Training Module for Legal

Issues on Tobacco Control: a

component of the “WHO
Training Course for LGU
Decision-makers and
Implementers”

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Training Module for Legal Issues on Tobacco Control: a

component of the “WHO Training Course for LGU
Decision-makers and Implementers”
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 Overview Materials
Tobacco control Presentations
Template Ordinance
Key Features of the
Goals Ordinance
Workplan Format
By the end of the session, participants will be
able to:
Format
• Distinguish the various types of policies
Interactive Lecture
relating to tobacco control that should be
developed and implemented at the local Basic research on LGUs
concerned must be done
government level; to make the topic
• Identify strategic areas of enforcement; relevant. Data on
• Respond to frequently asked questions on smoking prevalence,
legal issues; existing ordinances, and
other pertinent data must
• Discuss the key legal issues and how to be on hand.
address legal issues during enforcement;
and Guided Discussion
• Evaluate and adopt the appropriate The workshop must be
enforcement strategies. conducted based on a
guided discussion. A
workplan format must be
Requirements distributed to ensure that
facilitators are guided and
This module presumes that participants have that the participants do
been introduced to the tobacco control policies not miss out on filling up
existing: important information.

(paste list of discussed issues based on course or

program here)

Methodology

Lecture/ Presentations
Workshop (Action planning)

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Training Module for Legal Issues on Tobacco Control: a

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 Part 1

Tobacco Control Issues

Tobacco control affects not only the health of the government’s

constituency and workers; it also has an impact on the government’s
economic performance and contributes to the key cornerstone of good
governance, public ethics.

In tobacco control, the health issue is addressed not only through health
service delivery programs such as smoking cessation or health promotion
activities aimed at reducing the incidence and prevalence of non-
communicable diseases; but equally, if not more importantly, through the
regulation of the tobacco product, including its marketing, promotion,
price, distribution, trade, and usage in a manner that exposes non-smokers
to second hand smoke.

Economic Impact

A Metro Manila survey revealed that one in five cases of heart attacks can
be attributed to exposure to tobacco smoke.i Long standing studies have
established that exposure to secondhand smoke for more than 21 hours per
week can increase one’s risk of a heart attack by as much as 62 percent.

Tobacco-related deaths and diseases happen during some of the most

productive period of a person’s life and thus, adversely impact the
economy through productivity losses (e.g., increased absences and reduced
income as far as the employee is concerned; and reduced manpower and
resource as far as the employer is concerned). In case of the indigent
population, chronic diseases, mostly requiring extensive care and
medication, take a toll on the government’s health budget through the use
of public health facilities, providers, and medication.

In 2006, a study pegged the economic costs of 4 common smoking-related

diseases (cerebro-vascular diseases, coronary artery diseases, chronic
obstructive pulmonary diseases and lung cancer), including expenses for
health care and costs of productivity losses from these diseases, range from
PHP 218 billion to PHP 461 billion.ii This amounts to a per capita cost of
PHP 2,319 to PHP 4,425.iii

(insert estimate of costs per person suffering from tobacco-related diseases,

if available and relate to the participant’s City/ Municipality’s prevalence
or rate of heart attack, stroke, etc admissions)

Tobacco-related harms put a strain on the national and local budgets. On

the other hand, the burden on the household budget caused by tobacco
leads to an unsatisfied constituency. At the national level, an iota of the
economic burden (less than 1%)iv is recovered through excise taxes while
at the local level, few local governments have maximized potential
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 revenues that can be generated from tobacco control. This may include
licensing fees, inspection fees, business permit charges, penalties for
violations of tobacco control laws such as those collected by Makati,
Manila, Davao; special allocation from excise taxes on tobacco products
such as those received by tobacco producing provinces; and other forms of
special taxes (such as taxes charged based on polluters pay principle, or
charges to contribute to a special fund for enforcement).

Cost-effectiveness

Together, the whole gamut of tobacco control measures, contribute to

reducing the number of premature deaths and potentially leads to
government savings that can be allotted to other health concerns. The City
of New York has illustrated how various tobacco control measures have
effectively contributed to saving a number of lives in the city in a period of
5-10 years.

Like all tobacco control initiatives, the policymakers of NYC have also
expended resources to fight the various common challenges that tobacco
industry posed including legal challenges. And yet, NYC finds that the
savings from preventing tobacco-related deaths far outweigh the expenses
of developing and enforcing policies on tobacco control.

Source: Powerpoint presentation of Dr. Thomas Frieden, New York City (currently head
of CDC), presented at Johns Hopkins University, Bloomberg School of Public Health,
August 2008.

