Little enforcement of Tobacco Control Act douses its relevance
Up in smoke!
It has existed on Jamaican law books for three years now, but the one-time much heralded Public Health Tobacco Control Regulations Act 2013, seems to have virtually gone up in smoke.
While police statistics on the number of offenders under the Act were not immediately available, checks made by the Jamaica Observer showed that despite clear violations daily, only two persons have been prosecuted since the Act was promulgated on July 15, 2013, almost three weeks after it was announced by then Minister of Health Dr Fenton Ferguson during the Sectoral Debate in Parliament on June 25, 2013.
It was still unclear if there has been a conviction, as a request made of the Statistics Department of the Jamaica Constabulary Force is still pending.
The current regulations make it illegal for persons to smoke in areas designated as specified public places, which include all enclosed places accessible to the public; public transportation; workplaces; Government-owned and occupied buildings; health facilities including pharmacies; sports and recreational facilities for use by the public; educational institutions; areas specifically for use by children; and places of collective use such as bus stops.
Fines range from $50,000 and/or imprisonment for three months for first-time offenders; $500,000 for a second breach, to $1 million for organisations and institutions in violation.
Dr Ferguson, who later became Minister of Labour and Social Security, remains Member of Parliament for St Thomas Eastern following the February 25 General Election in which his People’s National Party was relegated to the ranks of the Opposition.
Despite going up against strong forces that were against the ban on smoking in public places, many of them high-ranking officials in his party, Dr Ferguson managed to get the Act passed. Now, he laments the lack of enforcement at a time when there seems to be a free-for-all, and blatant disrespect for the law, which had, among other things as its primary focus, the protection and preservation of human life.
"As it relates to enforcement and the police, in the early days, because we know there was a need for public education, there was a discussion with the police high command. We couldn’t tell them not to prosecute, but they were lenient in not making any immediate moves … they were flexible in terms of prosecution and therefore, during the period we were making some minor amendments to the initial Act. But since then, the police have not been aggressive in their pursuit of offenders," Dr Ferguson told the Jamaica Observer.
"There were some bars and clubs all over Jamaica that, from day one, have been in violation and I want to take the opportunity to remind them that the fine in those institutions for owners is one million dollars. It is a massive fine. So certainly, if the police were to act, the first man who gets licked with a million dollars, it would send the signal to those who frivolously violate the law that the regulations are serious, and I think the task now for Minister (Dr Christopher) Tufton is to continue the cause," Dr Ferguson went on.
Jamaica was a signatory to the Framework Convention on Tobacco Control 2003, resulting in the Government ratifying the treaty in 2005.
It was the first public health treaty that the World Health Organization would develop, and countries had an obligation to adhere to it.
Apart from Dr Ferguson, former Minister of Education Ronald Thwaites, and later on, young Member of Parliament Dr Dayton Campbell, became strong advocates of tobacco control regulation, as well as a comprehensive Bill to be pushed through Parliament, following an initial attempt by former Minister of Health Ruddy Spencer, whose efforts were drowned by forces on his political team.
According to Dr Ferguson, the move to get the Act in force was a Herculean task.
"After almost 18 months my team was able to look at the Public Health Act, which gave the minister of health certain powers that would not require even taking the regulations to Parliament," he said.
"You will well remember when I came with the regulation, the pushback from some members of parliament, the pushback from some members of the Administration... because the truth is that the tobacco industry itself is very powerful and the users, many of whom know of the dangers, are prominent people. It is also one of the better stocks with value on the stock market. So with the interest between industry, users, and investors, the Government and I would have been up against a significant pushback. I was aware that this would happen, because in every country where these regulations have been implemented, we have had pushbacks, with some ministers becoming casualties.
"But when I looked at the evidence relative to tobacco — six million people die annually from tobacco use, another 600,000 from passive use — just being in the presence of users — when you look at the National Chest Hospital, 70 per cent of the lung cancer cases there are tobacco-related. And of all the cases of lung cancer, 90 per cent of them are chronic smokers. So there is a clear relationship between lung cancer and tobacco use, even as tobacco causes many other types of cancer, and what it also does is that persons with other diseases, it also cuts their life expectancy," Dr Ferguson said.
