Pakistan: Tobacco Giant Offers Its Standpoint on Advertising Regulations

Source from:  The News 06/05/2014

Philip Morris Pakistan Limited (PMPKL) has contradicted a story published in 'The News' on May 31 titled 'Tobacco giant humbled by judiciary.'

Clarifying its position, PMPKL has stated that "the petition filed by PMPKL seeks to challenge the legality of the new tobacco advertising guidelines issued by the federal government because the authority to regulate health matters lies with the provinces, not the federal government." "In the hearing on May 28, 2014, the court adjourned the matter to hear PMPKL's application in detail. In the meantime, the court, noting that the SRO is effective May 31, 2014, allowed an interim relief to PMPKL to not take down its existing advertisements along with issuing directions to the government to not take any coercive measure against PMPKL for implementation of the new guidelines until the next date of hearing," the clarification states.

"PMPKL supports reasonable advertising regulations and is compliant with the existing tobacco regulations. PMPKL does not seek to reverse all regulations on tobacco advertisement for 'complete tobacco advertisement freedom' in Pakistan as has been inaccurately reported by some media outlets. PMPKL is also not challenging any other existing restrictions on tobacco product advertisements," it states to clarify its position.

Our correspondent adds: It is evident from plain reading of the text of the petition that it is not limited to "legality of the new tobacco advertisement guidelines," as stated in the clarification. The petition challenges the very existence of the Ministry of National Health Services, Regulation and Coordination and seeks to declare the ministry and its law illegal and ultra vires. Paragraph 4.A of the petition states that the "invocation of any provision of the 2002 Ordinance in support or for enforcement of any regulation issued by the Federal Government in respect of health is also illegal, unwarranted, unsustainable and ultra vires." Secondly, it is also to be noted that in the judicial hearing held in Sindh High Court, PMI's claim for an immediate and indefinite stay against the new marketing restrictions issued by the ministry was not granted by the court. The court instead clearly ruled: "No fresh billboard or hoarding/advertisement board will be affixed and the publicity of tobacco may be allowed inside the shops through posters." This clearly means that any new marketing and promotion to be undertaken by PMI must be in line with the new guidelines issued by the ministry. PMI was, however, given time till the next court date (June 6, 2014) to not dismantle any current advertisement. During the court hearing, the Assistant Attorney General (AAG) also gave assurance to the court not to proceed against PMI w.e.f. June 1 onwards for violation of the new guidelines. But PMI is clearly bound by the ruling to ensure that any new marketing is in compliance with the new guidelines. The court stopped penal action against PMI for violation till next date of hearing, that too on an undertaking given by AAG.

Thirdly, it is worth noting that the new tobacco advertisement guidelines were notified five months ago and have come to force with effect from World No Tobacco Day (May 31, 2014). While PMI is claiming to only challenge the "jurisdiction" of the guidelines, the timing of the petition itself is important, as it has been filed only three weeks before the new tobacco advertisement guidelines were to come into effect. The delay in challenging the jurisdiction shows that PMI started the judicial process only to buy time for itself.

Besides jurisdiction, PMI has also objected to the very nature of these regulations. As stated in paragraph 2.13 of the petition, that the new tobacco advertisement guidelines allegedly place "such a draconian prohibition on the method and manner of advertisements." And "reveal a blanket ban on advertisement of tobacco and tobacco products" which in paragraph 2.18, it goes on to claim, will cause "extreme prejudice to its business." PMI, though this petition, is actually aiming to get direct financial benefit as indicated in paragraph 2.12 of the petition, in which it states that it has made "substantial investments" previously and that these regulations will "cause irreparable loss" to the business, (paragraph 2.18).

The 113-page petition has not once mentioned the Framework Convention on Tobacco Control, an international treaty of the WHO which Pakistan is a signatory of. As per the FCTC, each signatory must undertake a "comprehensive ban on all tobacco advertising, promotion and sponsorship." The new tobacco advertisement guidelines aim to take Pakistan closer to that end. However, any rollback of these regulations at this time would not only mean violation of the spirit of an international treaty, but would surely invite blow-back from international donors such as WHO and others alike. If health regulations such as the Cigarettes Printing of Warning Ordinance (1979) etc. have to be enforced in letter and spirit, they must be implemented nationally. A clear consequence of PMI's petition challenging the jurisdiction of these regulations would not only amount to the annulment of all current regulations on tobacco advertisement, but all previous tobacco marketing restrictions would be declared null and void as well, giving a complete regulatory holiday to cigarette manufacturers in Pakistan. In view of the foregoing, the correspondent stands by the story. Enditem