REPLUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION MAKATI CITY, Branch ____ IN THE MATTER OF THE CONSTRUCTION OF SECTION 13(G) OF THE TOBACCO REGULATION ACT IN RELATION TO DOH ADMINISTRATIVE ORDER NO. 20100013 AND THE FRAMEWORK CONVENTION ON TOBACCO CONTROL JUAN M. FLAVIER, EMERITO L. ROJAS, DANILO M. SEGISMUNDO, ROBERTO DE GALA ALVAREZ, EUGENIO TUNGCUL, JR., AMANCIO P. BENAS, MANUEL S. MOSQUEDA, EDMUNDO ROXAS, DARIO V. TALOSIG, MIGUEL JARDIN, PIO LAWAG, JOSE MANMANO, JUAN C. PERALTA, FRANCIS TIMBRE, FAUSTO RECIPROCO, JESSIE C. OCHOA, RODOLFO PALENZUELA, BERNARDO M. QUIJANO, SR., ROMEO A. BUENSUCESO, DAVID B. CAMPAÑANO, FRANCES MAE M. RICAFORT, ALVIN A. TRABACON, AQUILINO A. BALSAMO, ELLIMAR J. JUNTADO, EDGARDO T. CANDIDO, JAY-PEE F. CAMARA, DONALD Z. DATO-ON, ALVIN V. BUNDALIAN, SERGIO A. BALSAMO, ARIEL F. SAENZ, GEORGE A. VINOYA, STANLEY V. MORENO, AUGUST ALBERT V. MARTINEZ, PAUL LUCAS V. MARTINEZ, ROBERTO REYES, VIOLETA C. ROJAS, NEIL VILLACRUCIS, MIRNA R. CAMPAÑANO, EINSTEIN C. ROJAS, VIOLETA C. PERALTA, SARITA DUEÑAS, OFELIA NARCISO, ZENAIDA ARANCEÑA, LYDIA CHAN, DANILO DEL ROSARIO, MARILEN MENDOZA, HELEN GATDULA, RADI DECOLONGON, CECIL IBARRA, LETICIA ARENAS, ROXANNE DEL ROSARIO, ANNALIZA M. RANQUE, MYLA ABALGAR, EMILIE R. CASTAÑEDA, SHARLA RAMOS, MA. BELLA M. EDIAN, WILBERT ABALGAR, MARICAR ABALGAR, MARILYN M. LAVADER, VIRGILIO L. DOCOT, CLARA A. BOMBITA, LEAH 1
G. CABADSAN, CORAZON A. LAVADOR, LIBRADA K. ALTURA, ADELINO C. LAVADOR, ROSEMARIE B. DOLERA, VILMA R. MERILO, NANCY GAMBOA, ANGELYN T. FLORES, INOCENCIO V. TRAJE, ADELUISA H. MARANAN, ELVIRA V. TRAJE, GLORIA V. CASAPAO, MYLENE M. BENDAL, LALIN A. GLORIA, JOSE WARLITO G. ALTURA, MARIA YRA C. DOROTHEO, BRYAN JOSEPH C. DOROTHEO, JEREMY CHRIS C. DOROTHEO, and JEFFREY PAUL C. DOROTHEO, minors and represented by their parents, EDGARDO ULYSSES N. DOROTHEO AND ROSA LYNDA C. DOROTHEO, JOHN PHILIP V. DIANON, a minor represented by his guardian, AMELIA CRISTINA V. MARTINEZ, JOHN KENNETH A. PEÑAMANTE, a minor represented by his guardian, AMELITA A. SINAGUINON, JONEL O. OLATO, a minor represented by his guardian, CATALINA DELA CRUZ, KERON ORJALO, a minor represented by her parent, RICKY ORJALO, ELMER C. SABANAL JR., a minor represented by his parent, EMELITA C. SABANAL, ADRIAN LANCE K. AZUR, a minor represented by his guardian HILDO KO, KIMBERLY LAGUARDIA, a minor represented by her guardian ROSALINA MARRON, AZALEA BRENDA G. DE GUZMAN, a minor represented by her parent, BRENDA G. DE GUZMAN, TOBIEL FRANC M. GASPI, a minor represented by his mother MA. THERESA M. GASPI, ZANN PAOLO L. PACIFICADOR, ROMMEL D.C. GALINGAN, PAUL ANGELO D. OBMINA, MICHELLE A. DY, ANGELO M. MUÑIZ, SHIELANI AGNES B. DINGLE, JOYCE GRACE B. CASAS, MARIA THERESA M. DOMINGO, KEISHA TRINA M. GUANGKO, MIGUEL ANGELO T. BARRETTO, AHMED G. TILLAH, JOSE MANUEL S. SANTOS, DAVID DEL CASTILLO, JENIN ROSANNE H. VELASQUEZ, ANN MARGARET KEH LORENZO, KRISZANNE CERISSE P. CEÑIDOZA, AERON HALOS, JUSTIN BATOCABE, LEAH ZILPAH 2
CALDERON, STEPHANIE FAYE B. REYES, ALMYRRH KRISTA RAMIREZ, ARIANE MAE VALLADA, EVITA MARIZ M. RICAFORT, SHARLYN JOY L. WEE, JHOANA MARIE J. ZAMBRANO, YVONNE DANIELLE G. VIÑAS, JULIAN PAOLO R. PARAISO, KEILAH GAILE A. VILLANUEVA, ALVIN H. TENGONCIANG, MARY ROSE S. VILLALON, GLEN T. VENTANILLA, LESLEY ANNE G. TUBIO, KATRINA S. VERZOSA, CARLSBERG HOWARD C. TSANG, JANELLA M. TIU, VINCENT S. ROELALOS, JAMES A. RONDAL, ARMAND DELO A. TAN, JESSICA GRACE T. PREGO, AURORA AUREO M. REYES, ADRIAN M. PEREZ, SAHRA MAY O. PARAGAS, LIEZLYGAYLE F. LIMOS, GERALD CAESAR O. LIBRANDA, DENNIS C. MADARCOS, MARION D. LAGMAY, TRISTAN R. PAGARA, ABIGAIL S. MARALIT, NATHALYN T. QUAN, GLENNIS FIONA J. JAVELOSA, CO-NEIL R. RELATO, NIZHREEN T. MAPANDI, LEON T. CALMERIN, MANUEL L. OBLEA, ROWENA M. GUTIERREZ, LYVETTE D. SAN DIEGO, JULIUS A. YANO, VIKTOR SAMUEL C. FONTANILLA, LEO RAFAEL L. QUESADA, REGINA CAMILLE A. TRINIDAD, RANIA JOIE MARIE D. JOYA, GENEFLOR L. SANTIAGO, GINO PAOLO O. UY AND GUILIA FRANCESCA D. PINEDA. Petitioners, -versus-
FORTUNE TOBACCO CORPORATION, PHILIP MORRIS PHILIPPINES MANUFACTURING, INC., PMFTC, INC., TELENGTAN BROTHERS & SONS, INC., DOING BUSINESS UNDER THE NAME AND STYLE LA SUERTE CIGAR AND CIGARETTE FACTORY, MIGHTY CORPORATION TOBACCO COMPANY, JT INTERNATIONAL (PHILIPPINES), AMERICAN TOBACCO (PHILS) LTD, ASSOCIATED ANGLO AMERICAN TOBACCO CORP, IMPERIAL TOBACCO CORPORATION, LA 3
CAMPANA FABRIA DE TABACOS, INC., TABAQUERIA DE FILIPINAS INC., CAPITAL TOBACCO CORP., STERLING TOBACCO CORPORATION, PHILIPPINE TOBACCO INSTITUTE and THE DEPARTMENT OF HEALTH. Respondents.
PETITION FOR DECLARATORY RELIEF Petitioners respectfully state:
THE PARTIES
1.
Petitioners are citizens of the Philippines, either of legal age or minors
represented by their parents, as indicated in succeeding paragraphs.
1.1.
Petitioners may be notified of pertinent processes through
the University of the Philippines Office of Legal Aid (UP OLA), at UP OLA, Room 107, Ground Floor, Malcolm Hall, University of the Philippines, Diliman, Quezon City.
2.
Respondents are the following:
2.1.
Respondent Fortune Tobacco Corporation is a domestic
corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines, and is engaged in the business of manufacturing, selling, importing, exporting cigarettes such as, but not limited to, Fortune, Hope, and Champion cigarettes. It may be served with summons and other court processes at its principal business address at Brgy. Fortune, Parang, Marikina City.
2.2.
Respondent Philip Morris Philippines Manufacturing, Inc. a
domestic corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines, and is engaged in the cigarette industry, including manufacturing, marketing and otherwise dealing in cigarette products, including Marlboro, Philip Morris, L&M, Bowling Gold 4
and Miller. It may be served with summons and other court processes at its principal business address at 27/F Tower 1, The Enterprise Center, 6766 Ayala Ave., cor. Paseo de Roxas, Makati City. 2.3.
Respondent PMFTC Inc. is a domestic corporation duly
organized and existing under and by virtue of the laws of the Republic of the Philippines, and is engaged in the business of manufacturing, processing, packing, buying, selling on wholesale, distributing, marketing and otherwise dealing in cigarette products.
