The quagmire of tobacco control policy in the Philippines

June 2021

 

The quagmire of tobacco control policy in the Philippines

 

[An edited version of this article was published on 13 Dec 2021 by Vera Files as "A corporate cloud over the right to health," and an even more condensed version  was first published on 10 Aug 2021 in the Asia Democracy Chronicles.]

If everyone knows that smoking kills, why are tobacco products still legal and regulated as if they are just like other consumer products? Why aren’t tobacco products and the tobacco industry in the Philippines regulated as strictly as in some other countries? The first US Surgeon General’s Report on Smoking and Health was published in 1964, but 57 years later, why are there still 1 billion tobacco users in the world, of whom 16 million are Filipino adults?

 

The Global Burden of Disease (GBD) Study recently reported in the Lancet that although smoking prevalence had decreased significantly since 1990 among both males (27.5% reduction) and females (37.7% reduction) aged 15 years and older, efforts to curb smoking have been outpaced by population growth with 150 million more smokers in 2019 compared to 1990.

 

The GBD study also showed that 89% of new smokers were addicted by the age of 25, confirming what the tobacco industry has known and exploited for decades and emphasizing the need to focus on preventing youths from becoming addicted, as the adolescent brain is particularly vulnerable to nicotine addiction.

 

Why are governments the world over working overtime to address the COVID-19 pandemic that killed 3.79 million people (including 22,788 Filipinos) in the past 18 months, but tolerating and seemingly neglecting the tobacco pandemic that every year kills 8.2 million people--including about 115,000 Filipinos? 

 

Answers to these questions lie partly in history, particularly from the time that the modern cigarette-rolling machine was invented in 1880, producing 200 cigarettes per minute, as compared to 3 to 5 cigarettes rolled by hand per minute (today’s machines produce 20,000 death sticks per minute). At the start of the 20th century, lung cancer was a rare disease, and medical students were told they might never see another case in their lifetime. Ever growing scales of mass production coupled with aggressive marketing campaigns led to an exponential and widespread increase in smoking and nicotine addiction with a subsequent similarly exponential increase in lung cancers, and it took a few decades for the science of health harms and government regulation to catch up. By the 1960s, smoking prevalence was as high as 50%-70% in the United States and many European countries. Since peaking in the 1960s and 1970s, tobacco use in those countries has declined through tobacco control policies and programs, driven by the evidence of smoking as a leading cause of health harms to both smokers and non-smokers. Faced with shrinking markets in high-income countries, transnational tobacco companies exploited trade liberalization, foreign direct investment, technological innovation, global communications, and other facets of a globalized economy to establish and expand markets in low- and middle-income countries (LMIC), which now comprise 80% of all tobacco users and deaths. Incidentally, two-thirds of the world’s smokers live in just 10 countries, including the Philippines; the other countries are  China, India, Indonesia, the United States, Russia, Bangladesh, Japan, Turkey, and Vietnam.

 

Responding to this globalization of the tobacco epidemic, World Health Organization (WHO) member states negotiated and approved the WHO Framework Convention on Tobacco Control (FCTC), which entered into force in 2005. The Philippines is among 182 State Parties to this treaty and is obligated to implement its various provisions. The FCTC provides a clear roadmap, based on scientific evidence and international best practices, to guide countries on how to effectively and continually reduce tobacco use and exposure to tobacco smoke in order “to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke” (FCTC Article 3). Governments simply have to follow through on their commitments and implement their treaty obligations, but this has always been easier said than done. 

 

Implementation of the FCTC’s lifesaving policies to reduce tobacco use has been varied between and within countries and has focused primarily on reducing the demand for tobacco. For example, taxation is widely recognized as one of the most effective tobacco control policies, but cigarettes are significantly cheaper in LMICs compared to high-income countries. On this point, the Philippines has done fairly well, but as we will discuss later, the success of the 2012 sin tax reform and subsequent tax increases in 2019 were not easily achieved and could have been even more effective if not for industry interference and influence. Other demand reduction measures, such as a ban on tobacco advertising, promotion, and sponsorship (TAPS), requiring effective health warnings, protecting the public from exposure to tobacco smoke, encouraging tobacco cessation, and public education, have only been partially implemented through Philippine laws and policies; these will be described briefly below. Other demand reduction measures, such as product regulation to reduce tobacco product attractiveness, addictiveness, and toxicity, have not been implemented at all, while supply reduction measures, such as controlling illicit tobacco trade, limiting access by youths, and providing alternative livelihoods for tobacco farmers, are also suboptimal.

