JAMAICANS may soon be forced to ask for a list of available tobacco products whenever they feel the urge to inhale.

Lawmakers on Tuesday, during a sitting of a joint select committee (JSC) of Parliament examining the Tobacco Control Act, 2020, accepted a proposal for a total ban on the promotion and advertising of tobacco products.

This would mean that wholesalers and retailers would not be allowed to display posters of tobacco products or even display them on shelves or in cases.

The JSC, chaired by Minister of Health and Wellness Dr Christopher Tufton, has been meeting for several years — its deliberations interrupted by the COVID-19 pandemic. It held its last meeting on Tuesday.

While members agreed to sign and submit a final report to the clerk to the Houses of Parliament, they acknowledge that it will be the Parliament convened after the upcoming general election which will table and debate a Bill containing the amendments they have recommended.

Clause 24 of the proposed Bill speaks to a tobacco advertising, promotion, and sponsorship ban and during Tuesday’s sitting committee members deliberated at length over whether the ban should be comprehensive or restrictive.

“Under a comprehensive ban all advertising, promotion, as well as sponsorship, without exception, would be banned,” Kadian Birch, chief programmes officer in the Office of the Permanent Secretary in Ministry of Health and Wellness, told the JSC.

This prompted Tufton to question if the ban would extend to cigarette products on sale inside glass displays at outlets such as service stations.

“It’s really a point-of-purchase kind of thing. It’s really on the box as opposed to anywhere else. Would that be considered a partial ban or a full ban?” questioned Tufton.

In response Birch said: “In a case like that the display of the tobacco product or relevant product at retail point-of-sale would be banned. They would have to keep it away from public view.”

She said the vendor could be allowed to have a list of the tobacco products available for sale but not have it on public display.

Government Senator Kavon Gayle wanted a distinction to be made between the advertising, promotion, and marketing of the product versus its display.

But Birch emphasised that a comprehensive ban means there is no display of the product wherever it is being sold.

At that point Tufton stated that in such a scenario, “there is less of an incentive to purchase if the product was not on display”.

Opposition member of the JSC Dr Morais Guy, a medical doctor, pointed out that the intent of the committee is a total ban on cigarettes or tobacco use eventually.

“It is basically supporting the point or the position that we would like to have eventually, where there is no use of tobacco or tobacco products, so I do not have a difficulty in respect of this having a total ban [on advertising]. That should be acceptable,” said Guy.

Government Senator Dr Saphire Longmore, also a medical doctor, stated that while there could be a constitutional challenge in the event a total ban becomes law, the recommendation was on sound footing.

“I think we should all bear in mind, if the challenge were to come, we’re speaking about something [addiction linked to smoking] that removes free choice. So in all aspects of consideration of the Oakes Test …this substance [tobacco] removes freedom of choice because of the nature of the addiction…” said Longmore.

The Oakes Test is a legal framework established by the Supreme Court of Canada in the case R v Oakes (1986) to determine if a Government’s infringement on a charter right is justifiable.

The test is used when a law, policy, or action is found to violate a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms. The test assesses whether the limitation on the right is reasonable and can be demonstrably justified in a free and democratic society.

Dr Longmore, a psychiatrist, argued that the demonstrated addiction and the results of the addiction are what the individual faces.

“Oakes Test and all… did not consider, in this case, the addictive nature that removes free choice,” she emphasised.

For her part, Solicitor General Marlene Aldred highlighted that since clause 25 (1) of the Bill prohibits all advertising and promotions, “it is possible that the list [of tobacco products] could also not be displayed”.

However, she noted that “it would not stop the seller from having a list which is kept, let’s say behind the scenes, that can be produced and which will identify the product and the price. Based on this prohibition, I’m not convinced that list could also be on display”.

Tufton argued that “the issue around freedom of choice is overtaken by the addictive nature of the product and the precedent that has been established in other jurisdictions around making that point and providing evidence to support that fact”.

At the end of the deliberation the JSC members agreed to propose a comprehensive ban on the advertising of tobacco.

TUFTON… the issue around freedom of choice is overtaken by the addictive nature of the product

GUY… the intent of the committee is a total ban on cigarettes or tobacco use eventually

Displays such as this one would be banned if Parliament accepts the proposal of the joint select committee.