Tobacco label push stalls

Court finds faults in health warning changes

The Central Administrative Court has ordered the Public Health Ministry to suspend the enforcement of a cigarette health warning enlargement regulation in a high-profile case filed by tobacco giant Philip Morris against the ministry.

The company yesterday hailed the court's decision, handed down on Friday.

Philip Morris lodged a complaint with the court on June 26, asking it to issue an injunction suspending the enforcement of a new regulation requiring tobacco warning labels to cover 85% of the total visible packaging surface, up from 55% at the moment. It also asked for the regulation, which was to take effect on Oct 2, to be scrapped.

The plaintiff claimed the ministry acted beyond its legal powers and failed to consult thousands of retailers and manufacturers in violation of due process requirements. It also claims the measure substantially impairs the ability of manufacturers and importers to use their trademarks to differentiate their products from those of competitors.

Further, Philip Morris says the regulation is unnecessary given that the risks associated with smoking are well known.

The requirement for each 10-pack carton to contain 10 different warning images would impose a hefty burden on tobacco producers as packaging technology now does not support such design diversification, the company says.

During the court hearing, the ministry argued the regulation was in line with the World Health Organisation's (WHO) Framework Convention on Tobacco Control, which supports the use of health warnings to prevent the young and non-smokers from trying tobacco products.

The National Tobacco Control Board has also resolved that on-package health warnings are the most effective means of reminding consumers of the dangers of smoking, the ministry said.

Regarding the diversification of health warning images on cigarette cartons, the ministry has already agreed to give tobacco firms another 180 days from Oct 2 to adjust packaging machines.

The court concluded the hearing last month and ruled on Friday for the regulation's enforcement to be suspended.

The court said the regulation has problems regarding its legality and would cause excessive burdens on the plaintiff once it is put into force.

"The regulation contains several legal problems that need to be considered," the court said.

The problems include clarifying the reason behind the enlargement of the health warning labels; whether the regulation will cause an excessive burden on the plaintiff; whether the ministry has thoroughly weighed the benefit of the regulation for public health protection against the damages that may be caused to the plaintiff; and if the ministry has listened to opinions from affected parties.

"The fact that the ministry has extended the enforcement of package diversification for 180 days shows that the regulation is deemed impractical," the court said.

The court ruled the enforcement of the regulation be delayed until a final judgement is made.

Philip Morris yesterday hailed the court's decision. "We welcome the court's recognition that this regulation should be suspended until this case is considered on its merits, and we are grateful to the court," Onanong Pratakphiriya, manager of the company's communications and external affairs, said.

"The decision now clears the way for us to show this measure is not only illegal but also unnecessary given that the health risks of smoking are universally known in Thailand," she said.

The Public Health Ministry had earlier insisted the ministry has a legal right to enforce this packaging regulation.

The WHO's Framework Convention on Tobacco Control allows public health ministries to implement measures without getting feedback from tobacco traders, the ministry says.

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