Huffing and puffing away

A landmark decision in a writ petition in the Lahore High Court in 1997 served to establish guidelines for advertisements pertaining to smoking in Pakistan. The petition was filed by the Chest Foundation and the Pakistan Anti Tuberculosis Association. The respondents were PTV and tobacco companies. The petitioners relied on Article 4 of the Constitution, which provides that ‘no action can be taken against the life and liberty of persons save in accordance with law’. The petitioners contended that advertising for smoking-related products was against the life and liberty of people of Pakistan and that unless there is a law pertaining to such advertising, that it ought to be banned. The petitioners also asked for enforcement of Article 9 of the fundamental rights which guarantees the right to “life”. The respondents argued that the fundamental rights guaranteed to them under the Constitution regarding the right to trade and employment stood to be adversely affected should the judge rule favourably to the petitioners. His Lordship Muhammad Aqil Mirza, in a detailed judgment, did indeed rule in favour of the petitioners and ordered PTV to stop broadcasting cigarette advertisements. This was a landmark judgement which came at a time when Pakistan had no anti-smoking laws whatsoever to rely on.

As per the Global Adult Tobacco Survey, which is carried out by the World Health Organisation (WHO) and looks at tobacco use worldwide, 23.9 million people use tobacco products in Pakistan. According to the Journal of the Pakistan Medical Association, tobacco-associated cancers are responsible for approximately half the tumours in males and a quarter in females. Eight of the ten most frequent cancers in men (lung, oral cavity, larynx, urinary, bladder, pharynx, oesophagus and prostate) and two of the ten most common cancers in females (oral cavity and oesophagus) are associated with tobacco use. All these cancers have registered a dramatic increase. This figure of 23.9 million people excludes the vast majority of people who don’t consume tobacco products but are inadvertently developing cancer, heart diseases and respiratory problems due to second-hand smoking. Annually around 100,000 Pakistanis die due to smoking. An unspecified number develop mouth and gum diseases (including cancer) due to the use of paan and gutka - locally popular means of consuming tobacco by chewing. In many cases of drug abuse amongst teenagers in Pakistan, the victim starts off as a smoker and ends up experiencing and becoming dependent on more hardcore drugs.

The industry has even sought to recruit religious scholars and lawyers to find interpretations of religious texts which are lenient towards tobacco

Pakistan has laws mainly pertaining to smoking, with some mention of other forms of tobacco. The Prohibition of Smoking in Enclosed Places and Protection of Non-smoker’s Health Ordinance (2002) bars persons from smoking in public places, regulates tobacco advertisements and bars the sale of cigarettes to persons below 18 years of age. It, however, does not mention whether paan, gutka and naswar can be sold to underage persons. The penalties present in the law range from fines of Rs. 1,000 to Rs. 5,000. An imprisonment of three months, too, is mentioned in the law. The Prohibition of Sale of Cigarettes to Minors Rules (2010) also seeks to prohibit the sale of cigarettes to persons under the age of 18 years. Again, this law does not mention the other forms of tobacco consumption. Apart from the above two laws, the government appears to also have done some work as far as the pictorial warning printed on cigarette packets is concerned. The action under the law prohibiting smoking in enclosed areas is limited to the closure of various sheesha (water-pipe) cafes that had sprung up in cities in Pakistan. There has been no regulatory action for cigarette smoking under the law. Similarly, no action has ever been taken under the law prohibiting sale of cigarettes to underage buyers. However, very interestingly, a complaint was lodged by a person with the police in Hyderabad against the head of marketing of Philip Morris in Pakistan. The complaint dealt with the fact that Philip Morris had carried full-page advertisements in local newspapers for their brand Marlboro. The complainant further stated that this advertisement was in gross violation of SRO 882 (1) 2007, which provided that advertising for cigarettes should not occupy more than one square inch. The complaint further also cited section 7 of the law on smoking and non-smokers’ health, which provides that a health warning should be included in case of any such advertisements. The executive of Philip Morris appeared before the court and admitted his guilt and a fine of Rs. 5,000 was imposed under the law.