The NYC experience points out that increasing tobacco taxes proved to be
the single most effective and cost-effective measure in reducing smoking
prevalence in the city. In 2008, an increase of 1.25 USD of excise tax per
pack of cigarettes led to a decline in total sales of 15.2%, and generated
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 377.4 million USD,vin addition to savings from government funded health
expenditures. It bears stressing that strong enforcement of policies on
smoke-free public places has also resulted in net gains for the city. Tourism
traffic has continued to increase and revenues from bars and restaurants
have generally increased. Studies show that restaurant income generally
increased with the removal of smoking areas because customers tend to
order more food. Contrary to fears propagated by the tobacco industry, the
hospitality industry did not die down and, in fact, continued to prosper.
Experience in Makati and Davao cities reflected the same result. For
instance, Makati City’s revenues from smoke free enforcement increased
due to the imposition of inspection fees to ensure compliance with
smoking area restrictions, and penalties collected from non-compliance.
Although some restaurants have decided to close down in order to avoid
compliance with smoking restrictions, many more have opened up in their
place and the restaurant industry in Makati have registered a net growth.vi

Popularity

Not only has tobacco control proven to be cost-effective, it has also proven
to be very popular among the constituency where it has been enforced as
well as elsewhere in the country and in the world. Post-intervention
surveys done after strong smoke-free campaigns in various parts of the
world show that the population is generally happy with a smoke-free
policy and a strong implementation of such a policy.

In the Philippines, a Metro Manila survey in 2009 showed that over 90%
of Metro Manilans believe that there should be no smoking in public
places and that children should not be exposed to second hand smoke.viiIn
another survey done in Metro Manila sponsored by the World Lung
Foundation and the DOH, a reported 52% Metro Manilans were exposed
to secondhand smoke every day in workplaces, restaurants and other
public places.The study further revealed that while most nonsmokers
reported that they get upset when they are exposed to secondhand smoke,
only 8% actually complained. viii The statistics reflect the non-
confrontational nature of Filipinos, a circumstance which makes strong
government enforcement of smoke-free policies necessary to promote the
comfort and convenience of the constituents. To illustrate, when the legal
requirement for a commercial establishment to put up a no smoking sign is
well-enforced, a patron would be less likely to light up a cigarette and a
waiter or a non-smoking patron will find it easier to point to the no
smoking sign instead of arguing with the patron.

The popularity of the smoke free measure also applies to general

acceptance of other areas of tobacco control. For instance, a 2007 survey
by the PCCP showed that over 90% of the Filipinos believe that graphic
warnings are better at conveying messages than text warnings. Surveys
done in many parts of the world also show that majority of constituents
generally approve of policies that increase excise taxes on cigarettes.

Leaders of smoke free cities are often lauded by the public health
community for their immense leadership. In light of the persistence of the
tobacco industry in promoting their interests, the ability to resist tobacco
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 industry interference in the setting and implementation of tobacco control
measures is a true reflection of strong political will.

Good Governance and Public Ethics

Good tobacco control policies are linked to good governance indicators

particularly, transparency and accountability because of a specific
provision in the WHO FCTC which, for the first time in treaty history,
had singled out the tobacco industry as a threat to public health measures.

Internal documents of the tobacco industry that were released in the late
90s following a settlement of tobacco litigation in Minnesota revealed how
tobacco transnationals have deliberately manipulated policy processes
both in the national and international level to undermine tobacco control
measures. Consequently, the WHO FCTC obliged governments to protect
public health policies from commercial and vested interests of the tobacco
industry. Governments are expected to comply with the FCTC provisions
through both national and subnational (local) measures.

In elaborating this obligation, the Guidelines for the Implementation of

Article 5.3 (5.3 Guidelines) recommends that governments should not
receive any contribution, support, legal advice from or allow the
perception of partnership with the tobacco industry and its representatives,
whether directly or indirectly. Citing the International Code of Conduct
for Public Officials, the guidelines further provided that public officials
must act transparently in all its dealings with the tobacco industry, where
such interaction is strictly necessary for regulation purposes. In addition,
the government must require the tobacco industry to be transparent or to
disclose information to support tobacco control measures.

Consistent with this obligation, on June 2010, the Civil Service

Commission and the Department of Health implemented a Joint
Memorandum Circular (JMC) in order to protect the bureaucracy from
tobacco industry interference. The adoption of the JMC is consistent with
the obligation under Article 5.3 of the FCTC.

The JMC recognizes that the tobacco industry is the single biggest obstacle
to the effective implementation of public health measures. The industry
sells a product that kills half of its consumers, and uses its power to
promote its interests, at the expense of public health. It aims to protect the
government employees and the public from the strategies of the tobacco
industry. Tobacco industry interference refers to a broad array of tactics
and strategies used by the tobacco industry to interfere with the setting and
implementing of tobacco control measures.

Transparency and Accountability

More significantly, the JMC aims to promote transparency and

accountability, which are basic governance values and in line with the core
value of the CSC to promote integrity in public service. Through the JMC,
the public can hold the government responsible to protect public health
policies from the interference of the tobacco industry.

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 The JMC covers all government officials and employees, including those
working in local governments, under the jurisdiction of the CSC. It
prohibits unnecessary interaction with the tobacco industry,ix the giving of
preferential treatment to the tobacco industry, the acceptance of gifts,
donations and sponsorship from the tobacco industry, having financial or
material interest in any transaction involving the tobacco industry
requiring the approval of their office. It further requires officials and
employees to avoid conflicts of interest with the tobacco industry.
According to the JMC, heads of agencies are required to inform the
officials and employees about the policy against tobacco industry
interference, amend their Codes of Conduct and incorporate the JMC
rules.

