JCC warns key provision of Tobacco Bill could be unconstitutionalSunday, December 05, 2021
KINGSTON, Jamaica — The Jamaica Chamber of Commerce (JCC) has warned that a key provision in the Tobacco Control Act, 2020 could be unconstitutional.
The chamber has singled out Clause 9 (3) B and C which prohibits the investment in tobacco and related industries by civil servants.
“This could mean that civil servants could be barred from investing in some of Jamaica's leading manufacturing and distributing companies if these companies were selling tobacco products,” the JCC noted. Its concern is contained in its recent written submission to the joint select committee of the Parliament examining the tobacco bill.
“The prohibition on investment in the industry may be unconstitutional,” the JCC stated. It argued that “The Charter of Rights stipulates that for same to be done, it must be demonstrably justified in a free and democratic society. Prohibiting civil servants from holding such security is not demonstrably justified”.
The JCC also pointed to clause 19 (1) of the bill which prohibits the sale of tobacco in public places.
A public place is defined in the interpretation section of the bill as “…any structure, facility, place of assembly, or other place, available to be used collectively by the public, including a government office and a space or a building of any type regardless of ownership of, or right of access to any such place, office, space or building”.
“The inclusion of 'public place' will prohibit the sale of tobacco and related products from being sold in all stores, shops, supermarkets, bars amongst other places,” said the JCC.
It noted further that “the bill establishes strict guidelines on which entities are technically prohibited from selling tobacco products and how others ought to operate”.
Said the JCC: “The bill appears to be written to deal with companies and persons that sell only tobacco products. There are some companies that handle multiple product lines including tobacco products. We are of the opinion that the bill as written will create significant challenges for these companies with multiple product lines.”
The influential JCC also noted that clause 24 and clause 1 (e) (j) (k) (n) of the fourth schedule disrupts the relationships of key business partners by prohibiting gift giving, the offering of discounted products, retailer incentives, and the offering of financial support to venue operators.
“The distributor, wholesale and retail model is one where discounts are a part of doing business,” said the JCC while pointing out that quantity purchases have cost savings in order processing and delivery.
It said these savings are sometimes passed on to customers as those customers who pay cash rather than take credit sometimes gets discounts.
Meanwhile, the JCC expressed concern over the powers reserved by the responsible minister as outlined in clause 4 of the bill, specifically as it relates to the regulation of design features; the labelling, packaging, sale, distribution and advertising control; testing methods and standards; prohibition of constituents and ingredients.
“We are of the considered view that the powers of the minister outlined in the Act are outside of a minister's remit,” the JCC said.
“Some regulatory measures should not be performed by ministerial fiat but ought to be mandated by the Parliament; as the constitution dictates that the passing of laws is the prerogative of Parliament and not a minister.
“Consider the possibility that one day, Jamaica could have a Minister of Health that is pro-tobacco. The consequences of this could be far-reaching,” said the JCC.