In 2004, Pakistan ratified the WHO Framework Convention on Tobacco Control. The treaty calls for parties to the convention to enact and undertake comprehensive bans on tobacco advertising, promotion and sponsorship, ban misleading and deceptive terms on cigarette packaging such as “light”, “low-tar” and “mild”, implement rotating health warnings on tobacco packaging that covers at least 30 percent (ideally 50 percent or more) of the display areas (this may include pictures or pictograms), protect people from tobacco smoke exposure on public transport and indoor workplaces and public places, adopt or maintain taxation policies aimed at reducing tobacco consumption and combat illicit trade in tobacco products. This requires monitoring, documenting and controlling product movement as well as including origin and destination information on packaging, plus enacting legislation with appropriate penalties and remedies. The treaty also calls for discouraging the cultivation of tobacco leaves and for governments to provide alternative means of livelihood for tobacco cultivators. The world, it appears, considers the use of tobacco to be lethal but then has not done anything to completely ban the cultivation, sale and purchase of tobacco products. Pictorial warnings and bans on underage smoking are merely cosmetic changes in that context.

The Tobacco Board has a tech-savvy website, far more informative and easy-to-browse than the website of the Tobacco Control Cell

Pakistan cultivates tobacco leaves and in fact has a Tobacco Board which is very proud of the efforts which they are undertaking in encouraging tobacco growers in fulfilling the local and international demand for tobacco. The Board has a tech-savvy website which is far more informative and easy to browse as compared to the website of the Tobacco Control Cell which is the government body for controlling the use of tobacco in Pakistan. The message of the Chairman of the Board on the website informs us that the Board is dealing with around 100 million kilograms of tobacco, which is produced in Pakistan on a yearly basis. This tobacco crop provides jobs to approximately 50-60,000 farmers and a labour force of 50,000 in more than 21 factories, whereas up to 100,000 persons are indirectly employed through trading. Besides, the PTB has “helped to contribute about Rs. 110.00 billion to the national exchequer annually in 2014-2015, in the process earning MRs. 2515.60, in foreign exchange”. The Tobacco Board depicts the mentality that Pakistan or for that matter all other countries have regarding the use of tobacco: that it is not harmful and that it generates revenue. In 2014 Saira Afzal Tarar, Minister of State for National Health Services, spoke about increasing the graphic advertising on cigarette packs from 40% to 85%, but that hasn’t happened yet. There is talk instead of cigarette packs containing an advertisement by NAB against corruption which would mean that if you are smoking you are against corruption!

The Tobacco Industry worldwide wields a large stick. They use this stick to manipulate international policies and laws affecting the use of tobacco. The power of the industry is such that they can even sue countries to directly pressurise them into submission. A recent example was where Philip Morris sued Uruguay after a decision by lawmakers in that country to publish graphic images of decaying teeth, premature babies and hospital trauma scenes on an area covering 80% of the cigarette pack. This was much more than what any country was doing in displaying graphic warning images. The government also felt that terms such as “lights” deceived people and that Philip Morris could only use the name “Marlboro” and not “lights”.  Philip Morris claimed that this action by Uruguay breached their intellectual property rights and sued Uruguay using the bilateral investment treaty between Uruguay and Switzerland - the country where Philip Morris is domiciled. Uruguay was considering giving up when the Bloomberg Initiative and the Bill and Melinda Gates Foundation came into play and helped the government with both the money and a legal strategy to fight back. This August, in 2016, a decision finally came out in favour of Uruguay. This case demonstrates the prowess of the tobacco industry at coercion. Philip Morris would have prevailed were it not for wealthy philanthropists like Bloomberg and Gates coming to the legal aid of Uruguay. Bloomberg and Gates have now set up an international fund available to middle- and low-income countries to help the leaders of these countries in combating the efforts of the international tobacco industry.