The JMC issuance is a milestone for the Philippines which had been
tagged by a scholar as “one of the slowest countries to take tobacco
control seriously,”x in view of the weaknesses of the Tobacco Regulation
Act including the presence of the tobacco industry in the IACT. The JMC
sets the stage for exposing the tobacco companies for what they are in
spite of their extensive CSR and PR work. It lays down an obvious fact
ignored by many government beneficiaries of tobacco CSR that the
tobacco companies’ primary interest is to profit from selling uniquely
lethal products, and this creates an innate conflict of interest between their
interest and any public health or welfare policies promoted by the
government.

Corruption

Association with the tobacco industry has also been linked with
corruption. In a research paper based on tobacco industry’s internal
documents, Philip Morris memos were used to conclude that it had taken
advantage of corruption in the Philippines and considers the Philippines as
having an unrestricted operating environment for tobacco companies, ripe
for corruption and exploitation. In other studies, the level of tobacco
smuggling in the country has been linked with the level of corruption and
a direct correlation had been observed. Scholars have also documented the
complicity of the tobacco industry in major smuggling operations. In
Europe, Philip Morris has agreed to pay 1.25 billion dollars as settlement
to a legal court case accusing Philip Morris of encouraging and profiting
from smuggling operations within the European Union.

It is in the context of conflict of interests, transparency, accountability and

reputation for corruption that tobacco industry relationships can serve as
an indicator of good governance. Considering how the tobacco companies
systematically engage with policymakers to promote their interests,
avoiding interactions with the tobacco industry, especially while in the
process of tobacco control policy development and implementation, and
making such interactions public and transparent when strictly necessary
for regulation, can be a good test of integrity for public officials.

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 Finally, developing codes of conduct for public officials in light of the
JMC is a necessary step in raising awareness about the nefarious motives
of the tobacco industry, particularly because there is relatively little
appreciation of the conflict of interest principle in the country. In contrast,
in countries with strong tobacco control policies, like Australia and
Thailand, for instance, the tobacco companies have a reputation of being
one of the least trustworthy.Hence, even before Article 5.3 Guidelines
were adopted, there is effectively an unwritten code on avoiding
interactions with the tobacco industry because their actions have been
viewed with much suspicion by the general public.

Legal Challenge

As with the many cities that have enforced strong tobacco control
measures, including those in the Philippines, the tobacco industry have
consistently raised legal challenges to discourage these efforts. Some issues
and measures are more contentious than others. More often than not, the
same arguments are recycled in different jurisdictions even though the
tobacco control measure and its legal basis has already been successfully
upheld in another jurisdiction.

In most cases, the tobacco industry does not challenge local government
issuances in court. In fact, the court cases that the tobacco industry has
filed so far had involved the national government, particularly the DOH,
not in an adversarial proceeding, but in a proceeding to seek interpretation
from the courts.

Relevant Pending Cases

It bears stressing that existing cases involving the national government do

not affect implementation of national or local tobacco control measures.
For instance, the petition for declaratory relief on Section 22 of RA9211
(advertising ban) was not accompanied with a TRO, hence, the duty to
enforce the law remains. The case is currently on appeal with the higher
courts. Another example is the petition for declaratory relief on the
Administrative Order 13-2010 of the DOH on graphic health warnings
and misleading descriptors, a TRO on the AO has been issued in Marikina
but there is no legal rationale why other jurisdictions should follow a
regional court’s decision. Hence, unless a TRO has been secured from the
higher courts, such as the Court of Appeals or the Supreme Court, other
jurisdictions or local governments can still assist in facilitating the
enforcement of the AO. There is no legal barrier for a local government to
issue its own ordinance to require graphic warnings on cigarette packs sold
in its jurisdiction.

With the sole exception of a case involving ambiguity in enforcement of

smoke free ordinances in a known hotel in Davao circa early 2000, there
are no reported court cases filed against a local government in relation to
the issuance of ordinance or for a variety of enforcement efforts done by
various LGUs including:

Policy Development
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 a. Makati ordinance banning all indoor smoking (Developed in early
2000s prior to the scientific finding that there is no safe level of
exposure to second hand smoke and the revelations on the harmful
effects of indoor designated smoking rooms;xi the ordinance provides
for strict regulation and limitations, including significant fees, on
designated smoking areas);
b. Davao ordinance banning smoking in all public places that has so
much as a roof;
c. Amlan province banning smoking in all indoor public places consistent
with a 100% Smoke Free environment in accordance with FCTC
Article 8 Guidelines;
d. LTFRB Memo requiring the placement of signages and imposition of
duties on the franchise holder;
e. CSC Memo banning smoking in all government premises and
buildings with strict requirements for designating one outdoor smoking
area per building that is 10meters away from where people congregate;
f. CHED Memo requiring all concerned not to accept any offer of
donation or partnership from the tobacco industry.

Policy Implementation

a. Mandaluyong enforcement team removing all outdoor umbrellas with

tobacco company or brand advertising;
b. Manila enforcement team removing all signages and billboards of
tobacco product advertising that are placed on top of sari-sari stores;
c. Manila enforcement team seizing cigarette packs within the 100-meter
perimeter of schools, particularly around the University Belt;
d. Silang’s deputized enforcement team removing all signages and
billboards of tobacco product advertising; and
e. Makati and Davao’s apprehension and fine of smokers for violating the
no-smoking law.

