Tobacco law being tweaked to minimise constitutional infringement
The joint select committee has been reviewing the 2020 tobacco control Bill to ensure that the law satisfies the constitutional requirement of being carefully designed, for minimal rights infringement, balancing the right of individuals to freedom of association, against the interest of the society

THE Attorney General's Department (AGD) and the Ministry of Health and Wellness (MOHW) are to fine-tune provisions being proposed for the tobacco control law in relation to the interactions of public officers with the industry, to minimise the chances of any constitutional rights infringement and court action.

On Tuesday, the joint select committee (JSC), which has been reviewing the 2020 tobacco control Bill, mulled over the best approach to ensure that the law satisfies the constitutional requirement of being carefully designed, for minimal rights infringement, balancing the right of individuals to freedom of association, against the interest of the society.

At Tuesday's meeting of the JSC, solicitor general Marlene Aldred explained that the current provisions in section eight and nine of the Tobacco Control Act, as is, could see the tobacco industry being treated differently than others that present the same or similar dangers such as the laws governing the cannabis or alcohol industry.

"The issue is whether this can be demonstrably justified in a free and democratic society," she said.

Aldred explained that in determining whether any of the fundamental rights and freedom in chapter three of the constitution are infringed, the court takes into consideration factors such whether there is a legal framework, that is carefully designed, and whether efforts were made to minimally impair that right.

"Another part of the [constitutional] test that will arise thereafter is a balancing act because at the end of the day you still have to look at the interest of the individual and the interest of society and see which would outweigh the other," she said.

To this end, lawmakers are looking to adopt regulations from the Kenya tobacco control model, tailored for the Jamaican context.

Pointing to provisions in Kenya's 2014 tobacco control regulations, which address the issue of public authorities' interactions with the industry, Aldred said the AGD was of the view that those regulations which provide a more focused scheme to address limiting interactions with public authorities, public officers and the tobacco industry are more carefully designed. Aldred said the regulations should also achieve the objectives of the World Health Organisation (WHO) framework convention article 5.3, and guidelines which Jamaicans want to comply with.

"From our perspective it [the Kenyan model] would do a better job of meeting our constitutional test," she stated, noting that although the current provisions in the Tobacco Control Act is substantive, it lacked the detail and narrow focus outlined in the Kenyan model, which could be useful in demonstrating the careful design of the law.

As set out in Section 22 of the Kenyan regulatory framework: "any interactions between public authorities or public officers and the tobacco industry shall be limited to the extent strictly necessary for effective tobacco control and enforcement of relevant laws".

Moreover, the current proposed section eight of the Tobacco Control Act prohibits a person who acts on behalf of a public body which has responsibility for tobacco control — including in their individual capacity — from doing business in any way with a player in the tobacco industry, except where it is strictly necessary to do so. Section nine makes similar provisions including prohibiting partnerships of any kind, endorsements, and other initiatives.

Further, the Kenyan tobacco regulations also provides for: a minimum of two public officers shall be present in any interactions with the tobacco industry; that before engaging in any interaction with the tobacco industry, the public officers must state, in writing, that the interaction does not imply an endorsement of tobacco industry practices and that no relationship, collaboration or partnership shall be construed whatsoever from the interaction; any public officer participating in any interaction with tobacco industry shall prepare a formal record of the interaction and submit to the relevant public authorities including the Cabinet secretary on request.

Aldred emphasised that should the committee agree on the general scheme of the Kenyan model, the provisions could not be taken wholesale, would have to meet the policy of the MOHW, and be applied sensibly in the Jamaican social conditions.

Chairman of the JSC Dr Christopher Tufton noted that the model — if adopted — would narrow the focus on the areas with the greatest potential for harm or conflict, in the interactions of public authority figures, with the tobacco industry. He said a definition for "interact", should also be set out, and that a review clause should be included.

Additionally, Government Senator Kavan Gayle embraced the Kenyan model as a softer approach, to what most members of the JSC had found in the tobacco Bill, to be provisions that are "very intrusive".

BY ALPHEA SUMNER Senior staff reporter saundersa@jamaicaobserver.com

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