It may be served with
summons and other court processes at its principal business address at Lot 3, Phase 1B, First Philippine Industrial Park, Tanauan City, Batangas.
2.4.
Respondent Telengtan Brothers & Sons, Inc. is a corporation
duly organized and existing under the laws of the Republic of the Philippines. It is doing business under the name and style of La Suerte Cigar and Cigarette Factory and is engaged in the manufacture and marketing of cigarettes and other tobacco products, such as Astro and Memphis. It may be served with summons and other court processes at its principal business address at Km. 14, South Super Highway, Parañaque City.
2.5.
Respondent Mighty Corporation Tobacco Company is a
domestic corporation, duly organized and existing under and by virtue of the laws of the Republic of the Philippines, and is engaged in the business of manufacturing, distributing and selling at wholesale/retail tobacco products such as La Campana, Matamis Cortos B-29, and Break cigarettes. It may be served with summons and other court processes at its principal business address No. 55, McArthur Highway, Bo. Tikay, Malolos City, Bulacan.
5
2.6.
Respondent JT International (Philippines), Inc. is a domestic
corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines.
It is engaged in the business of
importation, manufacturing, distribution and marketing of tobacco products, such as Mild Seven, Winston, Salem and Camel. It may be served with summons and other court processes at its principal business address at Unit 2704 & 2705, 27/F Discovery Centre, 25 ADB Avenue, Ortigas Center, Pasig City.
2.7.
Respondent British American Tobacco (Phils) Ltd is a
foreign corporation duly organized and existing under the laws of England. It is engaged in the business of importation of tobacco products such as Dunhill, Kent, Lucky Strike, and Pall Mall. It may be served with summons and other court processes at its principal business address at 22F Citibank Tower, 8741 Paseo de Roxas, Makati City.
2.8.
Respondent Associated Anglo American Tobacco Corp. is a
domestic corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines. It is engaged in the manufacture of cigars and cigarettes and allied products. It may be served with summons and other court processes at its principal business address at 2655 Dimasalang Street, Pasay City.
2.9.
Respondent Imperial Tobacco Corporation is a domestic
corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines. It is engaged in the business of manufacturing, distributing, selling, importing, exporting and otherwise dealing in tobacco products such as Davidoff and West. It may be served with summons and other court processes at its principal business address at SMFG Compound, Legaspi cor. Eagle St. Barrio Ugong, Pasig City.
2.10. Respondent La Campana Fabrica de Tabacos, Inc. is a domestic corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines. It is engaged in the business of manufacturing and dealing in cigarettes, cigars and all kinds of cigarette products. It may be served with summons and other court processes at its 6
principal business address at 9110 Sultana Street cor. Trabajo Street, Makati City.
2.11. Respondent Tabaqueria de Filipinas Inc. is a domestic corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines. It is engaged in the business of manufacturing, importing, exporting, buying, selling and retail of tobacco products such as Flor de Filipinas, Independencia 1989 and Antonio Gimenez. It may be served with summons and other court processes at its principal business address at Edificio Belin, Magsaysay Rd., Brgy. San Antonio, San Pedro, Laguna.
2.12. Respondent
Capital
Tobacco
Corp.
is
a
domestic
corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines. It is engaged in the business of manufacturing tobacco products such as Hi-class, Menthol, Bonus, and Aurora. It may be served with summons and other court processes at its principal business address at 11th St., 12th Ave., Grace Park, Caloocan City.
2.13. Respondent Sterling Tobacco Corporation is a domestic corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines. It is engaged in the business of manufacturing, selling, importing, exporting tobacco products such as Bowling Green and Stork. It may be served with summons and other court processes at its principal business address at 3F, Vernida IV Bldg., Leviste Street, Salcedo Village, Makati City.
2.14. Respondent
Philippine
Tobacco
Institute,
Inc.
is
an
association of tobacco manufacturers and importers duly organized and existing under and by virtue of the laws of the Republic of the Philippines. It may be served with summons and other court processes at its principal business address at Unit 508, Heritage Building, 1851 Dr. Antonio Vazquez Street, Malate, Metro Manila.
7
2.15. Respondent Department of Health, the agency that is tasked to implement and enforce the subject administrative issuance, is impleaded herein as its rights and obligations would be affected by the declaratory relief sought by Petitioners. 3.
Considering that the instant Petition involves the construction and validity
of a statute and an administrative order, notice of this Petition is likewise given to the Office of the Solicitor General in accordance with Section 3, Rule 63 of the Rules of Court.1
ANTECEDENT FACTS 4.
In 1992, Republic Act No. 7394 or the Consumer Act of the Philippines
(hereinafter referred to as ―Consumer Act‖) was enacted with the objective of (i) protecting consumers against hazards to health and safety and deceptive, unfair and unconscionable sales acts and practices and (ii) provision of information and education to facilitate sound choice and the proper exercise of rights by the consumer. Article 94 of the Consumer Act required cigarette packages to bear the following statement or its equivalent in Filipino in a conspicuous place:
"Warning" Cigarette Smoking is Dangerous to Your Health"
5.
In 2003, Republic Act No. 9211 Tobacco Regulation Act of 2003
(hereinafter referred to as ―Tobacco Regulation Act‖) was enacted, repealing Article 94 of the Consumer Act. A copy of the Tobacco Regulation Act and its Implementing Rules and Regulations are attached hereto as Annexes A and B.
5.1.
The Tobacco Regulation Act required the following textual
health warnings to be printed in English or in the vernacular on the bottom portion of the front panel of every tobacco product package and to occupy not less than thirty percent (30%) of such panel:
1
Section 3 of Rule 63 of the Rules of Court provides:
Section 3. Notice on Solicitor General. — In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question .
8
"GOVERNMENT WARNING; Cigarette are Addictive"; "GOVERNMENT WARNING; Tobacco Can harm your Children"; or "GOVERNMENT WARNING; Smoking Kills." 5.2.
In addition to these health warnings, the Tobacco Regulation
Act required all packages of tobacco products to contain the following statement on one side panel, which statement should occupying an area of not less than ten percent (10%):
"NO SALE TO MINORS" or "NOT FOR SALE TO MINORS."
5.3.
Section 13(g) of the Tobacco Regulation Act further requires
that no other printed warnings, except for the warnings and statement contemplated by Section 13, shall be placed on cigarette packages, to wit:
g. No other printed warnings, except the health warning and the message required in this Section, paragraph F shall be placed on cigarette packages. 5.4
Section 32(c) of the Tobacco Regulation Act imposes the
penalties of fine and/or imprisonment for violation of Section 13 thereof: c. Violation of Section 13 to 27 - On the first offense, a fine of not more than One Hundred thousand pesos (Php100,000.00) or imprisonment of not more than one (1) year, or both, at the discretion of the court shall be imposed. On the second offense, a fine of Two hundred thousand pesos (Php200,000.00) or imprisonment of not more than two (2) years, or both, at the discretion of the court shall be imposed. On the third offense, in addition to a fine of not more than Four Hundred thousand pesos (Php400,000.00) or imprisonment of not more than three (3) years, or both at the discretion of the court, the business permits and licenses, in the case of a business entity or establishment shall be revoked or cancelled. In the case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable. 9
If the guilty officer is an alien, he shall summarily be deported after serving his sentence and shall be forever barred from re-entering from the Philippines 6.
On 4 September 2005, more than three (3) years after the enactment of
the Tobacco Regulation Act, the World Health Organization (WHO) Framework Convention on Tobacco Control (hereinafter referred to as the ―FCTC‖), a treaty that aims to reduce the public health harms of tobacco use, entered into force in the country after ratification by the Philippine Senate. A copy of the FCTC is attached hereto as Annex C.
6.1.
Article 11 of the FCTC mandates States parties to the
convention, within a period of three years after entry into force of this Convention for that Party, to adopt and implement effective measures to ensure that:
a. packages and labels of tobacco products do not use false, misleading or deceptive means, including terms, descriptors,
any
other sign that creates the false impression that a particular tobacco product is less harmful than others such as ―low tar‖, ―light‖, ―ultra light‖, or ―mild‖; and
b. tobacco product packets and packaging carry health warnings describing the harmful effects of tobacco use or other appropriate messages, which: (i) shall be approved by the competent national authority, (ii) shall be rotating, (iii) shall be large, clear, visible and legible, (iv) should be 50% or more of the principal display areas but shall be no less than 30% of the principal display areas, (v) may be in the form of or include pictures or pictograms. 2 2
Article 11 of the FCTC provides: 1. Each Party shall, within a period of three years after entry into force of this Convention for that Party, adopt and implement, in accordance with its national law, effective measures to ensure that: (a) tobacco product packaging and labelling do not promote a tobacco product by any means that are false, misleading, deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards or emissions, including any term, descriptor, trademark, figurative or any other sign that directly
10
7.
Article 7 of the FCTC requires States Parties to adopt and implement
effective legislative, executive, administrative or other measures necessary to implement its obligations under Article 11 and provides that the Conference of the Parties shall propose appropriate guidelines for the implementation of these Articles, to wit: 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. [Emphasis supplied] 8.
