Anna Bueno and Ulysses Dorotheo
New laws often build upon and strengthen existing laws, but in the midst of a pandemic when health-protective measures should be prioritised, retrogressive bills seeking to loosen existing restrictions on heated tobacco products (HTPs) and electronic nicotine/non-nicotine delivery systems (ENDS/ENNDS) have advanced in Philippine Congress, despite firm objections from the country’s health and medical communities led by the Philippine Medical Association, Philippine College of Physicians, and Philippine Pediatric Society, as well as public interest lawyers and youth groups.
In 2019, Philippine Congress amended the National Internal Revenue Code to impose and raise tax rates on HTPs, and ENDS/ENNDS; however, because Republic Act (RA) 11346 and RA 11467 imposed much lower tax rates on HTPs and ENDS/ENNDS than on cigarettes, safeguards to protect public health, particularly youths, were included in these amendments: (a) prohibiting sales to non-smokers and anyone below 21 years of age; (b) restricting flavours to tobacco and plain menthol; (c) mandating the Food and Drug Administration (FDA) to regulate the manufacture, importation, sale, packaging, advertising, and distribution of these products; and (d) requiring graphic health warnings (GHW) on packages in line with the GHW Law (RA 10643) that was implemented in 2016 and prescribes 12 images to be printed on a rotating basis on all product packages.
As a concession to the industry, these provisions will only come into force in May 2022, but instead of preparing to comply with the law, the industry got a court injunction to stop the Department of Health and FDA from implementing regulations on HTP and ENDS/ENNDS and has been aggressively lobbying for a more industry-friendly law to repeal and pre-empt those public health safeguards before they can even be implemented.
In May 2021, the day after the Lower House approved House Bill 9007 on third and final reading despite strong opposition from health advocates in the House, Senator Ralph Recto, a smoker turned vaper and known industry ally, sponsored the Senate version of this pro-industry bill (Senate Bill 2239), which was approved on second reading yesterday, 13 December 2021.
Completely disregarding the existing laws that already set a regulatory regime for these products and the repeated and pointed opposition of medical organizations, these bills seek to make HTPs and ENDS/ENNDS more widely available by lowering the minimum age of access from 21 years to 18 years, allowing sales to non-smokers, allowing online marketing and sales, allowing multiple flavours that are attractive to teens, replacing the FDA with the industry-friendly Department of Trade and Industry as the regulatory agency for these harmful products, and limiting the placement of GHW to a single message on nicotine as an addictive substance. As with cigarette regulation in the Tobacco Regulation Act of 2003 (RA 9211), we are seeing a replay of the industry tactic of agreeing to regulations that favour trade at the expense of public health.
Under the guise of balanced regulation, HB 9007 and SB 2239 proponents claim that regulation of HTPs and ENDS/ENNDS should not be stricter than that for reportedly much more harmful cigarettes, as stipulated in RA 9211. They completely ignore that RA 9211 is outdated and long overdue for amendment because it is non-compliant with the WHO Framework Convention on Tobacco Control (FCTC) and even violates it by including tobacco industry representatives in public health policymaking. Instead of amending RA 9211 to raise to 21 years the minimum age of access for cigarettes, as proposed by veteran tobacco control champion Sen. Pia Cayetano and recommended by the medical community (to prevent nicotine addiction and harm to the developing adolescent brain) or banning cigarette flavours, vaping proponents have chosen to lower the bar for HTP and ENDS/ENNDS.
As per the 2019 Philippine Global Youth Tobacco Survey, 14.1% of 13-to-15-year-olds are already current ENDS users, compared to 10%, who are current cigarette smokers. In addition, 24.6% have ever tried ENDS, more than double the 11.7% who had ever tried in 2015.
In stark contrast, neighbouring Singapore, whose smoking prevalence dropped to 10.1% in 2020, gradually increased its minimum age from 18 to 21 over the past 3 years, banned HTPs and ENDS as a preventive measure, maintains a comprehensive ban on online tobacco advertising, and enforced standardised tobacco packaging in 2020 under the helm of its Ministry of Health.
On its final reading on 16 December 2021, the bill was approved by a majority vote of the Senate and will now be harmonised with the House version by a Bicameral Committee before being sent to the President for his signature. The only thing that can stop e-cigarette and HTP laws from being relaxed now would be a Presidential veto.
Anna Bueno JD, is a writer, researcher, and lawyer at ImagineLaw in Metro Manila, Philippines.
Ulysses Dorotheo MD, is Executive Director at the Southeast Asia Tobacco Control Alliance (SEATCA)