Open Letter: How was it possible for the tobacco industry in Moldova to obtain, by Government decision, regulations that promote tobacco consumption among children?

Sursa Foto: Facebook/ Boris Gîlca și Pavel Filip

Elena Cioina

18 februarie, 2019, 10:41

Vizualizări: 3704

The Government's decision amending the health regulations on the marketing of tobacco and tobacco-related products in Moldova is at the expense of consumers, especially of children. The provisions contravene the Law on Tobacco Control, which is why experts from the Center for Health Policies and Studies (PAS Center) call on the Prime Minister Pavel Filip and Secretary General Boris Gîlca to decide on the amendments and to restore them within the limits of legality.

Experts also demand the protection of health policies from the interference of the tobacco industry in accordance with the Law on Tobacco Control. Our country, experts say, has made these commitments, including by signing the World Health Organization's Framework Convention on Tobacco Control.

In the open letter addressed to the Prime Minister Pavel Filip, the State Secretary General of the Ministry of Health, Labor and Social Protection Boris Gîlca and Children's Rights Advocate, Maia Banarescu, as well as the representative of the World Health Organization in Moldova Igor Pokanevych, the PAS Center also warns on the non-transparent way through which decisions that directly address public health are approved.

The first pillar of the anti-tobacco legislation was shaken right by MPs in 2017 when they modified the Tobacco Control Law and allowed non-burning tobacco products to be introduced on the domestic market, thus lobbying for an international cigarette manufacturer.

Another pillar was shaken in December last year, when the Ministry of Health, Labor and Social Protection offered for public debates a document that seemed to be a copycat of one issued by the tobacco industry. The document was again targeting non-burning tobacco products, and health authorities even suggested that they would be less dangerous than traditional cigarettes. Then, the Ministry officials told Sanatate INFO that they were not involved in drafting the document.

Because it was a document with many contradictions, the PAS Center came up with a negative opinion on the draft law backing each point with legal arguments. But the health authority did not take them into consideration.

MoHLSP did not take into account the advanced arguments when the project was finalized and submitted for approval to the Government. Moreover, the PAS Center’s opinion was neither set in the table of divergences of the draft bill nor was annexed to the draft Government Decision amending the Government Decision no. 1065/2016 approving health regulations on tobacco products and tobacco-related products. Unfortunately, we conclude that the so-called decisional transparency is only valid when civil society organizations express convergent or homogeneous views with those of public authorities, not when they disagree with the draft bills and initiatives advanced by respective public authorities, in the latter case, negative opinions of civil society representatives are simply ignored (as was the case with the above-mentioned project).”, is stated in the open letter to the Prime Minister Filip and State Secretary General Boris Gîlca.

Thus, although the health officials made some improvements in the document, it entered into force with a number of provisions that directly or indirectly contradict the tobacco control legislation. They specifically refer to the ways of promoting non-burning tobacco products and the access of minors to them. Amendments to health regulations make the promotion permissive and facilitate children's access to tobacco products and tobacco-related products.

We specify that the Tobacco Control Act generally prohibits the promotion of tobacco products and related products.

Below is the full text of the PAS Center's letter addressed to officials:

No.054/2019 from 14 February 2019

The health of minors in the Republic of Moldova is threatened. Letter to the Prime Minister and State Secretary General of the Ministry of Health, Labor and Social Protection

To Mr. Pavel Filip, Prime Minister of the Republic of Moldova

To Mr. Boris Gilca, State Secretary General of the Ministry of Health, Labor and Social Protection

For information:

Mrs. Maia Banarescu, the People's Advocate for the Protection of Children's Rights

Dr Igor Pokanevych, the WHO Representative and Head of the Republic of Moldova Office

National Council for Participation

Dear sirs,

The Center for Health Policies and Studies (PAS Center) is deeply disappointed with the way in which public authorities have lately approved tobacco control regulations in the Republic of Moldova. In 2017, in a way that is hardly transparent, the Parliament adopted a draft law (subsequently the Law no.185/2017 for the amendment and completion of some legislative acts) through which amendments were made including also to Law no. 278/2007 on tobacco control, the essence of which was to facilitate the advertising, promotion and marketing of non-burning tobacco products.