In November 2008, more than three (3) years after the FCTC was ratified,
the Conference of the Parties adopted Guidelines for Implementation of Article 11 of the FCTC on ―Packaging and labeling of tobacco products‖ (the ―Guidelines‖) to assist Parties in meeting their obligations under Article 11 of the Convention, and propose measures that Parties can use to increase the effectiveness of their packaging and
or indirectly creates the false impression that a particular tobacco product is less harmful than other tobacco products. These may include terms such as ―low tar‖, ―light‖, ―ultra-light‖, or ―mild‖; and (b) each unit packet and package of tobacco products and any outside packaging and labelling of such products also carry health warnings describing the harmful effects of tobacco use, and may include other appropriate messages. These warnings and messages: (i) shall be approved by the competent national authority, (ii) shall be rotating, (iii) shall be large, clear, visible and legible, (iv) should be 50% or more of the principal display areas but shall be no less than 30% of the principal display areas, (v) may be in the form of or include pictures or pictograms. 2. Each unit packet and package of tobacco products and any outside packaging and labelling of such products shall, in addition to the warnings specified in paragraph 1(b) of this Article, contain information on relevant constituents and emissions of tobacco products as defined by national authorities. 3. Each Party shall require that the warnings and other textual information specified in paragraphs 1(b) and paragraph 2 of this Article will appear on each unit packet and package of tobacco products and any outside packaging and labelling of such products in its principal language or languages. 1. For the purposes of this Article, the term ―outside packaging and labelling‖ in relation to tobacco products applies to any packaging and labelling used in the retail sale of the product.
11
labeling measures in communicating health risks and reducing tobacco use. A copy of the Guidelines is attached hereto as Annex D.
8.1.
As elaborated in the Guidelines, evidence shows that health
warnings and messages that contain both pictures and text are far more effective than those that are text-only, and have the added benefit of reaching children and people with low-levels of literacy and those who cannot read languages in which the text is written:
Larger picture warnings are also more likely to retain their effectiveness over time and are particularly effective in communicating health effects to low-literacy populations, children and young people. Other elements that enhance effectiveness include locating health warnings and messages on principal display areas, and at the top of these principal display areas; the use of colour rather than just black and white; requiring that multiple health warnings and messages appear concurrently; and periodic revision of health warnings and messages. 3 8.2.
The Guidelines state that pictorial health warnings, when
compared with text-only ones, are:
a. more likely to be noticed; b. rated more effective by tobacco users; c. more likely to remain salient over time; d. better communicate the health risks of tobacco use; e. provoke more thought about the health risks of tobacco use and about cessation; f.
increase motivation and intention to quit; and
g. associated with more attempts to quit.
9.
In compliance with the obligations of the Philippines as State Party to the
FCTC and in accordance with the Guidelines Implementing Article 11 of the FCTC, On 25 May 2010, the Department of Health (hereinafter referred to as the ―DOH‖), issued Administrative Order 2010-0013 ―Requiring Graphic Health Information on Tobacco Product Packages, Adopting Measures to Ensure that Tobacco Product Packaging and Labeling Do Not Promote
Tobacco By Any
Means that are False, Misleading,
Deceptive Or Likely To Create An Erroneous Impression, And Matters Related Thereto‖
3
Guidelines Implementing Article 11 of the FCTC
12
(hereinafter referred to as ―AO 2010-0013‖). A copy of AO 2010-0013, including its Annex, is attached hereto as Annex E.
9.1.
The ―Rationale/Background‖ of AO 2010-0013 sets out the
foundation for the adoption of the policy: ―[e]vidence shows that health information
with
pictures
communicates
health
risks
better
especially to children and young people as well as the illiterate, and increase the motivation of tobacco users to quit and to decrease their tobacco consumption.‖ As such, AO 2010-0013 requires that each unit packet and package of tobacco products for sale, distribution or importation within the country, shall bear large, clear, visible, and legible full-color graphic health information. 10.
As defined in AO 2010-0013, graphic health information refers to
statements and/or other information accompanied by related full-color pictures or pictograms, which inform about the contents, substances, and health dangers of tobacco products, to wit:
"Graphic Health Information" means statements, and/or other information, accompanied by related full-color pictures or pictograms, which inform about the contents and substances, in descriptive form, of tobacco products as well as inform against health dangers and other problems related to tobacco products, tobacco consumption, exposure to tobacco smoke, or other effects of tobacco use.
13
11.
Annex 1 of AO 2010-0013 contains a template of nine (9) variations of
graphic health information as issued by the DOH:
14
12.
Respondents Fortune Tobacco Corporation, PMFTC Inc., Telengtan
Brothers & Sons, Inc., Mighty Corporation Tobacco Company, and JT International (Philippines), Inc. filed multiple suits in different Regional Trial Courts seeking to nullify AO 2010-0013, which they allege to be null and void for, among others: (i) contravening Section 13(g) of the Tobacco Regulation Act, (ii) compliance with AO 2010-0013 would expose Respondents to penalties under the Tobacco Regulation Act, and (iii) lack of legal authority of the DOH to issue the regulation. 12.1. Respondent Fortune Tobacco Corporation filed a Petition for Declaratory Relief with Application for Issuance of TRO and/or Preliminary Injunction against DOH before the Regional Trial Court of Marikina, Branch 272, docketed as SCA Case No. 2010-796MK. An order granting the application for a writ of preliminary injunction was issued by the court on July 1, 2010. The DOH filed an Omnibus Motion (i) to dismiss the petition, (ii) for reconsideration of the July 1, 2010 Order, and (iii) to dissolve the writ of injunction. The Omnibus Motion is still pending resolution.
12.2. Respondent PMFTC Inc. filed a Petition for Prohibition with Application for TRO and/or Preliminary Injunction against DOH before the Regional Trial Court of Tanauan, Batangas, Branch 6, docketed as SPCV No. 10-065232.
12.3. Respondent Telengtan Brothers & Sons, Inc., doing business under the name of La Suerte Cigar and Cigarette Factory filed a Petition for Declaratory Relief with Application for Preliminary Injunction against DOH before the Regional Trial Court of Parañaque, Branch 196, docketed as Civil Case No. 10-0227. On July 22, 2010, the Parañaque RTC issued an Order denying the application for writ of preliminary injunction. Telengtan Brothers & Sons, Inc. filed a Motion for Reconsideration of the foregoing Order, which Motion is still pending resolution.
12.4. Respondent Mighty Corporation Tobacco Company filed a Petition for Declaratory Relief with Application for Issuance of TRO and Preliminary Injunction against DOH before the Regional Trial Court of Malolos, Bulacan, Branch 15, docketed as Civil Case No.393-M-2010. On 15
July 29, 2010, the Malolos RTC issued an Order granting the application for writ of preliminary injunction.
12.5. Respondent JT International (Philippines), Inc. filed a Petition for Nullification of AO 2010-0013 with Application for Issuance of Permanent Injunction against DOH before the Regional Trial Court of Pasig, docketed as Civil Case No. 72567. NATURE OF THE PETITION
13.
This Petition for Declaratory Relief is filed pursuant to Rule 63 of the Rules
of Court and seeks a judicial determination of the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC, which construction would affect the implementation of AO 2010-0013. The right to seek a declaratory judgment is sanctioned by Section 1 of Rule 63 of the Rules of Court, which reads: SECTION 1. Who may file petition. — Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. [Emphasis supplied] 14.
Jurisprudence4 has laid down the following requirements for an action for
declaratory relief to be entertained:
a. The subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance; b. The terms of said documents or the validity thereof are doubtful and require judicial construction; c. There must have been no breach of the documents in question; d. There must be an actual justiciable controversy or the ripening seeds of one between persons whose interests are adverse; e. The issue must be ripe for judicial determination; and f. Adequate relief is not available through other means or other forms of action or proceeding. 4
Jumamil v. CA, G.R. No. 144570, 21 September 2005.
16
15.
An action for declaratory relief is warranted, as discussed below:
15.1. The subject matter of the issue for resolution involves a statute and a government regulation, namely the Tobacco Regulation Act and AO 20100013.
15.2. The
validity
of
AO
2010-0013
has
been
questioned
by
Respondents Fortune Tobacco Corp., PMFTC Inc, Telengtan Brothers & Sons, Inc., Mighty Corporation Tobacco Company, JT International (Philippines), Inc. in separate judicial actions to annul the said governmental regulation; thus, a judicial determination of its validity is necessary.
15.3. There as yet has been no breach of AO 2010-0013 as it has mandated compliance after the lapse of ninety (90) days from its effectivity date, which is 10 June 2010. Thus, there can be no breach until 8 September 2010.
15.4. An actual justiciable controversy exists between the Petitioners, who claim their Constitutional rights to life and health and the statutory right to health information in seeking a judicial determination of the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC, and Respondents, upon which the obligations set out in AO 2010-0013 are imposed, and most of which seek to nullify AO 2010-0013 and have asked for or obtained writs of injunction to prevent the DOH from implementing AO 2010-0013 on the ground that it violates Section 13(g) of the Tobacco Regulation Act.