"So the team and I were convinced about the evidence, and so this is why when the regulations came and the discussions, in spite of the voices that were out there, the survey that was done by the National Council on Drug Abuse showed that even with the voices, it represented a minority. The survey showed 83 per cent of Jamaicans supported the tobacco regulations. Jamaica was the 45th country to have promulgated banning smoking in public spaces and it is one of the conventions that has had the best response from nation states — over 180 countries have responded to the framework convention," Dr Ferguson told the Sunday Observer.
Health officials have said that cigarettes comprise over 7,000 ingredients, 69 of them defined as cancer-causing.
Nicotine, one of the substances found in cigarettes, is medically proven to be even more addictive than cocaine.
Dr Ferguson maintains that when the Act became law, it was not made so for smokers to kick the habit abruptly, but to educate the public, consistently, to the dangers of tobacco use, for them to make their minds up.
Among the regulations was for cigarette packs to carry graphic health warnings on 75 per cent of the packaging, later reduced to 60 per cent.
"The regulations that we brought forward in 2013 are regarded as one of the better set of regulations relative to what we were able to do, because we were able to focus on banning in public places, specific areas outdoors like places that children play, bus stops, public convenience, sporting facilities; and we had gone as far as in the home but we had to back off because it would have been difficult regarding compliance," Dr Ferguson said.
"But we did emphasise that where you had your household helpers and caregivers that there was a need for public education. And even for persons in their private vehicles they were allowed to smoke, at the same time we were very clear that vehicles with children is something that we would have watched and determined what would have been the next step.
"So the regulations, when they came, dealt with three critical articles in the convention – Article 8 which spoke to the banning in public places; Article 9 that spoke to the ingredients in terms of cigarettes; and Article 11 that spoke to graphic health warnings," Dr Ferguson said.
Despite the efforts of the Ministry of Health to have a clean environment, the main corporate entity to feel the brunt of the passage of the Act — Carreras — emerged with guns blazing.
Carreras filed a lawsuit against Ferguson, claiming that he exceeded his powers by using the Public Health Act to push through the regulations. The company later withdrew the suit after meeting with then Attorney General Patrick Atkinson.
A year later, the company said that profits had fallen, and questioned whether or not it could continue to reach out to the many people that it had supported with sponsorship over the years.
Confirmation of the drop in sales came from Corporate and Regulatory Affairs Manager at Carreras Chris Brown, an ally of former Minister of Finance Dr Peter Phillips. Brown was once chairman of the board of directors of Caymanas Track Ltd, and a one-time aspirant for Member of Parliament in St Mary South Eastern.
But the Ministry of Health also counter-claimed at the time that it was spending less to treat patients with respiratory ailments at public hospitals, in particular the National Chest Hospital.
Additionally, Ferguson insists that the harm that occurs from the sale of tobacco products cannot be healed by the generosity of some organisations involved in the industry.
"The tobacco industry is a well-established, multi-billion, or multi-trillion one. There are big multinationals involved, so what they do is give scholarships and do things in the community that give the impression that they are good corporate citizens," he said.
"But basically, for every dollar you are getting from the industry you are losing probably about $7 in terms of the impact on the health sector. While the tobacco companies will come and say they are paying our taxes in advance and they are good corporate citizens, what industry players do, relative to the health sector impact, is about $7 between the cancers and all the other things.
"I was the minister of health who banned smoking in public places and was strident about the risk-related factors. That’s why I also came with a dietary guideline to deal with unhealthy food and a guideline for physical education and we were moving swiftly towards an alcohol policy," he said.
"I am making the point bluntly because it is risky business for any political leader. That is why it has not happened in the more than 180 countries that have signed on. Prime Ministers have been impacted. I’m not sure of the figures now, but it can’t be more than 50 out of the 180 that have actually ratified the convention. So it is risky for Tufton. Some ministers will hide and meet with the tobacco industry and I have picked up that this has happened. It’s a dangerous thing to do because there is no compromise. While you can even work with the drink responsibly campaign, there is nothing about tobacco that you can say as a public health thing... that I will accommodate one cigarette a day instead of a pack, because the one is still dangerous to your health and family," Dr Ferguson said.
Dr Tufton, the health minister, in e-mailed correspondence to the Sunday Observer in responding to a request to comment on the matter, promised to give the Government’s latest position on the Tobacco Control Regulations Act, and state the ministry’s stance on enforcing it.
In April 2014, Jamaica won two awards for introducing tobacco laws. The Health Foundation Latin American Conference on Tobacco or Health, held in San Jose, Costa Rica saw Jamaica being recognised "for protecting the health of all Jamaicans with strong regulations against tobacco."