What is there to light up about? (Pt II)

Sherene Golding Campbell, GUEST COLUMNIST

The smoking regulations have set requirements for the labelling of cigarettes with various health warnings and messages. These requirements are extended not just to the packaged units but also to individual sticks when sold (Regulation 3).

Who sells these individual sticks? Usually, it is street vendors and poor people trying to carve out an existence in an otherwise challenging economy. It doesn't take much effort to find out that when a street vendor sells an individual stick, he wraps it in foil wrapper, which may or may not come from the internal packaging of the cigarette box. He is now required to have health warnings and labels on that foil wrapper. If he doesn't, he commits an offence under the regulations and is liable for a fine!

Surely a Government that claims to protect poor people could not be intending this result?

resources

I wonder how the police are going to find the resources to enforce these regulations and where the funding will be sourced to expand the resources of the already burdened resident magistrate's court system that will have to prosecute offences under these regulations. There has been little mention of that.

Of course, there is some assistance to the police granted under Regulation 16 by the empowerment of persons called authorised officers, that is customs officers and medical officers, who now have the authority to remove persons who are found contravening the regulations from the site of the contravention.

I wonder how that is to work. Admittedly, they cannot remove anyone unless in the company of a member of the Jamaica Constabulary Force (JCF). So why exactly was this power granted? The members of the JCF are empowered to enforce all laws. If they are needed to be present when these authorised officers, customs officers and medical officers are removing persons, why do we need the customs officers and medical officers to be granted the power of removal?

And what does removal mean? Are they going to invite persons to leave the premises where they are found contravening the regulations, or are they going to forcibly remove them? What happens when a person refuses to leave? Are they to be arrested for resisting an authorised officer? What a recipe for 'hataclaps'!

There are other features of the regulations which are of concern. Regulations 9 and 10 governing the disclosure of information to the minister on the manufacture of tobacco and tobacco products are an example. Manufacturers, importers, and exporters are mandated by regulations 9 and 10 to disclose information to the minister on almost everything related to the manufacture of the product, some of which appear to invade the parameters of proprietary information.

too much disclosure

Yet, there is no protection under the regulations for this information. Who are the people who will receive this information? What happens to the trade secrets and proprietary information of the manufacturers?

Regulation 4 provides that "any person who sells or offers for sale or supplies any product, uses any device or other item that is intended to be used, or that can be used to cover, obscure, mask, alter, or otherwise disguise the health warnings on tobacco product packages or on messages and signs thereon, commits an offence". By this provision, sellers of masking tape which can be used to cover, obscure, mask, alter or otherwise disguise health warnings on tobacco product packages are in violation of the regulations!

No intent is necessary on the part of the sellers of such 'obscuring' items. Indeed, sellers of plain paper which can be used to cover, obscure, mask or alter are also caught under this provision. There is no need for them to do anything other than what they have always been doing, which is selling masking tape and other tapes and paper products. Sangster's Book Stores and Kingston Bookshop, better watch out! Is this what the Government intended? What 'hataclaps'!

The provisions on evidence are interesting in the context of the proliferation of counterfeit cigarettes which apparently have made their way across the Jamaican border despite the very rigorous customs checks carried out at our borders.

Every person identified as the manufacturer, importer, exporter, distributor or wholesaler of cigarettes is now, prima facie, regarded in any legal action for non-compliance with the regulations as having manufactured, imported, exported, distributed or sold the tobacco product. These persons now have the burden of proving that they did not manufacture, import, export or sell a counterfeit product.

One hopes that such a burden is easily discharged. Otherwise, additional costs are likely to be incurred by innocent manufacturers, importer, exporters, distributors, and wholesalers.

Some persons may think these scenarios sound extreme, but I suggest you take a look at the regulations for yourself. These 'extreme scenarios' are captured under the provisions which have been published. Is that what the Government intended?

research needed

I make a final comment about the policy background of this new piece of legislation. Our laws are replete with examples of enactments that have not had the benefit of careful research and empirical data to support their promulgation.

Indeed, the minister referred to two studies which he appeared to say have informed the need for these regulations. The first is the World Health Organization's statistics on tobacco. Incidentally, he failed to indicate where the data was collected from to inform that study.

The second is the 2012 Global Youth Tobacco Survey undertaken by the National Council on Drug Abuse. Presumably, that survey targets information from youth smokers. Neither study, in my view, supports the widespread ban on smoking that has been implemented in places such as taverns and bars where children are not likely to be found.

Furthermore, while the minister refers to the report from the senior medical officer from Hope Institute which apparently indicates an increase in the number of cases of cancer because of tobacco and tobacco-related activity, he does not state the size of this increase or make any reference to the associated costs vis-a-vis the amount of government revenue that has been directed at combating this phenomenon, or the amount that is now needed to be directed to combat such illnesses.

We know that tobacco use causes certain illnesses. We know that such illnesses, especially in a state that subsidises health care, is a direct charge on our bottom line. But how much of a charge is it, and does it justify the very stringent measures that have been employed by virtue of the promulgation of these regulations?

These are relevant questions, perhaps politically incorrect to ask, but on principle, we cannot approach the implementation of laws affecting people's liberty in this way.

There is much to light up about!

Sherene Golding Campbell is an attorney-at-law practising in Jamaica. She is a graduate of Georgetown University Law Centre in Washington, DC, and the Norman Manley Law School. Email feedback to columns@gleanerjm.com and goldingcampbell@gmail.com.