This is not to say that these tobacco control efforts have succeeded
without interference from the tobacco industry. In most cases, the
tobacco industry did not miss the opportunity to submit their position
paper, or otherwise send their messages through various messengers
including prominent legislators from Congress.

In local governments where the political will of leaders is strong,

policy makers and enforcement officials remain undaunted, and the
tobacco control efforts have continued without further interference
from the tobacco industry.

Part 2:
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 Legal Authority under the Local Government Code

Duty and Power to Promote General Welfare

Each LGU has the duty to promote general welfare by exercising a broad
scope of powers, not only those expressly granted but also those implied,
necessary, appropriate, or incidental for its efficient and effective governance.xii

The scope of the general welfare to be promoted is equally broad and includes, as
particularly relevant for tobacco control, among other things, the promotion of
health and safety, improving public morals, and preserving the comfort and
convenience of their inhabitants.xiii

By virtue of such provision, local government units have enacted ordinances

against smoking. The city ordinances enacted are for the general welfare of the
populace of a given local government unit, and it operates only within the limits
of the local government unit concerned.

The power of the LGU to issue ordinances and other rules to promote public
health in relation to tobacco control cannot be underestimated. Consistent with
the principle of devolution, such provision of power is to be liberally construed in
favor of the LGU. The existence of such powers, including implied or necessary
powers, shall be interpreted in favor of the LGU concerned in case of doubt.xiv
Particularly, the “general welfare provisions in this Code shall be liberally
interpreted to give more powers to local government units in accelerating economic
development and upgrading the quality of life for the people in the community.”xv

Relationship with Constitutional Right to Health and Treaty Law

In the development of tobacco control measures pursuant to the general

welfare clause, an LGU, as an instrumentality of the state is fulfilling the
state’s duty to promote and protect the Constitutional right to health. The
tobacco control policies issued by the LGU is critical in fulfilling the state’s
obligation to the WHO FCTC.xvi Hence, LGUs must be mindful of the
international standards and progress when setting and implementing
policies related to tobacco control.

The Guidelines for the Implementation of the FCTC provide information

on widely accepted scientific findings and best practices in tobacco control
policy development and enforcement. For instance, Article 8 Guidelines
brings a new perspective to designated smoking areas. In the past,
designating indoor smoking areas have seemed sufficient. But after the
Surgeon General’s Report revealed the link between second hand smoke
and certain diseases / conditions including causing heart attack; the
international public health community adopted the finding that there is “no
safe level of exposure to second hand smoke” and this is embodied in the
Article 8 Guidelines which promoted 100% Smoke Free indoors, essentially
discouraging all forms of indoor smoking areas.

There are many evidence-based measures found in various Guidelines.

Guidance from such issuance is intended to assist government in fulfilling
FCTC obligations and can be as specific as recommendations to remove
ashtrays and post no smoking signages or defining specific forms of
advertising that should be banned.
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 Details on how the LGUs can utilize these guidelines to develop model
templates will be discussed later.

At the end of the lecture, a Model Ordinance Template will be

distributedfollowed by a discussion of the key elements / features of tobacco
control legislation based on the Guidelines.

Duty to Enforce All Laws

The mayors of cities and municipalities share a common duty, explicit in

the Local Government Code, to enforce all laws and ordinances relative to
the governance of the city/ municipality andxvii exercise such other powers
and perform such other duties and functions as may be prescribed by law
or ordinance.xviiixix

In order to enforce national laws and local ordinances, the mayor shall
develop and implement all approved policies, programs, projects, services
and activities of the LGU and:

(i) Ensure that the acts of the city's component barangays and of its
officials and employees are within the scope of their prescribed powers,
duties and functions;

(ii) Call conventions, conferences, seminars, or meetings of any elective

and appointive officials of the city, including provincial officials and
national officials and employees stationed in or assigned to the city, at
such time and place and on such subject as he may deem important for
the promotion of the general welfare of the local government unit and
its inhabitants;

(iii) Issue such executive orders for the faithful and appropriate
enforcement and execution of laws and ordinances;…..

(v) Act as the deputized representative of the National Police

Commission, formulate the peace and order plan of the city and upon
its approval, implement the same; and as such exercise general and
operational control and supervision over the local police forces in the
city, in accordance with R.A. No. 6975;

(vi) Call upon the appropriate law enforcement agencies to suppress

disorder, riot, lawless violence, rebellion or sedition, or to apprehend
violators of the law when public interest so requires and the city
police forces are inadequate to cope with the situation or the violators;

5) Exercise such other powers and perform such other duties and
functions as may be prescribed by law or ordinance.( emphasis
supplied)

Role in National Law Enforcement

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 RA9211 prescribes certain duties and functions particularly to local
officials, to wit, Section 2 Rule 2 of the IRR provides:

Section 2. Authority of city, municipal and police officials to initiate action. – To

effectively implement the provisions of the Act and these Rules pertaining to the
smoking ban, access restrictions, point-of-sale establishments, and cinema and
outdoor advertising, the concerned city and municipal mayors and building
officials and members of the Philippine National Police are authorized to take
the necessary steps such as the institution of criminal proceedings against
violators of the provisions of the Act, as well as to cause the removal of non-
compliant cinema and outdoor advertising, and tobacco-related self-service
facilities.

