Kathleen de Leon and Jacky T Sarita
In global tobacco control, the Philippines is known as a particularly challenging environment due to long-standing tobacco industry influence. Over 15 years ago, it was termed the “strongest tobacco lobby in Asia”. The 2019 Southeast Asia Tobacco Industry Interference Index ranked the Philippines fifth among nine nations in the region; however it was one of only two countries where tobacco industry interference has increased every year since the first index published in 2015. Despite this, it appears the tide has begun to turn. Progress made despite such unlikely odds may offer valuable lessons elsewhere as tobacco control progresses toward an endgame paradigm.
Balanga City in Bataan province has positioned itself as a leader of advancing the tobacco endgame through the passage of two policies.
In March 2016 policy makers passed City Ordinance No. 09 of 2016, which amended the Comprehensive No Smoking Ordinance (CNSO) of Balanga City to ban the sale, distribution, use, advertising and promotion of tobacco products and/or Electronic Nicotine Delivery Systems (ENDS) within three kilometers of the university town. The affected areas include 95% of Balanga City, essentially resulting in a complete ban.
In September 2016, policy makers passed The Tobacco Free Generation (TFG) End Game Strategy Ordinance of Balanga City, Bataan. This policy banned sale and use of all tobacco products and ENDS for those born on or after January 1, 2000, thereby creating a tobacco-free generation. This feat was with support from Dr. Koong Heng Neng, the founding director of Tobacco Free Generation International. Accompanied by youth with experience supporting TFG in Singapore, Dr. Koong engaged the youth of Balanga City and rallied support for TFG. In passing the TFG ordinance, Balanga City became the first in the world to actualize the TFG idea first proposed by Khoo et all in 2010 and detailed by Berrick in 2013 through policy, an unprecedented advancement towards the tobacco endgame in the Philippines.
Legal Challenges
It did not take long for the Philippine Tobacco Institute (PTI), a tobacco industry trade organization, to take action against Balanga City. On July 21, 2017, PTI filed a Petition for Prohibition against Balanga City on the grounds of preemption, alleging prohibitions delineated in the CNSO supersede and therefore violate national regulations established by the Tobacco Regulation Act of 2003.
The following year, as the first of the tobacco-free generation of Balanga City turned 18 and were of legal age, PTI filed a Petition for Declaratory Relief against the city’s TFG policy on similar grounds. The petition asserted the TFG policy superseded the national Tobacco Regulation Act of 2003 by banning the sale, use, and distribution of tobacco products and ENDS to adults, all of which are permitted under national policy.
In response to these challenges, Balanga City has argued that according to national law or the Local Government Code of the Philippines of 1991, it is within local government’s rights to govern as they see fit for the purposes of the general welfare of their constituents. They also argue that as a party to the WHO Framework Convention on Tobacco Control (FCTC), the Philippines is beholden to the FCTC rather than national policy alone. Since both the CNSO and TFG policies of Balanga City follow directives of the FCTC, it is within the city’s right to implement both policies.
Currently, the lower courts have ruled in favor of the PTI. Balanga City is contemplating exploring legal remedies to defend its local autonomy to develop public health policies promoting general welfare.
Despite these challenges and limited resources, Balanga City has pushed forward implementing both policies with sustained public support. Since the lawsuits, Balanga City has also passed new legislation, The New Comprehensive Tobacco and Nicotine Regulation for the Protection of Health And Welfare Ordinance of Balanga City, which consolidates CNSO and TFG regulations. At the time of publication, PTI has not yet filed suit against the New Comprehensive Policy. Policy makers from Balanga City have also begun collaborating with those of Bataan province to establish stricter, more uniform policies across the province.
Global Implications
As both lawsuits progress through the Philippine judicial system, they inch closer toward the Philippine Supreme Court. The outcome of both cases carries substantial implications for the future of tobacco control and the endgame paradigm.
At stake are the issues of preemption and the question of local government autonomy to pass and implement policies such as TFG, which are critical to advancing a tobacco endgame paradigm in the Philippines. If the CNSO and TFG policies of Balanga City are deemed unconstitutional on the basis of preemption, similar local tobacco control policies such as that advanced by President Rodrigo Duterte as mayor of Davao City would also be unconstitutional. If the court rules in favor of Balanga City, however, such policies would be allowed to stand. In accordance with the city’s defense, the FCTC would also be acknowledged as the basis of tobacco control policy in the Philippines.
Kathleen de Leon is a doctoral nursing health policy student at the University of California, San Francisco. Attorney Jacky Sarita is the Managing Director of HealthJustice Philippines.