KINGSTON, Jamaica — Some legislators reviewing the Tobacco Control Act, 2020 on Thursday expressed reservations about the $1 million maximum penalty being proposed for public officials who breach the interaction restriction provisions imposed by the law.

The Act includes a provision that restricts interactions between public employees and tobacco industry players.

Under the proposed law, public officials cannot accept or solicit contributions from the tobacco industry nor can they provide incentives, benefits, or preferential tax treatment to the industry. Public sector employees, under the legislation, are also prohibited from investing in the tobacco industry or related ventures; and they cannot establish or operate a tobacco business.

According to the Tobacco Control Act, 2020, violating any of these provisions is an offence, and the offender may face a fine of up to $1 million or up to three months in prison. It is however proposed to remove criminal sanctions and only impose civil penalties under the legislation.

Government member of the Joint Select Committee of Parliament on the Tobacco Control Act, Senator Kavan Gayle, during its meeting on Thursday, questioned how that high figure was arrived at, while another Government member Sherene Golding Campbell said she found the million dollars an excessive penalty given the offences.

“And if there’s no distinction between a corporate person and a human person, then I don’t know, I do I find it a little excessive for a public official. I think it can be punitive and be a deterrent without having to go up to that kind of maximum,” she said.

Legal consultant in the Health Ministry Albert Edwards, explained that this is the first of this type of penalty being proposed in this legislation, noting that it is intended to be sufficiently punitive without being excessive.

“It is not separating individuals from corporate offenders. So, $1 million was just proposed as a figure that would be punitive but not unduly excessive. And remember, it’s not a criminal penalty being proposed, [but] a pecuniary penalty,” he said.

He further explained that the provisions don’t only apply to public officials as there are some provisions that could apply to an entity in the tobacco industry.

Chairman of the committee, Health and Wellness Minister Dr Christopher Tufton, chimed in to say: “Exactly and for them it would certainly not be excessive to go to a million. Maybe for others, it may be so the courts can determine otherwise. I wouldn’t argue too much over it, to be honest with you,” he said.

Committee members eventually accepted the proposed $1 million maximum penalty.

In the meantime, on this same matter, committee members could not come to an agreement on fixed penalties for breaches of the interaction restriction provisions and the approach to be taken.

Edwards explained that a fixed penalty provision is being proposed where there is an option of a ticket type summons arrangement for these offenses. He suggested that the provision could allow for a 15-day compliance period for an infringement, similar to road traffic ticketing.

However, Solicitor General (SG), Marlene Aldred said that while she is aware of having a regulatory framework where there is a licensing regime, “I’m not sure it fits here…unless…a notice would’ve been given telling the person that they needed to comply with something. I can’t recall seeing that. I’m not sure it has a place here,” she said.

Edwards said he agreed with the SG that it may not apply in most cases, but argued that there is also provision for offenses that may be committed by an industry player in relation to the giving of gifts or acts of service, or contributions in relation to public officials, so there may be something that can be rectified, hence the proposal.

After ensuing discussions on the matter, the committee eventually agreed to that the relevant legal departments would have consultations on the issue of the fixed penalty for the interaction restriction provisions and what notice should be given in terms of compliance, and the activities to be remedied.

When passed, the Tobacco Control Act, 2020, which was tabled in Parliament by Dr Tufton on December 1, 2020, will provide a comprehensive legislation that restricts all forms of tobacco advertising, promotion and sponsorship.

It will also protect people from inducements to use tobacco products, protect children and promote dissemination of information about the addictive effects of tobacco use.

The new Bill is also intended to address gaps in the current legal framework and will make Jamaica fully compliant with the World Health Organization Framework on Tobacco Control.