Tobacco bill ‘may have gone too far’
Lawmakers raise concerns about intrusiveness, absurdity
The constitutionality of tough restrictions in the Tobacco Control Act, 2020, which seeks to create a firewall between players in the tobacco industry and government workers, was questioned by one legislator who is of the view that the proposed law may be too intrusive.
Clause Eight of the bill states that “a person who acts on behalf of, or for the benefit of, a public body which has responsibility for tobacco control, shall not, whether in the person’s individual capacity or otherwise interact in any manner whatsoever, with a person in the tobacco industry in furtherance of a business activity ...”.
Clause Nine subsection (3) (b) states that a person employed with a public body shall not, among other things, invest in the tobacco industry or any related ventures.
Member of the joint select committee reviewing the tobacco bill, Dr Morais Guy, cautioned on Thursday that provisions in the proposed statute could trespass on the rights of individuals.
The opposition lawmaker contended that this provision would require government employees who had invested in the tobacco industry to divest themselves of any such interest.
He questioned whether public-sector employees would be obliged to accept the legislative stipulations.
“It is going to be one that creates a lot of challenges for members of the legislature, members who have interests elsewhere,” Guy said, noting that he did not have any particular interest in the tobacco industry.
However, he said there were others who had an interest in the industry.
“My concern is that, is this not an intrusion on the rights of an individual to have such a legislation being enacted?”
Guy wanted to know if the provision in the legislation was at variance with Chapter Three of the Constitution, which sets out the fundamental rights and freedoms of Jamaicans.
Albert Edwards, consultant in the Ministry of Health and Wellness who provides technical support to the committee, said that the tobacco bill was deliberately intrusive, especially in relation to public officials or public agencies that had direct responsibility for matters of policy as it relates to public health.
“It is a direct restriction prohibition control because of the fact that if allowance is given for interaction at a certain level between such officials and industry players, there is the possibility of compromise in terms of policy development, in terms of enforcement, and in terms of administration,” Edwards told committee members.
The consultant and former head of the Office of the Parliamentary Counsel said he was not aware of any constitutional challenges elsewhere to the provisions highlighted by Guy.
He said that the drafting of the bill went through a rigorous examination led by the attorney general’s chambers, which signed off on the constitutionality of the proposed law before it was tabled in Parliament.
Committee member Senator Sherine Golding Campbell also had concerns about Clause Eight of the legislation.
“It seems to me that in trying to draft a provision to fulfil our obligation for Article 5.3, that in Clause Eight we may have gone a bit too far,” she said.
Article 5.3 of the World Health Organization Framework Convention on Tobacco Control requires that in setting and implementing public-health policies with respect to tobacco control, parties shall act to protect these policies from interests of the tobacco industry.
Golding Campbell said she had a difficulty with the provision that was seeking to limit the interaction of the public officer who was responsible for tobacco control with any person in the tobacco industry.
“The absurdity of limiting the interaction between that responsible public officer and, let us say, a sanitation worker in the tobacco industry is captured by this clause. That’s the concern,” said Golding Campbell.
Another committee member, Senator Kavan Gayle, queried whether a similar provision to Clause Eight of the bill was reflected in any other piece of local legislation.
He also raised concern about Clause 10 (3) of the tobacco bill, which indicates that a person who seeks employment with a public body shall be required to make such disclosure in relation to any current or prior occupational activity or any other affiliation with the tobacco industry.