A more specific duty to enforce specific RA9211 provisions are enlisted in

Section 1 Rule V of the IRR provides:

Rule V – Restrictions on Outdoor Advertising

Section 1. Restricted zone for outdoor advertisements. – Outdoor advertisements of

tobacco products shall not be placed on billboards, wall murals, or transport stops or
stations which are within one hundred (100) meters from any point of the perimeter
of a school, public playground or other facility frequented particularly by persons
below eighteen (18) years of age.
Section 2. Official to determine compliance to restricted zone. – The concerned city
or municipal building official shall be responsible for determining whether outdoor
advertisements comply with the preceding section. Any outdoor advertisement
which was determined by the concerned city or municipal building official to be not
in conformity with the requirement of the preceding section shall be disposed of in
the manner provided in Section 3 of this Rule.
Section 3. Disposition of outdoor advertisements within the restricted zone. – The
disposition of all outdoor advertisements of tobacco products which were determined
by the concerned city or municipal building official to be within the one hundred
(100) meter radius of the perimeter of a school, public playground or other facility
frequented particularly by persons below eighteen (18) years of age shall be governed
by the following guidelines:

3.1. The removal of the non-compliant outdoor advertisement shall be done only
after due notice by the concerned city or municipal building official to the owner or
administrator of the building, other structure or land where said outdoor
advertisement is located.
3.2. The owner or administrator of the building, other structure or land where the non-
compliant outdoor advertisement is located shall be responsible for the removal or to
cause the removal of said non-compliant outdoor advertising within three (3) days
from receipt of notice from the concerned city or municipal building official. The
final disposition of the outdoor advertising so removed shall be subject to the terms
and conditions stipulated in the lease contract for the advertising space between the
owner or administrator of the advertising space and the advertiser or the advertising
agency, as the case may be.

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 Section 4. Maximum size of outdoor advertisements. – Outdoor advertisements shall not,
either individually or when placed in deliberate combination with other outdoor
tobacco advertising, exceed seventy (70) square meters in total size.
Section 5. Official to Determine Compliance to Maximum Size. – The concerned city or
municipal building official shall be responsible for determining whether outdoor
advertisements comply with the preceding section. Any outdoor advertisement which
was determined by the concerned city or municipal building official to be not in
conformity with the requirement of the preceding section shall be disposed of in the
same manner provided in Section 3 of this Rule

In no other part of RA 9211 did the law prescribe a more specific duty. As
far as all the other provisions of RA9211 are concerned (Smoke Ban, Ad
Ban, Health Warnings, Programs), the role of the local official is to take
necessary steps to ensure compliance with the law. It is for this reasons that
in some cases, LGUs have decided to form task forces to undertake
enforcement of RA9211 with some level of specificity as to tasks such as
inspection, issuance of warning letters, etc.
Several LCEs have issued Executive Orders in order to facilitate the
mobilization of the task force. The City of Davao and Legazpi, for
instance, have utilized the EO and task force formula to jumpstart their
tobacco control drive.
Some cities have managed to utilize existing orders, resources and task
forces to implement existing RA9211 and ordinances on tobacco control.
To illustrate, in Pasig City which has a very strong environmental unit, it is
the city’s environmental department which lead a strong smoke free
campaign requiring all establishments and buildings to post smoke free
signages and reminding all businesses to comply with RA9211 through the
business permit and licensing unit.
A few cities have started monitoring compliance in commercial
establishments with specific provisions such as selling within the 100-meter
perimeter of the schools through inspections conducted by city officials or
deputized civilian police.

Conflict between National and Local Laws

Should there be a seeming conflict between the provisions of a national law

and a local ordinance, such “conflict” must be “convincingly and
unambiguously demonstrated.” The two laws must be shown to be “clearly
repugnant and patently inconsistent that they cannot co-exist.” xx An
inconsistency that fails to meet this threshold requirement will not warrant
that the ordinance is invalid, being in contravention of a national law. Take,
for instance, the case of Designated Smoking Areas (DSAs). RA 9211, Sec.6
provides that DSAs shall be established in places where smoking is not
absolutely prohibited (as provided in Sec.5 of the law). Such areas “may
include a DSA within [a] building, which may be in an open space or
separate area with proper ventilation, but shall not be located within the
same room that has been designated as a non-smoking area.” The
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 obligatory prestation RA 9211 creates is only insofar as the establishment of
DSAs in areas where smoking is not absolutely prohibited. However, the
law itself leaves open the choice as to where such DSAs may be established.
As regards this choice, the language the law employs is permissive (i.e.
“may”). Accordingly, a local ordinance which provides that DSAs should
only be established in open spaces does not “conflict” with RA 9211, in as
much as the national law itself permits local authorities to make the choice
where DSAs may be established. Hence, there is no “repugnance” or
“irreconcilable conflict” to speak of. The law and the local ordinance
providing that DSAs may be established only in open spaces “may co-
exist.” Notably, the factual milieu of jurisprudence cited by the tobacco
industry in support of their argument that ordinances which so provide are
invalid for being in contravention of national law are not in point. In all
such cases, the ordinances invalidated by the Supreme Court on the ground
of repugnance to national law were ordinances which allowed what the
heart of the national law expressly disallowed – hence, an irreconcilable
inconsistency. The same is not present here. Further, it is a basic rule in
statutory construction that conflict must not be read into laws. In the face of
an apparent conflict, it is dogmatic that laws must be reconciled and
harmonized. At the very least, efforts to do so must first be exerted.xxi