Australia, too, won its first legal battle against Philip Morris in a case like the one against Uruguay. Philip Morris once again used the Bilateral Investment Treaty, claiming that a warning covering more than 80% of the area on its cigarette packs was a violation of its intellectual property rights. The WHO has a whole booklet on their website which contains details of how the tobacco industry (in the opinion of WHO) is influencing policy-making on the use of tobacco. The techniques by the tobacco industry range from political funding, lobbying and “corporate social responsibility”. Apparently, there are even adverts run by the tobacco industry discouraging youth from smoking! A more sinister reading of this would be that it is a very effective marketing tool for the industry - opening kids to the otherwise taboo world of smoking.

The tobacco industry is very strong in Pakistan, too. There are presently seven listed companies in Pakistan manufacturing tobacco products, which have both local and international owners. The companies, along with the Pakistan Tobacco Board, boast of contributing significantly to the GDP. In 2014, Philip Morris also filed a writ petition against the Government of Pakistan, challenging the issuance of an SRO which provided for the complete ban of all cigarette advertising. Philip Morris prayed for a stay order against the pulling down of its bill boards and other advertisements. Initially, a stay order was issued. The Government of Pakistan strongly contested the writ petition and also cited the regulations of the WHO convention which Pakistan was duty-bound to implement. In March this year, a final order came out in the matter, where Philip Morris agreed to take back its petition and dismantle all advertisements which violated the law regarding the same. The final order also referred to a suo moto action from the Supreme Court in 2006, regarding the use of tobacco in Pakistan. The Supreme Court issued orders for expediting legislation at the provincial level and also that all petitions pending before the High Courts in Pakistan regarding the use of tobacco were to be decided expeditiously. The final orders in this matter were issued last month.

It is mind-boggling to see that even though a product has a proven track record for death, it is still not banned as one would a contraband or poison. Bhutan is the only country which, for a while, tried to ban the cultivation, sale and purchase of tobacco completely. But then Bhutan, too, relented and compromised by introducing strict laws regarding tobacco. Bhutan remains exceptional, though, in that it officially and literally abhors the use of tobacco.

An article in the British Medical Journal dated the 28th of April, 2015, stated that for three decades now the tobacco industry has fought a secret battle against Islamic scholars who sought to discourage smoking on religious grounds. The article provides that the industry has even sought to recruit religious scholars and lawyers to find interpretations of religious texts which are lenient towards the use of tobacco. Efforts were made by Egypt and Malaysia to outlaw smoking on religious grounds but they did not bear fruit. The article in the British Medical Journal states that even the Islamic State terrorist group - which had outlawed smoking in the areas it had conquered and executed people for smoking - could not persevere with the ban! It would be interesting were such a ban to be discussed by the Islamic Ideology Council in Pakistan.

In Pakistan, a recent report by the Senate Standing Committee on Narcotics and Interior highlighted the abnormal growth in drug abuse by children in schools and colleges in Islamabad.  According to the report, around 53% of students aged between 12 and 19, studying in private schools in Islamabad, are addicted to hard drugs. The Prohibition of Sale of Cigarettes to Minors Rules (2010) is of little use if it cannot be enforced. In Canberra, Australia, the police conducted various sting operations and arrested vendors selling cigarettes to underage undercover agents.   The only way the law against sale of cigarettes to underage users can be enforced is if the police, along with the Tobacco Control Cell, were to consider similarly stern measures in Pakistan.

And above all, legislation in Pakistan needs to also regulate the sale, purchase and use of paan, gutka and naswar. Invoking the use of the judicial forum by individuals affected by the use of tobacco may be a novelty in Pakistan but it may also go some way in highlighting the ravages of tobacco on Pakistani public health.

The writer is a practicing Advocate of the High Court of Pakistan and teaches Intellectual Property Law. He can be reached at: yousaf@yaa.com.pk