15.5. The issue of the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC is one that is ripe for judicial determination.
The assailed DOH issuance has an immediate and
substantial impact on the rights and interests of Petitioners and Respondents. The need to settle this issue is apparent from the pending cases assailing the legality of AO 2010-0013 and seeking to enjoin the implementation thereof. 15.6. Adequate relief through other means or other forms of action or proceedings is not available, considering that the Regional Trial Court exercises exclusive original jurisdiction over the judicial construction of provisions of law, which is precisely the relief sought by Petitioners in this case. Respondents have 17
filed multiple and duplicitous suits in various jurisdictions to which Petitioners are not party, thus the latter cannot be reasonably expected to be given adequate relief if they would be forced to resort to piecemeal intervention in all cases filed against AO 2010-0013.
16.
Petitioners have paid the required docket and other lawful fees and the
deposit for the costs simultaneous with the filing of the petition as evidenced by Official Receipts attached to this petition.
Legal Interest
17.
Petitioners are citizens of the Philippines belonging to different sectors of
society, all seeking a judicial determination of the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC.
18.
The DOH itself categorically recognizes the public’s interest in the
implementation and enforcement of AO 2010-0013 by devoting a provision on ―Public Vigilance‖ to encourage the public to report violations of the administrative order, and incorporating a mechanism for the public’s submission of reports of violations to the Office of the Secretary at the national level and the Centers for Health Development at the local level: 8. Public Vigilance. - The Department, monitoring teams, other agencies, and stakeholders, shall encourage the public to report what they deem to be violations under this order. 9. Where to Report. - Reports of violations shall be submitted to the Office of the Secretary, or any other office/agency designated by the Secretary, at the national level, and to the CHDs at the local level. The concerned office/agency shall provide immediate feedback within five (5) working days on actions taken based on the received reports of alleged violations. Former Senator and DOH Secretary Juan Flavier
19.
Petitioner Juan Flavier, as an ordinary citizen, former Senator and
Secretary of Health, has personal and substantial legal interest to seek a judicial determination of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC, having authored Senate Bill No. 1859, which was eventually consolidated with House Bill No. 5960 and enacted into law in 2003 with the passage of the Tobacco 18
Regulation Act. The law required the placement of textual health warnings on the bottom of the front panel and a statement on one side panel of cigarette packs.
20.
As early as 1993, Petitioner Flavier has pioneered administrative
measures to place health warnings on cigarette packs, having issued DOH Administrative Order No. 10, series of 1993, which provided guidelines with respect to the depiction of warning statements on cigarette packs pursuant to Article 94 of the Consumer Act. Respondent Philippine Tobacco Institute filed a complaint for injunction against Flavier, claiming that the administrative order was issued without or in excess of his authority under the Consumer Act. The validity of the administrative order was upheld with finality in 2001. In 2003, the Tobacco Regulation Act repealed Administrative Order No. 10 and amended Article 94 of the Consumer Act.
Victims of Tobacco-related Diseases and Their Families
21.
Petitioners Emerito L. Rojas, Danilo M. Segismundo, Roberto de Gala
Alvarez, Eugenio Tungcul, Jr., Amancio P. Benas, Manuel S. Mosqueda, Edmundo Roxas, Dario V. Talosig, Miguel Jardin, Pio Lawag, Jose Manmano, Juan C. Peralta, Francis Timbre, Fausto Reciproco, Jessie C. Ochoa, Rodolfo Palenzuela, Bernardo M. Quijano, Sr., Romeo A. Buensuceso, David B. Campañano are individuals who have suffered from laryngeal cancer. All but one have undergone laryngectomy – a procedure for the removal of the larynx and separation of the airway from the mouth, nose, and esophagus – leading to the loss of their voices. Laryngeal cancer is 99% caused by smoking.
21.1. At the time these individuals began smoking, it was not mandatory for tobacco products to carry health warnings on their packets. The specific brands smoked by said individuals also did not carry any health warnings.
They received no health warnings when they began
smoking, and when they realized that smoking was hazardous to their health, they could no longer quit. 22.
Cancer patients and survivors have been found to still smoke after
diagnosis and treatment of cancer5 – a testament to the addictive nature of the smoking.
5
Burke, Lola et al. Smoking Behaviors Among Cancer Survivors: An Observational Clinical Study, American Society of Oncology Practice Journal of Clinical Oncology. Available from: http://jop.ascopubs.org/content/5/1/6.abstract
19
Cancer survivors are at greater risk of cancer recurrence.
The graphic health
information mandated by AO 2010-0013 would help deter these victims from continuing or resuming their smoking addiction, whereas the ban on misleading descriptors would protect them from marketing drives of tobacco companies aimed at deceiving them into believing that a healthier option in cigarettes branded as ―light,‖ ―mild,‖ and other similarly misleading terms is available.6 As such, these Petitioners have a direct and material legal interest in the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC insofar as the issuances address their right to be protected from deceptive and/or inadequate information on cigarette packaging and labelling as well as other forms of promotion that would lure them back to smoking. The enforcement of AO 2010-0013 would help protect these Petitioners from resuming tobacco consumption, which in the Petitioners’ case would definitely be a death sentence.
23.
Petitioners Violeta C. Rojas, Neil Villacrucis, Mirna R. Campañano,
Einstein C. Rojas, Violeta C. Peralta are family members of individuals with tobaccorelated illnesses, and who consequently suffer from serious physical, emotional and financial burden caused medical expenses, in addition to the . Hence, they have direct and personal interest in the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC to protect their families’ right to health information and prevent others from yielding to the same fate.
24.
Petitioner Roberto Reyes is the brother of a deceased smoker, Vincent
Reyes, who died of lung cancer at the age of 47 in December 2004. Vincent Reyes was enticed to smoke by the marketing of cigarettes at the tender age of fourteen (14) and was diagnosed with lung cancer in 2000. A few months before his death, Vincent filed a complaint for damages against respondent Philip Morris Philippines Manufacturing, Inc., which case has been mired in litigation up to the present. Vincent’s wife Helen Rose and their children Paolo Christian and Miguel Christian have now substituted for him in that case. Fr. Roberto Reyes personally witnessed how his brother embattled a tobacco-related disease and eventually died as a result of false and deceptive information about the harmful nature of tobacco products compounded by the devious marketing practices of tobacco firms. He, along with the bereaved wife and children of his brother, experienced physical, emotional and financial suffering due to the loss of a close family member. As such, Fr. Robert Reyes has direct and personal interest in the 6
Ibid.
20
construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC to protect his family’s and his own right to health information and thus prevent others from succumbing to a fate similar to that of his late brother.
Smokers or Consumers of Tobacco Products
25.
Petitioners Frances Mae M. Ricafort, Alvin A. Trabacon, Aquilino A.
Balsamo, Ellimar J. Juntado, Edgardo T. Candido, Jay-pee F. Camara, Donald Z. Datoon, Alvin V. Bundalian, Sergio A. Balsamo, Ariel F. Saenz, George A. Vinoya, Stanley V. Moreno, August Albert V. Martinez, Paul Lucas V. Martinez are smokers or consumers of tobacco products. The multiple cases filed by Respondents assailing the validity of AO 2010-0013 and blocking its implementation hinder government efforts to protect the people’s right to health and health information. Smokers are deprived of sufficient and effective health warnings and messages that would otherwise allow them to make informed and sound decisions significantly affecting their health.
26.
Petitioners, as smokers exposed to the marketing drives of tobacco
companies, have a direct interest to ensure that government efforts directed at safeguarding their right to health are implemented. The Constitution, Administrative Code, Consumer Act and FCTC, among other laws and treaties adopted by the Philippines, expressly acknowledge and protect this right. Clearly, every consumer has a right to be protected from misinformation and misleading and deceitful practices that lead to erroneous assumptions about hazards of tobacco products.
Families of smokers
27.
Petitioners Sarita Dueñas, Ofelia Narciso, Zenaida Aranceña, Lydia Chan,
Danilo del Rosario, Marilen Mendoza, Helen Gatdula, Radi Decolongon, Cecil Ibarra, Leticia Arenas, Roxanne del Rosario, Annaliza M. Ranque, Myla Abalgar, Emilie R. Castañeda, Sharla Ramos, Ma. Bella M. Edian, Wilbert Abalgar, Maricar Abalgar, Marilyn M. Lavader, Virgilio L. Docot, Clara A. Bombita, Leah G. Cabadsan, Corazon A. Lavador, Librada K. Altura, Adelino C. Lavador, Rosemarie B. Dolera, Vilma R. Merilo, Nancy Gamboa, Angelyn T. Flores, Inocencio V. Traje, Adeluisa H. Maranan, Elvira V. Traje, Gloria V. Casapao, Mylene M. Bendal, Lalin A. Gloria and Jose Warlito G. Altura are members of families of smokers. Family members of smokers take the heaviest toll in tobacco consumption due to exposure to secondhand smoke, which has been found to be as lethal as direct consumption. Petitioners have personal and material legal 21
interest in the judicial determination of the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC, considering that their health and well-being stand to suffer directly from the undeterred tobacco consumption of their family members aggravated by lack of health information and misleading and deceptive marketing practices of the tobacco industry. 27.1. The WHO acknowledges that ―[I]n adults, second-hand smoke causes serious cardiovascular and respiratory diseases, including coronary heart disease and lung cancer. In infants, it causes sudden death. In pregnant women, it causes low birth weight.‖ 7 Children living with smokers are home are at greatest risk since ―[a]bout 40% of all children are regularly exposed to second-hand smoke at home. 31% of the deaths attributable to second-hand smoke occur in children.‖8 Exposure to smoking at home is also responsible for the growing number of smokers since ―youths exposed to second-hand smoke at home are one-and-a-half to two more times more likely to start smoking that those not exposed.‖9 28.