Potential Resources for Enforcement

Under the Local Government Code, the LGU may impose reasonable
charges or fees for services rendered. xxii This can be helpful for the
implementation of provisions requiring monitoring of establishments such
as smoke ban provisions and advertising bans. In Makati, an establishment
wishing to put up a smoking area needs to submit an application for a
permit with the city and pay a fee depending on the size of the smoking
area. In order to sustain Makati enforcement unit’s efforts in monitoring
compliance with the requirements of the permit, the fee is renewed
annually.

Similar charges and mechanisms can be imposed to support enforcement

initiatives of the city for monitoring advertising ban violations and
compliance with smoke free policies such as the placing of prominent
signages and removal of ashtrays.

The barangay has a specific power under the LGC to levy fees and charges
relating to the billboards, signboards and other outdoor advertisements.xxiii
Most LGUs in the Metro Manila charge a fee for any signage and billboard
depending on the size and the length of time it will be installed.

Part 3

Frequently Asked Questions relating to 100% Smoke Free Policies:

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 1. Why is the Philippines bound to comply with the WHO FCTC?

The WHO FCTC obligates Parties to, among others, take effective steps in
providing protection from exposure to tobacco smoke, comprehensively
ban all forms of advertising and to protect the public health policies from
the commercial and vested interests of the tobacco industry.

These norms are binding on the Philippines, in as much as the FCTC

forms part of the law of the land, pursuant to the Doctrine of
Transformation under Article VII, Section 21 of the 1987 Constitution. A
norm of international law arising from a Convention may be
“transformed” into municipal (i.e. Philippine) law by the use of
appropriate constitutional machinery, either through an Act of Congress
or through an Act of Parliament.xxiv In the Philippines, the method by
which conventional international law is transformed into municipal law is
laid down in Article VII, Section 21 of the 1987 Constitution, which reads:

“No treaty or international agreement shall be valid unless

concurred in by at least two-thirds of all the Members of the
Senate.”

Once the Convention, as signed and ratified by the Executive, is concurred

in by at least two-thirds of all the Members of the Senate, the Convention
is “transformed” into municipal law. For all intents and purposes
thereafter, the Convention shall be deemed as if it was legislated by our
Legislature.

The Philippines signed the FCTC on 23 September 2003, through then

Secretary of Health Manuel Dayrit. On 22 February 2005, the Senate of
the Philippines registered its concurrence in the ratification of the FCTC,
in accordance with Article VII, Section 21 of the 1987 Constitution.
Following the Doctrine of Transformation, the FCTC now forms part of
the law of the land. The FCTC thus creates binding, enforceable
obligations with which the Philippines is duty-bound to comply following
the principle of pactasuntcervanda– a state must comply with its obligations
in good faith.

2. Is an ordinance that provides greater restrictions than RA 9211 – but

compliant with other national laws – a valid ordinance?

Yes. An LGU may enact an ordinance compliant with the FCTC – but
provides greater restrictions than RA 9211 - in the exercise of its power
under the general welfare clause. In such capacity, an LGU may enact
legislation that is more responsive to the LGU’s and its constituencies’
needs. Municipal corporations are created based on “the idea that the needs
of the localities for which they are organized, 'by reason of the density of population,
or other circumstances, are more extensive and urgent than those of the general
public in the same particular”xxv

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 Accordingly, LGUs can enact a local ordinance that is more restrictive
than a national law because it seems such restriction to be of particular
necessity in their respective locality than in the state at large.

In addition to the general welfare clause, the enactment of smoke-free

legislation, providing greater restrictions on tobacco use and consumption
finds express bases in law: (1) the FCTC, which forms part of the law of
the law, as discussed above; and (2) Section 24 of the Clean Air Act,
which specifically mandates LGUs to implement the prohibition against
smoking inside a public building or an enclosed public place.

It bears stressing that the Clean Air Act cannot be declared as having been
impliedly repealed by the RA 9211, a latter law, pursuant to the well-
entrenched rule in statutory construction that implied repeals are frowned
upon, and are allowed only in extreme instances where the repugnance
and irreconcilable inconsistency between the 2 provisions in question are
convincingly and unambiguously demonstrated.xxvi Absent such showing,
the said provision of the Clean Air Act continues to be in full force and
effect, and serve as basis for local smoke-free legislations by LGUs.
Other Commonly Used Legal Arguments by the Tobacco Industryxxvii

