THE Court of Appeals (CA) has affirmed a ruling by a trial court which declared as unconstitutional an ordinance being implemented in the City of Balanga, Bataan, imposing a total ban on the use, sale, distribution and advertisement of tobacco products.
In a 13-page ruling penned by Associate Justice Jane Aurora Lantion, the CA’s Special 16th Division held that the City Council of Balanga transgressed the jurisdiction of Congress by passing Section 5 of Ordinance 09 which expands the scope of the prohibition on the use, sale, distribution and advertisement of tobacco product as defined under Sections 5, 6,10 and 22 of Republic Act (RA) 9211 or the Tobacco Regulation Act of 2003.
Sections 5,6,10 and 22 of RA 9211 ban smoking only within a specific number of public places, and prohibits sale and advertisement of tobacco products in limited circumstances.
The ordinance took effect in 2017 but its implementation was halted after the Regional Trial Court of Balanga City, Branch 93 issued the assailed ruling on July 5, 2018.
In the said ruling, the trial court branded the ordinance as “unreasonable and discriminatory” and tantamount to restriction or prohibition of free trade.
The appellate court noted that the ordinance prohibits not only the act of smoking in specified public places but also the acts of selling, distributing, using, advertising and promoting tobacco products—not only within the University Town but as far as a 3-kilometer radius, which practically covers the entire developed portion of the city.
It noted that under RA 9211, the act of smoking is absolutely prohibited in specified public places, such as centers of youth activity like schools and recreational facilities for minors, elevators and stairwells, areas that are fire hazards, inside buildings, hospitals and medical clinics and establishments, public transportations, conference halls and food preparation areas.
The law also provides that the prohibition on the sale or distribution of tobacco covers only 100 meters from any point of the perimeter of schools, public playgrounds or other facilities frequented by minors.
“Clearly from the foregoing, the City Council of Balanga has overstepped Congress by passing an ordinance which imposes more prohibited acts than those specified under national statute [RA 9211],” the CA explained in denying the petition for review filed by the Balanga City officials of the 2018 ruling of the trial court.
“Therefore, the challenged Ordinance should be struck down as invalid for being ultra vires [an act done without authority] since it contravenes RA 9211,” it declared.
Invoking WHO
The appellate court did not give weight to the claim of its local officials that the ordinance is consistent with the pronouncement of the President’s policy against smoking and in compliance with the State’s obligation under the World Health Organization’s Framework Convention on Tobacco Control (WHO FCTC), to adopt a comprehensive range of measures designed to reduced tobacco use and exposure to tobacco smoke.
“While the respondents-appellants claim that the challenged Ordinance was in conformity of the WHO FCTC, they cannot simply disregard the provisions of RA 9211 for the plain reason that in this country the latter law governs,” the CA said.
“Hence, between WHO FCTC and RA 9211, it is the latter law which should prevail. Therefore, the respondents-appellants in drafting the challenged Ordinance should have taken into consideration the provisions of RA 9211,” it pointed out.
The WHO FCTC was signed by President in 2003 and concurred in by the Senate in 2005.
Although the ordinance was compliant with WHO FCTC, RA 8749 or the Philippine Clean Air Act of 1999 and Executive Order 26, Series of 2017, the court noted the said laws do not totally ban smoking and selling of tobacco products.
The case stemmed from the petition for prohibition filed by the tobacco companies under its umbrella organization, Philippine Tobacco Institute (PTI).
PTI members include Philip Morris Philippines Manufacturing Inc., Philip Morris International Fortune Tobacco Corp., Associated Anglo-American Tobacco Corp., Filharvest Manufacturing Inc., Fortune Tobacco Corp., GB Global Exprez Inc., GB-BEM Cigarette Co. Inc., La Suerte Cigar & Cigarette Factory, JTI Philippines Inc., JTI Asia Manufacturing Corp. and Mighty Corp.
The petitioner ran to the courts after the City of Balanga refused to issue business permits for the sale and distribution of tobacco products in the city pursuant to its ordinance.
The ordinance, according to the petitioners, has substantially diminished their profits, with one member losing around P15 million a month since its enforcement.
Image credits: Alysa Salen