The burden that Petitioners suffer goes beyond health risks. Smoking
takes a financial toll on the family, especially for those who have family members suffer from chronic illnesses related to tobacco, because of medical expenses and loss of income caused by illnesses. It would not be amiss to state that the Civil Code places the financial burden of support on family members, including expenses for medical attendance.10 Smokers sufficiently informed of the hazards of smoking have a better chance of quitting the habit and save their families from the financial and emotional burden smoking causes. Hence, it is the right of family members to be protected from the financial woes caused by smoking addiction, which is perpetuated by inadequate, false, or misleading health information about tobacco products sought to be addressed by AO 2010-0013. 7
World Health Organization Fact Files, 10 Facts on Second-Hand Smoke. Available from: http://www.who.int/features/factfiles/tobacco/en/index.html 8 Ibid. 9 Ibid. 10 Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. xxx Art. 105. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of full or half-blood.
22
Minors and their Parents
29.
Petitioners Maria Yra C. Dorotheo, Bryan Joseph C. Dorotheo, Jeremy
Chris C. Dorotheo, Jeffrey Paul C. Dorotheo, John Philip V. Dianon, John Kenneth A. Peñamante, Jonel O. Olato, Keron Orjalo, Elmer C. Sabanal Jr., Adrian Lance K Azur, Kimberly Laguardia, Azalea Brenda G. de Guzman and Tobiel Franc M. Gaspi are minors represented by their parents or guardians, Edgardo Ulysses N. Dorotheo, Rosa Lynda C. Dorotheo, Amelia Cristina V. Martinez, Amelita A. Sinaguinon, Catalina dela Cruz, Ricky Orjalo, Emelita C. Sabanal, Hilda Ko, Rosalina Marron, Brenda G. de Guzman and Ma. Theresa M. Gaspi, who are likewise petitioners herein. Petitioners who are minors, being the sector most vulnerable to the hazards of smoking and secondhand smoke, have a direct and material legal interest in the case insofar as the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC would affect the protection afforded to them by the governmental regulation against increased tobacco consumption and exposure to tobacco smoke.
29.1. The right of the child to the enjoyment of the highest attainable standard of health is enshrined in Article 24.1 of the United Nations Convention on the Rights of the Child.11 The Convention further sets forth the extensive rights to which all children are entitled without distinction, such as:
a. the right to all the basic physical requirements of a healthy and vigorous life, b. the right to protection against hazards and other conditions or circumstances prejudicial to his physical development, and c. the right to live in a community and a society that can offer an environment free from pernicious influences and conducive to the promotion of health.12
11
The Philippines signed the United Nations Convention on the Rights of a Child on January 26, 1990 and ratified on 21 August 1990. Available from: http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en 12
The UN Convention on the Rights of the Child provides:
Article 3. Rights of the Child. - All children shall be entitled to the rights herein set forth without distinction as to legitimacy or illegitimacy, sex, social status, religion, political antecedents, and other factors. (4) Every child has the right to a balanced diet, adequate clothing, sufficient shelter, proper medical attention, and all the basic physical requirements of a healthy and vigorous life. xxx
23
30.
Petitioners who are parents, on the other hand, have the responsibility to
ensure the best interest of their children, which definitely includes ensuring the health and welfare of minor children. Parents have the clear legal right duty, as set out in the Family Code to prevent their children from acquiring habits detrimental to their health, and represent them in all matters affecting their interests.13
Health, welfare and
educational entities, in turn, have the responsibility, as set out in the Child and Youth Welfare Code, to assist the parents in looking after the health of the child.14 Youth
31.
Petitioners Zann Paolo L. Pacificador, Rommel D.C. Galingan, Paul
Angelo D. Obmina, Michelle A. Dy, Angelo M. Muñiz, Shielani Agnes B. Dingle, Joyce Grace B. Casas, Maria Theresa M. Domingo, Keisha Trina M. Guangko, Miguel Angelo T. Barretto, Ahmed G. Tillah, Jose Manuel S. Santos, David del Castillo, Jenin Rosanne H. Velasquez, Ann Margaret Keh Lorenzo, Kriszanne Cerisse P. Ceñidoza, Aeron Halos, Justin Batocabe, Leah Zilpah Calderon, Stephanie Faye B. Reyes, Almyrrh Krista Ramirez, Ariane Mae Vallada, Evita Mariz M. Ricafort, Sharlyn Joy L. Wee,
(8) Every child has the right to protection against exploitation, improper influences, hazards, and other conditions or circumstances prejudicial to his physical, mental, emotional, social and moral development. (9) Every child has the right to live in a community and a society that can offer him an environment free from pernicious influences and conducive to the promotion of his health and the cultivation of his desirable traits and attributes. (10) Every child has the right to the care, assistance, and protection of the State, particularly when his parents or guardians fail or are unable to provide him with his fundamental needs for growth, development, and improvement. 13
The Family Code provides:
Article 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; xxx (4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (5) To represent them in all matters affecting their interests; 14
P.D. 603 or the Child and Youth Welfare Code provides:
Article 11. Promotion of Health. - The promotion of the Child's health shall begin with adequate pre-natal and post-natal care both for him and his mother. All appropriate measures shall be taken to insure his normal total development. It shall be the responsibility of the health, welfare, and educational entities to assist the parents in looking after the health of the child.
24
Jhoana Marie J. Zambrano, Yvonne Danielle G. Viñas, Julian Paolo R. Paraiso, Keilah Gaile A. Villanueva, Alvin H. Tengonciang, Mary Rose S. Villalon, Glen T. Ventanilla, Lesley Anne G. Tubio, Katrina S. Verzosa, Carlsberg Howard C. Tsang, Janella M. Tiu, Vincent S. Roelalos, James A. Rondal, Armand Delo A. Tan, Jessica Grace T. Prego, Aurora Aureo M. Reyes, Adrian M. Perez, Sahra May O. Paragas, Liezly Gayle F. Limos, Gerald Caesar O. Libranda, Dennis C. Madarcos, Marion D. Lagmay, Tristan R. Pagara, Abigail S. Maralit, Nathalyn T. Quan, Glennis Fiona J. Javelosa, Co-Neil R. Relato and Nizhreen T. Mapandi, are citizens of the Philippines between the ages of eighteen (18) and thirty five (35) years. As members of the youth sector, which is most susceptible to the lures of tobacco use,15 and the sector where use of health information with pictures has shown to be more effective,16 they have an actual and direct interest in the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 20100013 and the FCTC.
32.
Parties to the FCTC have expressed deep concern over the escalation in
smoking and other forms of tobacco consumption by children and adolescents worldwide, particularly smoking at increasingly early ages. 17 As a sector which is the primary target of tobacco companies in their marketing campaigns18, and thus, having been long bombarded by a deluge of advertisements at such an impressionable age, the youth is in dire need of measures that could save them from unknowingly falling prey to the profit-driven schemes of these companies. The 2007 Global Youth Tobacco Survey of the WHO shows the rising prevalence of smoking among the youth in the Philippines -- almost 40% increase in prevalence of smoking among school children 13 to 15 years old within the span of 4 years.
33.
The Guidelines Implementing Article 11 of the FCTC provide that ―[l]arger
warnings with pictures have been shown to be particularly effective with children and young people, as they are more likely to be noticed, better communicate health risks, and provoke a greater emotional response.19 The construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC will have a direct impact on the right of the youth to be more sufficiently and effectively informed of the ills of tobacco use before they fall into an addiction that could ultimately cost their lives. 15
Preamble of the FCTC (Annex C) Showing the truth, saving lives: the case for pictorial health warnings. World Health Organization (2009) Available from: http://www.who.int/tobacco/resources/publications/wntd/2009/materials/brochure/en/index.html 17 Preamble of the FCTC (Annex C) 18 see W ORLD HEALTH ORGANIZATION, THE TOBACCO INDUSTRY DOCUMENTS: A PRACTICAL MANUAL, 9-10, 1314 (2005) 19 Guidelines Implementing Article 11 of the FCTC. 16
25
Other Citizens Interested in Protecting the Right to Life, the Right to Health and the Public Interest 34.
Petitioners Leon T. Calmerin, Manuel L. Oblea, Rowena M. Gutierrez,
Lyvette D. San Diego, Julius A. Yano, Viktor Samuel C. Fontanilla, Leo Rafael L. Quesada, Regina Camille A. Trinidad, Rania Joie Marie D. Joya, Geneflor L. Santiago, Gino Paolo O. Uy, Guilia Francesca D. Pineda are concerned citizens who will personally and substantially be affected by the judicial determination of the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC, since this measure is the State’s compliance with its obligation to promote and safeguard the right of its citizens to life and to health.