Policy Legal Legal

Arguments Principles
Ordinances Smoke free legislation There is no such thing as
prohibiting violates the rights of a “right to smoke.” The
smoking in smokers to liberty, in as fundamental law
public places, or much as it prevents them certainly does not
otherwise from doing personal acts guarantee any such right.
regulating where as they please. Further, in view of the
smoking areas unimpeachable science
may be that tobacco use causes
established. harm and that no amount
of exposure to tobacco
smoke is ever safe, the act
of smoking is and should
properly be made the
subject of regulation.
Being a slow form of
suicide, there can be no
recognition of such right
to smoke, particularly in
jurisdictions where
suicide is penalized. In
civil law jurisdictions,
provision is also made
disallowing acts that
injures others, even when
such acts are done in the
exercise of a lawful right
(i.e. torts and quasi-
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Smoke-free legislation
violates the right to
privacy of smokers, in as
much as it unduly restricts
the use of a smoker’s own
property.
Such policy is oppressive
to tobacco users. It
victimizes and stigmatizes
them for acts that are well
within their rights, since
tobacco use is not illegal.
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delicts). Thus, ordinances
that seek to preclude the
evils of smoking are
valid, in as much as they
are rationally related to a
legitimate government
objective of protecting
public health. Such action
falls within the plenary
scope the state’s police
power.
Not all fundamental laws
reflect a right to privacy.
In those that do, like in
the US, no court has ever
upheld a right to smoke
as part of a right to
privacy. This argument is
premised on the notion
that the owner has the
right to determine what
goes on inside his
property. However, if the
property is open to the
public, then other public
interests prevail over any
possible right over the use
of private property. In
fact, even the private
home is regulated in
terms of building codes,
plumbing codes and other
safety regulations. Cars
may also be considered
private but not using
seatbelts are punishable
in many jurisdictions.
The fact that a product is
not illegal does not give
rise to a “fundamental”
right to consume it. Even
if a product may be
consumed, restrictions on
potentially harmful but
“legal” products, like
pesticides, are reasonable
and are, in fact,
commonplace.
17
 Hotel and restaurant First, numerous studies
owners have claimed that have shown that even
smoke-free legislations with a slight initial dip in
diminishes the value of a earnings, most
business or a business establishments recover
license, and thus amounts economically despite, or
to “taking” of property perhaps even because of
without due cause and smoking bans. Second, a
without just license grants no
compensation. fundamental right but a
mere privilege to do
business. Thus, it may be
revoked for failure to
obey preconditions
attached to its issuance.

Smoke free bans violate Smokers do not

the equal protection constitute a class that
clause. qualifies for protection
under this clause. To
receive protection under
the equal protection
clause,
courts have required an
immutable characteristic
determined solely by
accident of birth. One is
not born a smoker and
one can stop smoking.
Thus, smokers do not
constitute a class that can
be distinguished from
other classes of people.

On the contrary, an
exemption which do not
relate to the legitimate
objective of protecting
public health and serves
only to weaken the
issuance may, in fact, be
struck down on the basis
of equal protection.203

In any case, the right to

life, which tobacco
threatens, as shown by
innumerable studies,
trumps any purported
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Local government units
are bereft of authority to
duly enact a smoke-free
regulation within their
respective territorial
jurisdiction.
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right to privacy, to
property and the
operation of a business or
even a purported right to
equal protection and due
process.
In the Philippines, LGUs
are vested with an all-
encompassing power to
protect its constituents, as
embodied in the general
welfare clause of the
Local Government Code.
Thus, LGUs are
empowered to enact
restrictions to behavior in
order to protect the
general welfare of its
citizens. Paramount
among these rights are
the right to health and
life, enshrined in the 1987
Constitution.
19
 Part 4

The template ordinance is introduced and discussed.

Part 5

Workplan Discussion

The participants can be divided into small groups of around 4-7 people for a
discussion on how they can agree to work towards tobacco control policy
development and implementation. Reminding them of best practices discussed
above can help stimulate discussions. Facilitators must be mindful that there may
be many possibilities but the participants should be able to think about strategic
measures that can deliver results at the soonest possible time, applying the low-
hanging fruit principle.

More importantly, the participants should be able to work as a team to achieve the
targets/ focus area.

