THERE is discontent among lawmakers with the severe penalties public sector workers at all levels, including low-level staff, could face if they engage or invest in activities in the tobacco industry, under proposed offences in the 2020 Tobacco Control Act.

Opposition Senator Janice Allen argued that “fundamentally, I have my own reservations with the proposal that persons in the public sector shall not invest in the tobacco industry. If I have my portfolio on the stock market and have that opportunity, my view is that I should be able to invest [if] it’s not impacting the daily work”.

Government Senator Kavan Gayle pointed out that the scope of people who could find themselves in trouble was too wide, and that individuals could, in fact, unwittingly end up breaching the law.

“If you’re employed to a public body and you want to invest and you go to one of those investment brokers, that broker is going to make a determination as to where to apply such funds. It may happen that such funds be applied to that entity which is listed on the stock market unknown [to the worker], but he would be liable to the action taken where he would have invested in the tobacco industry, or any related ventures,” he reasoned.

The senators raised the concern at Tuesday’s meeting of the joint select committee reviewing the Bill. The concerns arose from the provisions in Section nine of the Bill, which speaks to conflicts of interest in relation to public sector workers.

Senator Gayle said other categories of workers, such as clerical and ancillary staff, could similarly commit an offence with the sale of tobacco products in the course of a micro business being operated to supplement their salaries.

“Again, what this is driving at is, if they have that little shop that sells cigarettes, they would be exposed to liability. From you start with persons employed with a public body it involves every employee from top to bottom. Do we really want to expose public sector employees to [these fines] or do we want to define it in a certain way where it is more targeted?” he asked.

The section proposes to bar public sector workers from entering into partnerships of any kind with the tobacco industry, including taking part in any related activity. It also prohibits direct or indirect financial contributions, or acceptance of any proposals or offer of assistance from the industry, towards the development or implementation of any tobacco control policy. A breach could attract fines of up to $1 million, or three months in prison. There is also a proposal on the table to specify that Members of Parliament are excluded from engaging in such activities.

Committee chair, Health and Wellness Minister Dr Christopher Tufton said he did not take issue with the offence itself being applied to all employees, as no signal should be sent that the law and concerns around tobacco consumption are being watered down. However, he said the penalties should not be draconian, and should instead fit the type of breach.

“Let’s be very clear — I’m not going to give any indication that because you’re ancillary staff you should not abide [by the law] but I do agree that to charge a million dollars in this context may be beyond punitive. It could actually be cruel and unusual punishment,” he said.

“We have to be very explicit around the avoidance of conflict of interest, and in any way, shape, or form suggesting that it is okay to either consume or deal with, or in facilitating the consumption of the product,” Dr Tufton argued.

He said that the distinction could be made in penalties between those who are in a position to influence the industry, and have more to gain or lose.

Pan American Health Organization representative to Jamaica, Ian Stein explained that the guidelines under the World Health Organization (WHO) Framework Convention on Tobacco Control has been consistently broadly applied as it is easier than to trying to target the rules using a narrow approach.

“It becomes subject to interpretation, because if you say senior managers or senior advisors then it becomes a question of who is a senior advisor, who is a senior manager — so it is intended to be comprehensive in the breadth of the public service,” he outlined to the committee.

The Bill proposes to introduce a legislative framework to adopt and implement tobacco control policies in accordance with the WHO framework convention which speaks to advertising and promotion of tobacco products and relevant products, and smoking generally.