35.
The Philippines is replete with laws establishing every Filipino’s right to
health and health information, providing for particular measures to guarantee said right. Every person has the right to life, which is inextricably dependent on the right to health. The Constitution recognizes this fundamental right of the people and affirms the corollary duty of the State to protect and promote this particular right of every Filipino citizen. Thus:
Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. 36.
The Supreme Court has recognized that the right to health is an
enforceable legal right, fundamental in character and inherent in every human being. In fact, the Supreme Court has clearly held in a landmark case that the right to health ―unites‖ with the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature, and that such right ―concerns nothing less than selfpreservation and self-perpetuation…the advancement of which may even be said to predate all governments and constitutions….As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind.‖20 37.
The UN Committee on Economic, Social and Cultural Rights recognized
that the right to health is closely interdependent with the right to life and other human rights:
20
Oposa v. Factoran, G.R. No. 101083, 30 July 1993.
26
The right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement. These and other rights and freedoms address integral components of the right to health.21
38.
Furthermore, the Petitioners have a right to know what will threaten their
right to life and to health, which right is well-settled to be superior to the mere right to property that respondent tobacco companies invoke in defying public health regulations such as AO 2010-0013. In the drafting of the Constitution, in fact, it was made clear that in the hierarchy of rights, life and liberty are above property. As testified to by Fr. Joaquin Bernas:
―In one same sweeping sentence, the Constitution has etched out the basic protection given to life, liberty and property. The impression is thus given that that the Constitution gives to property the same degree and quality of protection that it gives to life and liberty. [However], …Convention deliberations clearly recognized the social character of private property, emphatically enunciated in [1935] Article II, Section 6, [that] definitely placed property in a position inferior to life or liberty.”22 [Emphases supplied] 39.
The primacy of the right to health is significantly illustrated in jurisprudence
promulgated in the United States as early as 1905. In Jacobson v. Massachusetts,23 the United States Supreme Court upheld the validity of a public health regulation requiring vaccination to protect the health of the community, as against the ―right to personal liberty‖ being invoked by the plaintiff who refused to comply with the regulation. It further recognized that it is the agency's role to choose from available regulatory alternatives, and courts can only interfere where such regulations are so arbitrary and oppressive. The Court emphasized that otherwise, the public authority would be ―practically stripped‖ of its function to care for the public health and safety when endangered by disease. Similarly, in the case at bar, the right to health of the Petitioners as protected by the DOH through its administrative issuances should prevail over whatever rights the respondent tobacco companies may allege to justify their defiance of valid and reasonable public health regulations such as AO 2010-0013.
21
General Comment No. 14 (2000), par. 3. Bernas, Joaquin G., The 1987 Constitution of the Republic of the Philippines: A Commentary (2009), page 111. 22
27
40.
The issues involved in the case undoubtedly have a direct effect upon the
State’s interest in and obligation of respecting, protecting, promoting, and fulfilling the public’s inherent and constitutional right to life and to health. It involves matters of public right and interest, where it is the people who are the real parties. It is the right and duty of every citizen to thus interfere and vindicate such public right and interest. 24
A Case of Transcendental Importance and Far-reaching Implications
41.
Notwithstanding the clear legal interest of Petitioners in the above-
mentioned capacities, it is well-settled that when the proceeding involves the assertion of a public right, the mere fact that one is a citizen satisfies the requirement of personal interest.25 To reiterate, the issue of the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC involves the public right to life and to health, which subsumes the right to be protected from hazards to health and safety, and the right to health information.
42.
Furthermore, the rules on standing have oft been relaxed where the case
involves issues of transcendental importance or where it has far-reaching implications. Thus, the Supreme Court, in a number of cases, has adopted a liberal policy, allowing ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings. 26 The Supreme Court has held that cases of transcendental importance to the public must be settled promptly and definitely, brushing aside technicalities of procedure, such as when ordinary citizens and taxpayers are invoking only an indirect and general interest shared in common with the public.27
23 24
197 U.S. 11 (1905)
David v. Macapagal-Arroyo, G.R. No. 171396, et seq., 3 May 2006. Franciso v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133; Senate of the Philippines v. Eduardo Ermita, G.R. No. 169777, April 25, 2006. 26 See David v. Macapagal-Arroyo, G.R. No. 171396, et seq., 3 May 2006, 489 SCRA 160; Tañada v. Tuvera, G.R. No. 63915, 24 April 1985, 136 SCRA 27 (1985); Legaspi v. Civil Service Commission, G.R. No. 72119, 29 May 1987, 150 SCRA 530 (1987); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, 30 June 1988, 163 SCRA 371 (1988); Albano v. Reyes, G.R. No. 83551, 11 July 1989, 175 SCRA 264 (1989); Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. No. 78742, 14 July 1989, 175 SCRA 343 (1989); Gonzales v. Macaraig, Jr., G.R. No. 87636, 19 November 1990, 191 SCRA 452 (1990); Maceda v. Macaraig, Jr., G.R. No. 88291, 31 May 1991, 197 SCRA 771 (1991); Osmeña v. Comelec, G.R. Nos. 100318, 100308, 100417, 100420, 30 July 1991, 199 SCRA 750 (1991); De Guia v. Comelec, G.R. No. 104712, 6 May 1992, 208 SCRA 420 (1992); Bagong Alyansang Makabayan v. Zamora, G.R. Nos. 138570, 138572, 138587, 138680, 138698, 10 October 2000, 342 SCRA 449 (2000); Lim v. Executive Secretary, G.R. No. 151445, 11 April 2002, 380 SCRA 739 (2002); Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002, 384 SCRA 152 (2002) (emphasis added). 27 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343, 364-365 [1989]. 25
28
43.
Given the fundamental nature of the right involved in the instant case, it is
respectfully submitted that the Petitioners, representing Filipino citizens who are smokers or consumers of tobacco products, their family members, victims of tobaccorelated diseases, minors and their parents, youth, and concerned citizens invoking their constitutional right to health, be recognized as clothed with sufficient legal interest to seek the judicial determination of the construction of Section 13(g) of the Tobacco Regulation Act in relation to AO 2010-0013 and the FCTC.
ISSUE
44.
The pivotal issue in this case is whether Section 13(g) of the Tobacco
Regulation Act precludes the DOH from issuing AO 2010-0013.
ARGUMENTS
45.
Petitioner respectfully submits that Section 13(g) of the Tobacco
Regulation Act does not preclude the DOH from issuing AO 2010-0013 on the following grounds:
I. SECTION 13(G) OF THE TOBACCO REGULATION ACT DOES NOT CURTAIL THE RIGHT AND DUTY OF DOH TO ISSUE REGULATIONS PROTECTING THE RIGHT TO HEALTH AND HEALTH INFORMATION THROUGH AO 2010-0013. II. THE REQUIREMENT OF GRAPHIC HEALTH INFORMATION UNDER AO 2010-0013 COMPLEMENTS SECTION 13(G) OF THE TOBACCO REGULATION ACT. III. THE DOH VALIDLY ISSUED AO 2010-0013 PURSUANT TO ARTICLES 7 AND 11 OF THE FCTC.
DISCUSSION
29
I. SECTION 13(G) OF THE TOBACCO REGULATION ACT DOES NOT CURTAIL THE RIGHT AND DUTY OF DOH TO ISSUE REGULATIONS PROTECTING THE RIGHT TO HEALTH AND HEALTH INFORMATION THROUGH AO 20100013.
46.
The DOH is authorized to promulgate AO 2010-0013. Pursuant to the
Constitutional state policy that the State shall protect and promote the right to health of the people and instill health consciousness among them,28 the Administrative Code gives DOH the authority and primary responsibility to formulate, plan, implement, and coordinate policies and programs in the field of health.29
47.
The DOH is undeniably the government authority that is competent to deal
with health information and consequently, the ―competent national authority‖ to approve tobacco health warnings under the FCTC and its Guidelines. This authority to undertake measures to protect public health through regulations relating to health information on product packaging was likewise affirmed by the Supreme Court en banc in the case of Pharmaceutical and Health Care Association of the Phil. (PHAP) v. Health Secretary. 30
As early as the 1917 Revised Administrative Code of the Philippine Islands, health information was already within the ambit of the regulatory powers of the predecessor of DOH. Section 938 thereof charged it with the duty to protect the health of the people, and vested it with such powers as ―(g) the dissemination of hygienic information among the people and especially the inculcation of knowledge as to the proper care of infants and the methods of preventing and combating dangerous communicable diseases. Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy pronounced under Section 15, Article II of the 1987 Constitution, which is “to protect and promote the right to health of the people and instill health consciousness among them.‖ To that end, the DOH was granted under Section 3 of the Administrative Code the power to ―(6) propagate health information and educate the population on important health, medical and environmental matters which have health implications.‖ 48.