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 i
Bellew, B. et al, WLF-DOH survey, 2010  
ii
M.V.F. Leonen, D. Sy, I. Reyes, & J. Latuja, HealthJustice Philippines, Taxing Health Risks, 8
(2010), citing World Health Organization, Department of Health, University of the Philippines Manila &
Philippine College of Medical Researchers Foundation, Inc., Tobacco and poverty in the Philippines (2006),
figures adjusted to 2010 levels.  
iii
Figure divided by 94 million - projected population of the Philippines in 2010, as per the National
Statistics Office.  
iv
Based on author’s computation from information provided in Taxing Health Risks, supra note ii.  
v
Tobacco Free Kids, Raising Cigarette Taxes Always Increases State Revenues (and Always Reduces
Smoking), 1, available at http://www.tobaccofreekids.org/ research/factsheets/pdf/0098.pdf, citing
Orzechowski& Walker, Tax Burden on Tobacco, U.S. Alcohol and Tobacco Tax and Trade Bureau  
vi
According to City Health Officials and records of the City Health Office of Makati, as shared in
various tobacco control meetings from 2008-2010, strong smoke free enforcement has generated net
income for the city.  
vii
2010 study conducted by DOH  
viii
Bellew, B. et al, supra note i.  
ix
If interaction with the tobacco industry is strictly necessary for its effective regulation, transparency
must be observed and the interaction should be carried out in such a way to avoid the creation of any
perception of real or potential partnership or cooperation.
x
K. Alechnowicz& S. Chapman, The Philippine Tobacco Industry: The Strongest Tobacco Lobby in
Asia, 13 TobControl 71, 2004.  
xi
Surgeon General’s report 2005  
xii
The General Welfare Clause of the Local Government Code states: “Every local government unit
shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare…”
xiii
“Within their respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and preserve the comfort and convenience of their
inhabitants.”
xiv
SEC. 5.Rules of Interpretation. - In the interpretation of the provisions of this Code, the following rules shall
apply:
(a)Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of
doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit.
Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit
concerned;
xv
(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local
government units in accelerating economic development and upgrading the quality of life for the people in the
community;  
xvi
Article 7 Non-price measures to reduce the demand for tobacco
The Parties recognize that comprehensive non-price measures are an effective and important means
of reducing tobacco consumption. Each Party shall adopt and implement effective legislative, executive,
administrative or other measures necessary to implement its obligations pursuant to Articles 8 to 13 and
shall cooperate, as appropriate, with each other directly or through competent international bodies with a
view to their implementation. The Conference of the Parties shall propose appropriate guidelines for the
implementation of the provisions of these Articles.
xvii
Enforce all laws and ordinances relative to the governance of the municipality and the exercise of
its corporate powers provided for under Section 22 of this Code, implement all approved policies,
programs, projects, services and activities of the municipality and, in addition to the foregoing, shall:
Ensure that the acts of the municipality's component barangays and of its officials and employees are
within the scope of their prescribed powers, functions, duties and responsibilities;
(ii) Call conventions, conferences, seminars or meetings of any elective and appointive officials of
the municipality, including provincial officials and national officials and employees stationed in or
assigned to the municipality at such time and place and on such subject as he may deem important for the

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promotion of the general welfare of the local government unit and its inhabitants;
(iii) Issue such executive orders as are necessary for the proper enforcement and execution of laws
and ordinances;
(iv) Be entitled to carry the necessary firearm within his territorial jurisdiction;
(v) Act as the deputized representative of the National Police Commission, formulate the peace and
order plan of the city and upon its approval, implement the same; and as such exercise general and
operational control and supervision over the local police forces in the city, in accordance with R.A. No.
6975;
(vi) Call upon the appropriate law enforcement agencies to suppress disorder, riot, lawless violence,
rebellion or sedition, or to apprehend violators of the law when public interest so requires and the city
police forces are inadequate to cope with the situation or the violators;
xviii
Sec 2.5 Exercise such other powers and perform such other duties and functions as may be
prescribed by law or ordinance.  
xix
City Mayor 2) Enforce all laws and ordinances relative to the governance of the city and in the
exercise of the appropriate corporate powers provided for under Section 22 of this Code, implement all
approved policies, programs, projects, services and activities of the city and, in addition to the foregoing,
shall:
(i) Ensure that the acts of the city's component barangays and of its officials and employees are
within the scope of their prescribed powers, duties and functions;
(ii) Call conventions, conferences, seminars, or meetings of any elective and appointive officials of
the city, including provincial officials and national officials and employees stationed in or assigned to the
city, at such time and place and on such subject as he may deem important for the promotion of the
general welfare of the local government unit and its inhabitants;
(iii) Issue such executive orders for the faithful and appropriate enforcement and execution of laws
and ordinances;
(iv) Be entitled to carry the necessary firearm within his territorial jurisdiction;
(v) Act as the deputized representative of the National Police Commission, formulate the peace and
order plan of the city and upon its approval, implement the same; and as such exercise general and
operational control and supervision over the local police forces in the city, in accordance with R.A. No.
6975; (vi) Call upon the appropriate law enforcement agencies to suppress disorder, riot, lawless violence,
rebellion or sedition, or to apprehend violators of the law when public interest so requires and the city
police forces are inadequate to cope with the situation or the violators;
5) Exercise such other powers and perform such other duties and functions as may be prescribed by
law or ordinance.
xx
Ty v. Trampe , G.R. No. 117577, December 5, 1995  
xxi
Secretary of Justice v. Lantion, G.R. No. 139465  
xxii
SEC. 153. Service Fees and Charges. - Local government units may impose and collect such
reasonable fees and charges for services rendered.
xxiii
d) Other Fees and Charges - The barangay may levy reasonable fees and charges:
(1) On commercial breeding of fighting cocks, cockfights and cockpits;
(2) On places of recreation which charge admission fees; and
(3) On billboards, signboards, neon signs, and outdoor advertisements.
xxiv
Malcolm Shaw, International Law (5th ed, 2003), 128-129.  

xxv
In this regard, the Supreme Court, in US v. Joson stated:
Municipal corporations 'are bodies politic and corporate, vested with political and legislative powers for the local civil
government and police regulations for the inhabitants of the particular districts included in the boundaries of the
corporations'… They are founded, in part, upon the idea that the needs of the localities for which they are organized,
'by reason of the density of population, or other circumstances, are more extensive and urgent than those of the general
public in the same particulars.  
xxvi
Ty v. Trampe , G.R. No. 117577, December 5, 1995  
xxvii
See generally, D. Sy& I. Luna, Southeast Asia Tobacco Control Alliance, Tobacco Control
Lawyers’ Manual (2011).  

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