Loophole? No PH law banning tobacco CSR

(Last of two parts)

MANILA, Philippines – Despite anecdotal evidence that tobacco companies use corporate social responsibility (CSR) projects to skirt laws and stave off unfriendly regulations, they still freely do it – because they can.

There is no specific law banning CSR of tobacco companies in the country.

What the Philippines has are policies, issued by the executive branch, prohibiting government from being involved in such undertakings with the industry. These policies are in line with the Framework Convention on Tobacco Control (FCTC), an international treaty to which the Philippines is a signatory.

These policies were issued in an effort to limit conflicts of interest among government officials who have the role of promoting public health.

But aside from strong resistance from tobacco lobbyists, these policies are also faced with the problem of weak implementation.

While there have been success stories on minimizing tobacco interference in policy making in the country, experts say the government has a long way to go in terms of curbing it completely because of an inherent dilemma of balancing the interests of public health and investments.

This is because despite being lethal, tobacco companies’ products are, after all, legal.

(Read Part 1: Tobacco CSR thwarts ad ban, no-smoking laws)

Keeping them out the door

Currently, regulation of the tobacco industry pertains only to the matters of advertising and smoking bans. The implementation rests on an inter-agency body created under Republic Act 9211 or the Tobacco Regulation Act of 2003.

There are no provisions under the law relating to CSR per se.

In the absence of a national law, however, law experts say the Philippines must adhere to the FCTC.

The FCTC recognizes that the tobacco industry uses CSR to interfere with government tobacco control measures.

Article 5.3 of the global treaty states: “In setting and implementing their public health policies with regards to tobacco control, parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.”

There have also been recommendations from the 3rd Conference of the Parties of the FCTC for public officials to “denormalize, and to the extent possible, regulate activities described as ‘socially responsible’ by the tobacco industry, including but not limited to activities described as ‘corporate social responsibility.’”

This means that government officials at the national and local levels must not have any accord with tobacco companies, except the agencies that were created or have been there for the sole purpose of dealing with tobacco companies, according to Alex Padilla, former health undersecretary and chair of the Philippine delegation in the drafting of the Article 5.3 guidelines.

Several congressmen – most of whom are from the tobacco-producing Northern Luzon provinces – are, however, questioning the power of the FCTC. They say it’s not self-executory and the Philippines has to pass its own laws first to be able to implement it.

Particularly, they are questioning the health department’s 100% smoke-free indoor project that aims to implement Article 8 of the FCTC.

In a letter to Health Secretary Enrique Ona dated August 15, 2011, the lawmakers said the project departs from the provisions of RA 9211 and its implementing rules and regulations that defined “enclosed area” and allowed the designation of smoking places within this area.

Memos

While Padilla doesn’t agree with the lawmakers on FCTC, he admits the treaty is hard to implement by itself because it is not “sanction-based.”

This is where local policies play a role.

In line with the FCTC Article 5.3, several government institutions and agencies have issued their own memorandum circulars to limit tobacco interference in government policy making.

Perhaps the most encompassing of all is the one issued by the Civil Service Commission (CSC), the primary government agency tasked to enforce the law on the conduct and ethical standards for public officials and employees, and the Department of Health (DOH), the main agency tasked to promote public health.

A “pioneer” in the world, CSC-DOH joint memorandum 2010-01 “seeks to protect the bureaucracy from tobacco industry interference.” It covers “all government officials and employees, regardless of status, in the national or local government including government-owned and –controlled corporations, with original charters, state colleges and universities.”

Section 3.1 of the joint memo prohibits government from interacting with the tobacco industry except when strictly necessary for the latter’s effective regulation, while Section 3.3 bars them from soliciting, accepting, “directly or indirectly, any gift, gratuity favor, entertainment, loan or anything of monetary value in the course of their official duties or in connection with the operation being regulated by, or any transaction which may be affected by the functions of their office from any person or business related to the tobacco industry.”

Section 5, which specifically deals with activities branded as “socially responsible,” requires public officials to report any information on any interaction with and offer of donation from the tobacco industry as well as preferential treatment given to the latter.

