Sunday Times 2
Cigarette case: Court upholds citizens’ right to health
View(s):The Petitioner in this Writ Application is the Ceylon Tobacco Company PLC. A Writ of Certiorari is sought to quash the tobacco products (labeling and packaging) Regulation No. 1 of 2012, published in Gazette Notification marked P11 of 8.8.2012. A mandate in the nature of Writ of prohibition is also sought against the three Respondents, proceeding to make regulation prescribing health warnings for tobacco products containing pictorials, graphics, images or any other non-textual content under Section 30 read with Section 34 of the National Authority on Tobacco and Alcohol Act No. 27 of 2006. Petitioner in terms of sub para (d) of the prayer to the petition has sought an interim order staying the operation of the above regulation referred to in Gazette marked P11. The learned President’s Counsel for the Petitioner on 20.2.2013 supported this application for the issuance of interim relief. However the then Hon. President of this court by his order dated 22.2.2013 refused to grant and issue an interim order as prayed for in the prayer to the petition.
Petitioner Company sought Special Leave to Appeal from the order of the Court of Appeal dated 22.2.2013. However on a perusal of the record, I find that the State, at an early stage of the above leave to appeal application gave an undertaking to the Supreme Court that the impugned regulation will not be operationalised, and as such undertaking had been extended from time to time, and on 1.4.2013 the Supreme Court ordered the status quo to be maintained. Such an order pronounced by the Supreme Court to maintain the status quo also had been extended periodically.
The Petitioner in this application is challenging the vires of regulation P11 as amended. More particularly regulation P11 as amended are ultra vires of the powers of the Minister, of the National Authority on Tobacco and Alcohol Act No. 27 of 2006 (hereinafter called NATA Act) and that Section 34(1) does not provide for pictorial health warnings. The Respondents with objections have filed Gazette Notification marked R3 and R15. By a perusal of R3 and R15 it appears that regulation (P11) shall come into operation on 1st March 2013 and regulation No. 1 of 2012 (P11) is further amended according to R15 and regulation Nos. 5, 6 & 7 amended and a new regulation 11, added to regulation (P11). As such the Petitioner Company submits that the impugned regulations seek to:
(i) Introduce mandatory pictorial health warnings to be displayed on packets of cigarettes covering 80% of the total area of a pack.
(ii) Impose a descriptor ban (use of descriptions ‘light’ ‘low’ and ‘mild’).
(iii) Print date of production on every cigarette stick.
(iv) Print of information on the relevant constituents and emissions of tobacco products, including formaldehyde and other toxic contents if any.
(v) Print health warnings and other information in a font size of not less than 10 and in all 3 languages.
The learned President’s Counsel for Petitioner raised numerous points and objections of favour for the case of the Petitioner. The main argument advanced by the learned President’s Counsel for the Petitioner and referred to inter alia, the following matters to demonstrate that the impugned subordinate legislation should be rejected since it is:
(a) Unreasonable and disproportionate to the main statute.
Justice Anil Gooneratne
(b) Impossibility of compliance (time factor) and the insertion of multiple labels and the failure to prescribe dimensions of health warnings. The submission of impossibility of compliance was an argument advanced when supporting for interim relief. Petitioner did not hesitate to put forward this submissions also when the substantive matter was argued.
(c) To require the printing of constituents and emissions. Regulation is ambiguous resulting in varying interpretations.
(d) A requirement to print the date of production and date of expiry on cigarette sticks. It is practically impossible to comply. Further Section 34 (1) require only a single label.
(e) To prescribe pictorial health warnings to cover 80% of the front and back surface areas, has by subsidiary legislation illegally subverted the statutory right of Petitioner to effectively use its intellectual property rights, recognized under the Intellectual Property Act.
(f) Petitioner not heard before publication of impugned regulations. Breach of natural justice.
(g) Exclusion of the Beedi, cigars and illicit whites from the application of the impugned regulations.
Justice Malinie Gunaratne
It is the position of the Petitioner that (a) to (f) above would make Regulation Nos. 5, 6, 7 and 8 and the added Regulation No. 11, ultra vires the provision of the NATA Act.
Learned President’s Counsel was also critical of the Respondents stance of reading Section 34 of the NATA Act (an Act itself is to give effect to WHO Framework Convention on Tobacco Control (FCTC) in harmony with FCTC obligations. FCTC does not require 80% pictorial warning (Article 11 of FCTC) FCTC require only 50% or more. Further FCTC does not use pictorial, does not impose a binding obligation to use pictures.
Another argument advanced, was that the NATA Act does not empower the Minister to make regulation generally for carrying out the intention/purpose/principles in enacting the NATA Act. The Minister is only empowered to make regulations required to be prescribed or in which regulations are authorized or required by the Act. The Minister cannot make regulations generally of any matter for carrying out the intention/purpose/principles in enacting the NATA Act. Attention of this court was drawn to several other statutes where a Minister is generally permitted, a general rule making power on all matters by the use of legislative language e.g. Condominium Property Act, Employees Provident Fund Act, Employees Trust Fund, Inland Revenue Act, etc. Petitioner argues that the Minister does not have the power to grant a blanket rule making power.