The Tobacco Regulation Act does not and could not curtail the mandate of
the DOH under the Constitution and the Administrative Code to protect and promote the right to health. The Tobacco Regulation Act does not prevent the DOH from exercising 28
Section 15, Article II, 1987 Philippine Constitution. Title IX, Chapter I, Section 2 of the 1987 Administrative Code. 30 G.R. No. 173034, 09 October 2007. 29
30
the power to require other health information or prohibit misleading descriptors on tobacco product packages. Any interpretation to the contrary would be ludicrous and would have an effect of making Section 13(g) of the Tobacco Regulation Act unconstitutional for being overbroad and curtailing Constitutional mandates to promote the right to health.
49.
The contents of AO 2010-0013 requiring graphic health information and
prohibiting misleading descriptors on tobacco product packages is in compliance with the State’s treaty obligation and thus passes the test of reasonableness. The DOH did not add nor expand the scope of Article 11 of the FCTC in requiring graphic health information through AO 2010-0013. In fact, the provisions of AO 2010-0013 are well within and directly implement Article 11 of the FCTC as guided by the Implementing Guidelines released by the WHO. AO 2010-0013 is germane to the objects and purposes of the FCTC, and conforms to and is consistent with Article 11 of the FCTC, and is thus reasonable and valid. In the words of the Supreme Court: ―The rules and regulations that administrative agencies promulgate, which are the product of a delegated legislative power to create new and additional legal provisions that have the effect of law, should be within the scope of the statutory authority granted by the legislature to the administrative agency. It is required that the regulation be germane to the objects and purposes of the law, and be not in contradiction to, but in conformity with, the standards prescribed by law. They must conform to and be consistent with the provisions of the enabling statute in order for such rule or regulation to be valid. Constitutional and statutory provisions control with respect to what rules and regulations may be promulgated by an administrative body, as well as with respect to what fields are subject to regulation by it.‖ 31 50.
Furthermore, the DOH retains jurisdiction under the Consumer Act to
issue additional labelling and packaging requirements to protect the consumers against hazards to health and safety, deceptive, unfair and unconscionable sales acts and practices, and facilitate sound choice and the proper exercise of consumer rights, as enshrined under Article 3 thereof, notwithstanding the express amendment of Article 94 with respect to specific warnings for tobacco products. 51.
Article 79 of the Consumer Act provides that if the Department
determines that regulations containing requirements are necessary to prevent the deception of the consumer, it may issue additional labelling and packaging
31
Smart Communications, Inc. (Smart) vs. National Telecommunications Commission (NTC), G.R. No. 151908, 12 August 2003; G.R. No. 152063, 12 August 2003.
31
requirements.32 The provision provides for instances when such regulations may be released. However, it must be stressed that the purpose of the law is to consider the best interest of the consumers in the interpretation and implementation of the Act, including its implementing rules and regulations. Thus, Article 79 should not be considered an exclusive enumeration of the regulations that the Department may issue. II. THE REQUIREMENT OF GRAPHIC HEALTH INFORMATION UNDER AO 2010-0013 COMPLEMENTS SECTION 13(G) OF THE TOBACCO REGULATION ACT.
52.
It is Respondents’ main contention that AO 2010-0013 contravenes the
Tobacco Regulation Act since Section 13(g) thereof mandates that ―No other printed warnings, except the health warning and the message required in this Section [Section 13 of RA 9211], paragraph F, shall be placed on cigarette packages‖ and that any compliance with AO 2010-0013 will put Respondents at risk of penalties under Section 32(c) of the Tobacco Regulation Act. At the outset, it is significant that the Implementing Rules and Regulations of the Tobacco Regulation Act provide an exclusive enumeration of punishable acts.33 The only punishable act with regard to the health warnings is: 32
The Consumer Act provides: Art. 79. Authority of the Concerned Department to Provide for Additional Labeling and Packaging Requirements. - Whenever the concerned department determines that regulations containing requirements other than those prescribed in Article 77 hereof are necessary to prevent the deception of the consumer or to facilitate value comparisons as to any consumer product, it may issue such rules and regulations to: (a) establish and define standards for characterization of the size of a package enclosing any consumer product which may be used to supplement the label statement of net quality, of contents of packages containing such products but this clause shall not be construed as authorizing any limitation on the size, shape, weight, dimensions, or number of packages which may be used to enclose any product;
33
The Implementing Rules and Regulations of the Tobacco Regulation Act provides: Title VI – PENALTIES AND ENFORCEMENT PROCEDURES Rule I – Penalties Section 1. Punishable acts. – The following acts are punishable under the Act: 1.1. Smoking in designated public places where smoking is prohibited; 1.2. Non-compliance by the owners, proprietors, operators, possessors, managers or administrators of enclosed places open to the general public, public and private workplaces and other places not covered under Section 5 of the Act to establish smoking and non-smoking areas under Section 6 of the Act; 1.3. Sale or distribution of tobacco products by means of a vending machine or other self-service facility, unless the vending machine or similar contraption has a mechanism for age verification under Section 7 of the Act; 1.4. Non-compliance by the retailer to the requirements of Section 8 of the Act with respect to tobacco-related self-service displays or facilities, or to remove such non-compliant self-service displays or facilities;
32
―Non-compliance with the required health warnings on packages of tobacco products intended for sale in the Philippines under Section 13 of the Act.” As such, the implementing rules clearly show that the respondents’ claim that they will be exposed to criminal sanctions under Section 13(g) if they comply with AO 2010-0013 is erroneous. As to Respondents’ main contention that compliance with AO 2010-0013 exposes them to penalties under Section 32(c) of the Tobacco Regulation Act, this argument proceeds from the erroneous premise that the State’s power to regulate to tobacco regulation is confined only to the provisions of the Tobacco Regulation Act.
53.
It is ridiculous to construe the requirement of placing graphic health
information on tobacco products under AO 2010-0013 as a contravention of the prohibition under Section 13(g) of the Tobacco Regulation Act. It is well to remember that the state policy behind the law’s enactment and the thrust of the law includes: (1) protection from the hazards of cigarette smoke and tobacco use, (2) informing the public of the health risks associated with cigarette smoking and tobacco use, and (3) the regulation of labelling of tobacco products to achieve these ends.
53.1
The state policy as espoused by the Tobacco Regulation Act
is the protection of the populace from hazardous products and the regulation of the use, sale and advertisement of tobacco products in order to promote a healthful environment and protect the citizens from the hazards of tobacco smoke. The law provides: Section 2. Policy - it is the policy of the State to protect the populace from hazardous products and promote the 1.5. Sale of tobacco products to or by a minor under Section 9 of the Act; 1.6. Sale of tobacco products within one hundred (100) meters from any point of the perimeter of a school, public playground or other facility frequented particularly by minors under Section 10 of the Act; 1.7. Non-compliance with the required signage in point-of-sale establishments under Section 11 of the Act; 1.8. Non-compliance with the required health warnings on packages of tobacco products intended for sale in the Philippines under Section 13 of the Act; 1.9. Non-compliance with the required health warning in all tobacco advertising in mass media under Section 14 of the Act; 1.10. Non-compliance with the restrictions on tobacco advertising, print media advertising, outdoor advertising; cinema advertising; television and radio advertising; advertising in audio, video and computer cassettes/discs and similar medium; and advertising in the Internet under Sections 15 to 21 of the Act; 1.11. Non-compliance with the ban on advertisements; restrictions on tobacco promotions; and ban on naming rights under Sections 22 to 24 of the Act; 1.12. Non-compliance with the restrictions on sponsorships and ban on sponsorships under Sections 25 and 26 of the Act; and 1.13. Distribution of samples of tobacco products to minors under Section 27 of the Act.
33
right to health and instill health consciousness among them. It is also the policy of the State, consistent with the Constitutional ideal to promote the general welfare, to safeguard the Interests of the workers and other stakeholders in the tobacco industry. For these purposes, the government shall institute a balanced policy whereby the use, sale, and advertisements of tobacco products shall be regulated in order to promote a healthful environment and protect the citizens from the hazards of tobacco smoke, and at the same time ensure that the interest of tobacco farmers, growers, workers and stakeholders are not adversely compromised. [Emphases supplied] 53.2
The express purpose of the Tobacco Regulation Act
further underscores that the rationale for requiring health warnings on cigarette packs is precisely to (1) inform the public of health risks associated with cigarette smoking and tobacco use and (2) regulate the labelling of tobacco products. The law provides: Section 3. Purpose - It is the main thrust of this Act to: a. Promote a healthful environment; b. Inform the public of the health risks associated with cigarette smoking and tobacco use; xxx d. Regulate the labeling of tobacco products; [Emphasis supplied]
54.
An examination of the February 19, 2003 joint deliberations of the
Committee on Trade and Industry, Committee on Health and Committee on Public Information of the House of Representatives on the bills that formed the basis of the Tobacco Regulation Act readily reveals the intent behind the provision that is now Section 13(g) of the Tobacco Regulation Act: to keep a tight rein on tobacco product manufacturers by totally prohibiting them from exercising discretion with respect to the health warnings they can place on their products in possible circumvention of the purpose of the law. REP. BIAZON. The three (3) Warnings. And then, it was followed by the phrase ―or any other similar warning that the manufacturer may choose to place on the package.‖ I propose to delete the … xxx REP. BIAZON. (Continuing) I propose to delete the phrase – “or any other similar warning that the manufacturer may chose (sic) to place on the package” so that we would standardize the health warnings. xxx 34
REP. BlAZON. I would just like to reiterate my proposed amendment to delete line 2 and 3 of page 6 - " ... or any other similar warning that the manufacturer may choose to place ... " REP. VILLAR. Wala na iyon, oo. VOICES. Wala na. REP. BlAZON. Thank you, Mr. Chairman.34 [Emphases supplied] 55.