Subsequently, on December 10, 2018, the Ministry of Health, Labor and Social Protection (MoHLSP) published on the particip.gov.md site a draft Government decision on amendments to the Government Decision no. 1065/2016 approving health regulations for tobacco products and tobacco-related products. The PAS Center has issued a negative opinion on this draft Government decision with sound legal arguments to support expressed opinion (copy is attached). However, MoHLSP did not take into account the advanced arguments when the draft bill was finalized and submitted for approval to the Government. Moreover, the PAS Center's opinion was neither set in the table of divergences of the draft bill nor was annexed to the draft Government Decision amending the Government Decision no. 1065/2016 approving health regulations on tobacco products and tobacco-related products. Unfortunately, we conclude that the so-called decisional transparency is only valid when civil society organizations express convergent or homogeneous views with those of public authorities, not when they disagree with the draft bills and initiatives advanced by respective public authorities, in the latter case, the negative opinions of the civil society representatives are simply ignored (as was the case with the above-mentioned draft law).

In the Official Monitor of 01.02.2019 (art.57) the decision of the Government regarding the amendment of the Government Decision no. 1065/2016 approving the health regulations on tobacco and tobacco-related products was published, thus this decision no longer being a draft, but a normative act with legal effects. However, we have found that this normative act, although subordinated to the Law, still contains a multitude of provisions that directly or indirectly contradict the legislation in force. We refer first of all to the following:

1. The Government has supplemented provision 12 of the Health Regulation on the marketing of unfermented and fermented tobacco, tobacco and tobacco-related products with the sub-paragraphs 7), 8) and 9), with the following content:

„7) Campaigns and actions to promote tobacco and tobacco-related products that are intentionally addressed to people under the age of 18 are prohibited.

8) The consumption of tobacco and tobacco-related products is banned on the following territories:

a) educational institutions, health institutions, including the related areas administered by respective institutions;

b) amusement parks and children playgrounds.

9) Businesses that produce, import or sell non-burning tobacco products at the request of adult consumers are required:

a) to demonstrate how to use non-burning tobacco products;

b) inform verbally or by providing written materials such as brochures, flyers, guides and other such materials on characteristics, health effects, risks and emissions of non-burning tobacco products."

It should be mentioned that point 12 of the Health Regulation aims at preventing the access of minors to tobacco and related products, which is evident from the first sentence of this point (To prevent the access of minors to tobacco products and related products). Therefore, only regulations dealing with special measures to prevent access of minors to tobacco and tobacco-related products are to be found in point 12, but it cannot contain general regulations on these products, nor can they provided for regulations that would de facto be less restrictive as regards the access of minors to tobacco and tobacco-related products in relation to those provided for by law.

1.1. Thus, sub-paragraph 9) on the obligation of economic operators to demonstrate to adults how to use non-burning tobacco products and to provide information, brochures, leaflets, etc. on the one hand is out of place under provision 12 of the Health Regulation on the marketing of unfermented tobacco and fermented tobacco, tobacco products and tobacco-related products, since it concerns additional measures to protect minors, which does not relate to the right of adults to require tobacco businesses to provide demonstrations on how to use non-burning tobacco products, etc. On the other hand, sub-paragraph (9) is intended and in fact, constitutes a rule that facilitates the promotion of non-burning tobacco products. The Law no. 278/2007 on tobacco control does not empower the Government with competences in this field, and the consumers’ right on being informed is established in general regulations. There is no need for a special rule providing for the "obligation" of tobacco companies (which in fact is a right) to promote tobacco products that do not burn at the request of adult consumers. As a matter of fact, under sub-paragraph 9), the Government calls on the tobacco industry to publicly promote tobacco products which do not burn at the request of adult consumers (regardless of whether this demonstration is conducted in public areas, where other consumers including minors might be present).

1.2. Sub-paragraph 8) which prohibits the consumption of tobacco and tobacco-related products only in educational establishments, health institutions, amusement parks and children playgrounds constitutes a direct violation of Article 26 of Law no. 278/2007 on tobacco control, which provides a much wider list of areas where smoking is banned, including stadiums, arenas, spaces of central and local public authorities, etc. From sub-paragraph 8, provision12, as approved by the Government, it is apparent, per a contrario, that the consumption of tobacco and tobacco-related products is permitted in all spaces with the exception of educational institutions, health institutions, amusement parks and children playgrounds, regardless of whether or not the minors are present. For example, contrary to Article 26 of Law No. 278/2007 on Tobacco Control, the Government does not see a problem in the consumption of tobacco products in public sports facilities, libraries, children camps, children foster houses, juvenile prisons, government buildings, in commonly shared spaces of multi-storey houses, in public and private transport with minors, in enclosed public spaces with minors, etc. Sub-paragraph 8 of provision 12 of the Health Regulations on the Marketing of Unfermented Tobacco and Fermented Tobacco, Tobacco Products and Tobacco Related Products may only provide for additional measures in the best interest of children, concerning the ban of consumption of tobacco products and tobacco-related products, but not to provide measures for the lower protection of children compared to those established in the general provisions of art. 26 of Law no. 278/2007 on tobacco control.