The learned Deputy Solicitor General on behalf of the Respondents submitted in his oral submissions, at the very outset to the evidence of harmful effects of tobacco smoking and invited court to, document R8, (pg. v) mainly to the material contained in the foreword. He also referred to the preamble of the WHO Framework Convention on Tobacco Control more particularly to the 3rd para which states the serious concern about the increase in the worldwide consumption and production of cigarettes. Article 8 (pg. 8 of R8) refer to scientific evidence that has unequivocally established that tobacco smoke causes death, disease and disability. He also invited us to R6, the S.C. Determination 13-22/05 on National Authority on Tobacco & Alcohol Bill especially Clause 34 which have the objective of enhancing health and the quality of life. The objectives cannot be reconciled with the harmful effects of tobacco and alcohol products and the objectives of the bill are not inconsistent with the Constitution. Learned Deputy Solicitor General referred to document R11 (pg. 5) to emphasise on the death rate as a consequence of smoking cigarettes. (inclusive of passive smoking) R12 on regional situation of tobacco control in the South East Asia Region and the figures of deaths and disease.
Learned Deputy Solicitor General in his address to court referred to packaging and labeling of tobacco products, more particularly to Article 11(1) b 11(1) (iv) of R8 to emphasise on international standards that Sri Lanka, is bound to adopt and follow in its national legislation, since our country was a signatory to the WHO Framework Convention on Tobacco Control.
Reference was also made to R4 cigarette package health warnings (pg. 7) i.e effectiveness of warnings, increase with large size, and use of pictures. R10 (para 14) refer to use of pictorials. Para 15 of R10 gives details of evidence when compared with text only health warnings and messages those with pictures.
Are more likely to be noticed;
- Are rated more effective by tobacco users;
- Are more likely to remain salient over time;
- Better communicate the health risks of tobacco use;
- Provoke more thought about the health risks of tobacco use and about cassation
- Increase motivation and intention to quit; and
- Are associated with more attempts to quit.
By a gradual process the learned Deputy Solicitor General drew the attention of this court to the preamble of the National Authority on Tobacco and Alcohol Act No. 27 of 2006. It was the position of the Respondents that the above Act of Parliament envisages a variety of matters to protect public health.
Where 80% of the pack is covered with the health warning, the practical issue that arises is whether the remaining 20% is reasonably sufficient to present and exhibit the mark or in other words to use the mark. Having considered the size of the packs and other relevant facts, I am of the view that 20% of the space is not reasonably sufficient to present and exhibit a trademark 20% of the space is not exclusively left for the trademark. It may carry other information as well. In such a space, the presentation of the trademark necessarily becomes comparatively very small.
The owner of a trademark cannot reach the consumers with his mark which is hidden in the health warning. The consumers will also not be able to see and identify the trademark properly and consequently the source of the respective goods.
They have to make extra efforts to see or identify the trademark, when they buy the goods. Such a situation will unreasonably interfere with the statutory right of the owner of the trademark to use it frustrating the whole purpose of a trademark and of the trademark law.
Moreover, the Trademark Law, while protecting the rights of the owners of the registered trademarks, attempts to safeguard the interests of the consumers as well. In a market where there are several brands or trademarks in respect of same or similar goods the protected trademarks enable the consumers to make their choice.
The consumers can identify the goods and the source of the goods that they actually want to buy through trademarks and brands without being misled to purchase the goods of wrong sources and wrong quality.
Where only 20% of the space is available for the presentation of the trademark and other information, the consumers will not be able to see the trademark properly and make their choice properly and effectively. The packs of each manufacturer may look the same where 80% of the space is covered with the health warning.
When the trademarks are not obviously and clearly presented the unscrupulous traders may even misuse such situation to mislead the consumers by selling products from wrong sources rather than selling what actually the consumer wants to buy.
This court observes that a balance need to be maintained, having considered the case of either party.
Health of each and every citizen of our country and all those living in Sri Lanka permanently or in a temporary capacity is paramount and need to be protected. On the other hand a legally established business/industry cannot be denied its legitimate rights, flowing from the laws of our country. If 80% of the space is covered by health warnings the remaining space would not be sufficient to display the manufacturers trade mark.
At the oral hearing of this application, the learned Deputy Solicitor General very correctly conveyed to this court that the authorities concerned would be agreeable and willing to allocate 75% of the space for health warnings.
However at that point of time of the hearing the learned President’s Counsel for the Petitioner Company was not prepared to act on the above ratio of 75%, as he may have thought that to accept the suggestion of learned Deputy Solicitor General would not be in the best interest of his client. However it is the view of this court that warnings/pictorial health warning should cover a space between 50% to 60%.
Thus giving the Petitioner Company at least 40% space to manage the Companies Trade Mark rights, within that space. The authorities concerned are directed to suitably amend the regulation to allocate a ratio anything between 50% to 60% for health/pictorial warnings.