Furthermore, the requirements under the Tobacco Regulation Act and AO
2010-0013 are entirely separate and distinct, with marked differences as to content, size, location, and scope. There is actually no inconsistency or conflict between the two issuances -- they are complementary.
55.1
As to the content of textual health warnings versus graphic
health information: the Tobacco Regulation Act provides specific text-only warnings that make a reference to the general health dangers of cigarettes, tobacco and smoking:
"GOVERNMENT WARNING; Cigarettes are Addictive"; "GOVERNMENT WARNING; Tobacco Can harm your Children"; "GOVERNMENT WARNING; Smoking Kills."
55.2 information,
AO 2010-0013, on the other hand, deals with graphic health defined
as
―statements,
and/or
other
information
accompanied by related full-color pictures or pictograms which inform about the contents and substances, in descriptive form, of tobacco products as well as inform against health dangers and other problems related to tobacco products, tobacco consumption, exposure to tobacco smoke, or other effects of tobacco use.‖ It is clear, therefore, that health dangers is only a component of the health information required under AO 2010-0013. 55.3
As to the size and location of the textual health warnings
versus graphic health information: the Tobacco Regulation Act only requires warnings occupying no less than 30% of the bottom front panel and an additional warning occupying no less than 10% of the side panel on the prohibition of the sale of tobacco products to minors. AO 34
Joint deliberations of the Committee on Trade and Industry, Committee on Health and Committee on Public Information of the House of Representatives, February 19, 2003, pp. 33-36.
35
2010-0013, on the other hand, requires graphic health information to be placed on the upper portions of each tobacco product or package occupying no less than 30% of the front panel and 60% of the back panel (or all corresponding panels of the unit packet or package if in non-standard packaging) in a manner that ensures visibility.
55.4
As to the scope or coverage of the two issuances: the
Tobacco Regulation Act does not cover misleading descriptors and constituent emissions. The prohibition in Article 13(g) only restricts the form of the textual health warnings as contemplated in Section 13 of the Act to ensure compliance by tobacco manufacturers and avoid circumvention of the rule. The Tobacco Regulation Act does not prevent the Department from exercising the power to require other information or prohibit misleading descriptors on tobacco product packages.
56.
There is no presumption of conflict between laws. It is dogmatic that laws
must be harmonized and reconciled and conflict must not be read into them. Even where there is apparent conflict between a rule of international law and the provisions of the constitution or statute of the local state, the Supreme Court has ruled that efforts should first be exerted to harmonize them.35 57.
Assuming arguendo that an irreconcilable ―conflict‖ between Section
13(g) and AO 2010-0013 exists, statutory construction would dictate that the later law, Article 11 of the FCTC (2005), must prevail over the older law, the Tobacco Regulation Act (2003). 58.
The principle of lex posterior derogat priori, is applicable. The Supreme
Court applied this principle in Marubeni vs. Commissioner of Internal Revenue. 36 In that case, the court applied the special rate of corporate income tax for non-resident corporations rather than the higher rate provided by the Tax Code, pursuant to the Tax Convention that the Philippines signed with Japan.
In effect, the Tax Convention
altered the Tax Code by applying a lower tax in favor of Japanese corporations. In the same vein, the Tobacco Regulation Act was enacted two (2) years before the FCTC entered into force; hence the FCTC, as the later law, will prevail. In Secretary of Justice vs. Lantion, the Supreme Court stated: The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the 35 36
Secretary of Justice v. Lantion, G.R. No. 139465, 18 January 2000. 177 SCRA 500
36
principle lex posterior derogat priori takes effect -- a treaty may repeal a statute and a statute may repeal a treaty. 59.
Following the principle of lex posterior derogat priori, the FCTC, as
amplified by the Guidelines, should prevail over the Tobacco Regulation Act, being the latter law. Thus, Section 13(g) of the Tobacco Regulation Act has already been amended. The government, by adhering to the FCTC, has agreed to implement the provisions stated therein, including the additional measures imposed under Article 11 of the treaty.
III. THE DOH VALIDLY ISSUED AO 2010-0013 PURSUANT TO ARTICLES 7 AND 11 OF THE FCTC AND THE GUIDELINES IN IMPLEMENTATION OF ARTICLE 11. The FCTC has become part of the law of the land through transformation. 60.
To reiterate, the FCTC entered into force in the country on 4 September
2005 and became part of the law of the land through transformation, pursuant to Article VII, Sec. 21 of the 1987 Constitution, which states that ―No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.‖ The Supreme Court has pronounced that the ratification by the President and the concurrence of the Senate ―should be taken as a clear and unequivocal expression of our nation's consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.‖ 37
61.
Furthermore,
in
Guerrero
Transport
Services,
Inc.
vs.
Blaylock
Transportation Services Employees Association – Kilusan,38 the Supreme Court declared that a treaty has two (2) aspects – as an international agreement between states, and as a municipal law for the people of each state to observe. 62.
Dean Merlin Magallona, former Undersecretary of the Department of
Foreign Affairs and a renowned expert in international law, confirms the binding and enforceable nature of the FCTC in his ―Statement on the Enforceability of WHO Framework Convention on Tobacco Control as Part of Philippine Law.‖ A copy of the Statement is attached hereto as Annex F.
37 38
Bayan v. Zamora, G.R. Nos. 138570, 138572, 138587, 138680 & 138698, 10 October 2000. 71 SCRA 621 [1976].
37
63.
Dean Magallona states that no further action by Congress is required to
make a treaty, such as the FCTC, part of municipal law. The FCTC itself becomes national law through transformation, to wit: It is by Senate concurrence pursuant to this constitutional mandate that a treaty by the time it has become binding on the strength of its entry into force under its own provision that the WHO FCTC has been transformed as international law into national law. Nothing in the Treaty Clause requires the enactment of a congressional act as a pre-condition to becoming part of the law of the land. Under the Constitution, it is the treaty itself that becomes national law; by itself it is transformed into Philippine law, assuming that by its own provision it has already entered into force, as in the case of the WHO FCTC with respect to the Philippines as a Party to that treaty. Hence, under our constitutional system, treaties are self-executing; they become law without need of a legislative act to make it national law. [Emphasis supplied]
38
Articles 7 and 11 of the FCTC expressly sanctions the issuance of AO 2010-0013, an administrative measure of the competent national health authority. 64.
The core obligation of the Philippines as a party to the FCTC is to adopt a
choice of administrative, executive, legislative or other measures that will effectively implement its obligations pursuant to Articles 7 and 11 of the FCTC. Article 7 of the FCTC provides: 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. 65.
Dean Magallona confirms that the Philippines adopted AO 2010-0013 in
compliance with Articles 7 and 11 of the FCTC, which have become part of Philippine law through transformation. As explained further below, the legislative or administrative measures that are required by the WHO FCTC in Article 7 is not for the purpose of making the WHO FCTC part of Philippine law; rather, its purpose is to implement this Convention together with the obligations it provides, when it has already become part of Philippine law. In the case at bar, the Administrative Order in question has been adopted in compliance with the obligations under Article 7, together with the other provision of the WHO FCTC, after they have been transformed into Philippine law by virtue of the Treaty Clause of the Constitution in Section 21, Article VII, following the Senate concurrence of this Convention 66.
AO 2010-0013 expressly states that ―[t]hrough this Order, the Philippines,
through the Department, is taking a definitive step towards complying with its binding international obligations under the FCTC‖ in observance of the principle of pacta sunt servanda. The issuance of AO 2010-0013 is the manifestation of the Philippines’ exercise of its governmental powers as contemplated in Articles 7 and 11 of the FCTC, through the adoption of an administrative measure to carry out its obligations thereunder, in conjunction with the DOH’s mandate under the Consumer Act and the Administrative Code. 39
67.
In light of all of the above, a declaratory judgment from the Honorable
Court is sought to shed light on Section 13(g) of the Tobacco Regulation Act, in relation to AO 2010-0013, the FCTC and its Guidelines.
PRAYER
WHEREFORE, Petitioners respectfully pray that the Honorable Court make a judicial determination of the construction of Section 13(g) of the Tobacco Regulation Act in relation to DOH Administrative Order No. 2010-0013 and the Framework Convention on Tobacco Control and its Guidelines.
Other reliefs just and equitable under the premises are likewise prayed for.
Respectfully submitted.
Quezon City, 7 September 2010.
40
Copy furnished:
THE OFFICE OF THE SOLICITOR-GENERAL Amorsolo Street, Makati City
EXPLANATION
A copy of the foregoing Petition was served through registered mail rather than the preferred mode of personal service due to distance, lack of time, and lack of sufficient messengerial services.
PAUL ANGELO D. OBMINA
41