The joint memo provides that “any violation of this circular shall be considered a ground for administrative disciplinary action pursuant to Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292, without prejudice to the filing of criminal as well as civil actions under existing laws, rules and regulations.”

The DOH also issued its own memo, with essentially the same provisions, but detailing how concerned divisions of the agency should report any offer of CSR-related partnerships, contributions or donations from the tobacco industry.

Other government agencies have issued their own memos on tobacco, too.

The Commission on Higher Education, for one, released a January 14, 2010, memorandum directing all its regional office directors and officers-in-charge to reject any contribution from the tobacco industry, pursuant to FCTC Article 5.3, “to avoid partnership with them and thereby promote a healthy environment and protect citizens from the hazards of tobacco smoke.”

Challenges

The memos are faced with the problems of weak implementation and, sometimes, varying interpretations.

The CSC-DOH memo was issued in June 2010, but CSR partnerships between LGUs and government agencies still continue.

For example, in July 2010, about a month after the CSC-DOH memo was issued, Philip Morris partnered with the Department of Education on its “Adopt-a-school” and “Brigada Eskwela” programs for the renovation of a school building in Pagsanjan, Laguna.

Between October and November 2011, PMFTC also donated trash bins to Metro Manila and Laguna, Batangas, Cagayan, and Ilocos provinces as part of its “Butt Litter Campaign” program with the Department of Environment and Natural Resources that started as early as 2009.

No one has been sanctioned in relation to violations of the CSC-DOH memo as no official complaint from any agency against any government official has been filed, lawyer Krunimar Escudero III, acting division chief of the Civil Service Commission’s Office for Legal Affairs, told Rappler in a phone interview.

“So far, here in the central office, we have not received any reports. The Commission itself has not pursued any case based on reported violations because we don’t have enough leg to stand on.”

Asked about government partnerships with tobacco players that were published in the media, Escudero said they know about these partnerships, but don’t want to act on them in a way that will be “intimidating” to the parties.

“We are still in the stage of dissemination, informing government agencies about the policy under the CSC-DOH memo. What we do when we hear about these partnerships is remind them about their obligations under this memo. So far, after we’ve reminded them, they have not committed the same act,” Escudero said.

It’s the same story for the DOH memo. Dr. Ivan Escartin, acting chief of the National Center for Health Promotion, the lead DOH division that took part in crafting the CSC-DOH memo, said the main DOH office has not received any official report on any tobacco interference.

Aside from weak implementation, the memos are subject to different legal interpretations.

A legal opinion of Justice Secretary Leila de Lima sent to Ona in July 2011 states that government “is not absolutely prohibited or precluded from entering into partnership with or participating in activities of those in the tobacco industry.”

De Lima said that while interests of the tobacco industry and public health policymakers are irreconcilable, interaction between them are necessary to ensure that the former’s activities are “accountable and transparent.”

“Besides, apart from the recognition of the parties’ sovereign right to determine and adopt the imposable tobacco control policies, the FCTC merely encourages the implementation of the adopted policies in accordance with the parties’ national law,” the justice secretary said.

Gov’t dilemma

But the biggest challenge of all is the government’s inherent dilemma to balance the interests of public health and business investments.

RA 9211 specifically states that “the government shall institute a balanced policy whereby the use, sale, and advertisements of tobacco products shall be regulated in order to promote a healthful environment and protect the citizens from the hazards of tobacco smoke, and at the same time, ensure that the interest of tobacco farmers, growers, workers and stakeholders are not adversely compromised.”

Padilla says the government actually puts more weight on business than public health.

This is reflected in the composition of the inter-agency committee on tobacco (IACT), which is tasked to regulate the industry. IACT’s chairman is Department of Trade and Industry, and the vice chair is DOH.

“There are even tobacco representatives in that regulatory committee. That already constitutes conflict of interest. They should remove them,” Padilla noted.

“The government has a schizophrenic attitude,” he said. “DOH is trying to curb smoking then national government is encouraging through the NTA (National Tobacco Administration), which promotes tobacco.” – Rappler.com

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