Entornointeligente.com / Having banned cigarette smoking in public places seven years ago, it’s surprising that it has taken so long for Jamaica to move towards an expanded regulatory framework for the tobacco industry, so as to bring the island into greater compliance with a UN convention aimed at limiting tobacco use.
The delay notwithstanding, the bill before Parliament is likely to have substantial national support, including, in principle, from this newspaper. However, like the lawyer, Bert Samuels, we are concerned that some of the provisions that may have gone too far in attempting to restrict the engagement of persons employed in public bodies may have with the tobacco industry, thereby infringing people’s constitutional rights. Stated differently, if challenged, the Government may be hard-pressed to prove that the restrictions meet the standard of being “demonstrably justified in a free and democratic society”.
Additionally, the Government will probably have to liquidate or justify its continued holding of shares, via a state entity, in the island’s big cigarette distributor, Carreras Limited.
Up to now, the ban on smoking in public places and the other legally specific proscriptions on the sale and use of cigarettes and other tobacco products, though having received the imprimatur of Parliament, were largely on the basis of regulations gazetted by the health minister, under the authority of the Public Health Act. What is now contemplated will expand and cement the regulations in a specific law, as was promised in 2015 by the former health minister, Fenton Ferguson. The measures include formalising a ban on almost any form of cigarette advertising and establishing a structured regulatory system for the tobacco sector.
Given the global trends, most of the proposals are not controversial, but perhaps for some of the limitations to be placed on public servants who are not directly engaged in the regulation, or oversight, of the tobacco industry.
The bill, at Section 8(1), says that a person “who acts on behalf of or benefit from a public body which has responsibility for the tobacco control shall not, whether in the person’s individual capacity or otherwise, interact in any manner whatsoever with a person in the tobacco industry in furtherance of business activity, except where it is strictly necessary to do so in order to ensure the effective regulation of the tobacco industry, a tobacco product or a relevant product”.
EXTREMELY WIDE NET That, on the face of it, seems reasonable. But matters could become a bit hairy with a demand that someone seeking employment with a public body must disclose any “current or priority occupational activity or any other affiliation with the tobacco industry” to determine potential conflicts of interest. This appears to cast an extremely wide net, given that a public body is defined in the bill as a department of government, statutory bodies or authorities, a government company, or an executive agency. The requirement would apparently apply anywhere, at any level, if someone applied to work in government, even if the department, authority, agency or company to which the person applied to work has nothing to do with the regulation of the tobacco industry.
Additionally, under the proposed law, persons employed by public bodies will be prohibited from entering business agreements and endorsing the activities of tobacco companies, or solicit or accept contributions from them. In the extreme, that solicitation/acceptance might be considered to extend to, say, scholarships provided to the minor children of public-sector employees. Public servants would also be barred from manufacturing or selling tobacco and related products as well as from investing “in the tobacco industry or related veneers”.
The latter requirement, it seems, would cause the National Insurance Fund (NIF), the investment arm of Jamaica’s National Insurance Scheme (NIS), to have to divest the more than 214 million shares – 6.2 per cent – it held in Carreras up to March. That stake made the NIF Carreras’ second-largest shareholder, after British American Tobacco (nearly 71 per cent), Carreras’ ultimate parent. NIF’s stake would have entitled it to around J$192.6 million of the J$3.1 billion in dividends and distributions made during the financial year.
In the circumstances, the Government should ensure that the tobacco bill has the benefit of a review by a joint select committee of Parliament, which must receive briefs and hear evidence from interests groups, those focused on the Constitution and protecting the constitutional rights of individuals. For while most of its provisions will be embraced, some the issues may be skirting close to a collision with Section 13 of the Constitution. There may have to be significant tweaking of the language in the bill.
LINK ORIGINAL: Jamaica Gleaner