1.3. Sub-paragraph 7 prohibiting the promotion of tobacco products and tobacco-related products INTENDED for minors is in fact a legitimation of the promotion of tobacco products among minors. The sub-paragraph 7 in fact establishes a presumption - that the promotion of tobacco products, even if it is carried out among minors, is not illegal until the guilty intention of the promoter is demonstrated. The promotion through negligence or error of tobacco products among minors is no longer illegal. Sub-paragraph 7 of provision 12 is against the law, the Government does not have powers to regulate the promotion of tobacco products among minors and may not lay down primary rules regarding minors.

Sub-paragraph 7, as well as sub-paragraphs 8 and 9 of provision 12 of the Health Regulations on the Marketing of Unfermented Tobacco and Fermented Tobacco, Tobacco Products and Tobacco Related Products constitute legal norms initially established by the Government without Parliament's empowerment, or even rules that run counter to the legal norms approved by the Parliament. At the same time, the mentioned sub-paragraphs constitute measures by which the Government establishes the possibility of tobacco consumption in other areas, even in those prohibited by law, measures that foster the promotion of non-burning tobacco products and which establish a much less rigorous regime of tobacco control among minors than the one envisaged by the legislation.

2. We cannot ignore the indignation regarding the provisions of points 15/2 and 15/3 with which the Health Regulations on the Marketing of Unfermented Tobacco and Fermented Tobacco, Tobacco Products and Tobacco Related Products was completed. Thus, point 15/1 establishes that the information on the level of toxic substances of certain non-burning tobacco products, on the health effects and potential risks associated with the consumption of certain non-burning tobacco products compared to consumption of cigarettes, may be provided to consumers only if such information is scientifically supported in accordance with paragraph 15/2. However, point 15/2 of the Regulation does not specify how such information is considered to be scientifically supported, its regulatory matter being of a different nature. Thus, practically any information about the negative effects of consuming non-burning tobacco products will not be available to the consumer until it is 100% scientifically proved that the information is true and under the circumstances in which point 15/1 refers to point 15/2, which does not in fact tell us which information is to be defined as "scientifically supported". The nature in which points 15/1 and 15/2 were formulated provide legal opportunities to tobacco industry to evade from informing consumers about the harmful effects of non-burning tobacco products.

Point 15/3 stipulates that the National Public Health Agency applies "post-marketing enforcement measures" if the information submitted to consumers is not sustained by scientific evidence. Referring to the point 15/3 we would like to mention that the meaning, procedures, cases and the significance of the enforcement of the respective measures and what in fact these measures imply are not clear. Moreover, the wording of points 15/1- 15/3 will make it impossible for the state authorities to intervene with regard to the information that can be provided to consumers as it is stipulated that the tobacco industry representatives will submit to the National Agency for Public Health the information that can be provided to the consumer. It is not excluded that the tobacco industry operator should request the intervention of the National Public Health Agency when providing information on the negative effect of consumption of non-combustible tobacco products which, in the opinion of the economic operators, are not fully scientifically proven.

It is worth mentioning that the Government's decision on amending the Government Decision no. 1065/2016 approving health regulations on tobacco products and tobacco-related products for the reasons outlined above is detrimental to consumers, to the minors and even contains provisions which contradict the hastily approved Law No. 181/2017 amending and supplementing the Law no. 285/2007 on tobacco control.

For the reasons set out above, we kindly ask you to examine the facts described in this letter, including the lack of transparency in the promotion of the above-mentioned normative acts, as well as to initiate the amendments to the Government Decision no. 1065/2016 in order to restore it to the limits of legality. We also kindly ask that in setting and implementing public health policies on tobacco control to ensure compliance with the commitments under the World Health Organization's Framework Convention on Tobacco Control and to protect these policies against commercial or other interests of the tobacco industry, in accordance with the Law 278/2007 on Tobacco Control.

Signed, Director Center for Health Policies and Studies (PAS Center),

Stela Bivol

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Tag: health, Law on Tobacco Control, Government

Categoria: Știri Interne

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