.

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Comments to passionforreason@gmail.com –Raul Pangalangan, Philippine Daily Inquirer