 

In their implementation reports to the WHO FCTC Conference of Parties, tobacco industry interference was the most common obstacle identified by Parties; other challenges include limited human and financial resources, a need for better enforcement of legislation, insufficient political support, and weak intersectoral coordination. As with other public health problems, weak health systems are limited by insufficient resources, but unlike viruses and parasites that do not have an industry that promotes the spread of disease (i.e. no malaria industry, just mosquitoes that need to be controlled and eliminated), some public health problems, such as tobacco, alcohol, and unhealthy food, have commercial entities driving them. These are often referred to as negative commercial determinants of health, because of their interference in public health policy development and implementation. This is why, despite knowing what works and what needs to be done, tobacco control progress has been haltingly slow.

 

While the FCTC was being negotiated in Geneva (2000-2003), Philippine Congress, after decades of “indecision,” deliberated and approved Republic Act (RA) 9211 or the Tobacco Regulation Act of 2003. This seemed to be aligned with the FCTC provisions being negotiated, but we now know that RA 9211 contains only some of the FCTC measures and applies them only partially. Yet, the industry claims it is a highly regulated industry! This is how RA 9211 compares with what the FCTC requires:

(1) The national ban on smoking in public places allows for smoking in indoor workplaces and public places, even as health and engineering authorities have declared that there is no safe level of exposure to tobacco smoke and that the only way to protect from secondhand smoke is to enforce 100% smoke-free public places;
(2) The comprehensive ban on TAPS required by the FCTC is shortchanged in RA 9211 by being limited to print, radio, TV, and outdoor billboards, and in addition, RA 9211 allowed for ineffective advertising restrictions before full restrictions on print, radio, and TV ads came into force four and a half years later. RA 9211 also still allows advertising and promotions at points of sale, as well as tobacco company sponsorships disguised as corporate social responsibility (CSR) despite CSR being a well-documented industry tactic to polish the public image of tobacco companies and influence policy makers and the public in order to weaken tobacco regulation;
(3) Bland text-only health warnings were required on the bottom 30% of the front of the tobacco package, an improvement from the illegibly useless text-only warnings printed at that time on one side panel of the pack, but actually a step backward from warnings required by Department of Health (DOH) in 1994 (under then Secretary Juan Flavier) to be placed on the bottom 25% of both front and back of the pack. Unknown to most Filipinos is the fact that the Philippine Tobacco Institute sued the DOH over these 25% text warnings, and in 2001 the case reached the Supreme Court, which ruled in favor of DOH. The 25% warnings were never implemented, however, as they were superseded by RA 9211, which, adding insult to injury, gave the industry 3 whole years to print the warnings on the bottom 30% of the front of the pack. RA 9211 also completely ignored the introduction of graphic (pictorial) health warnings (GHW) in Canada, Brazil, and Venezuela at that time;
(4) Legislators also inserted a “balanced policy” statement that unfairly gives equal weight to both public health protection and ensuring that tobacco industry interests are not adversely compromised, rather than giving priority to public health; and
(5) RA 9211 not only appointed the Department of Trade and Industry, which is pro-industry, as chair of the Inter-agency Committee-Tobacco (IACT) tasked with implementing this law (the DOH is only vice-chair, and not even co-chair, despite the “balanced policy” statement), but it also includes as members of the IACT a representative each of the tobacco industry and the National Tobacco Administration (NTA), despite the NTA having 5 tobacco industry representatives in its governing board. The Department of Agriculture is also an IACT member but is usually also represented by the NTA, thus providing clear over-representation of the tobacco industry. This is not only an obvious case of conflict of interests, where the industry being regulated is allowed to be its own regulator, but it is also a direct violation of FCTC Article 5.3.

 

In hindsight, RA 9211, though a tobacco regulatory milestone, was a pre-emptive strike of the industry against the FCTC as part of its strategy of promoting itself as being “part of the solution”. It is no surprise that the Philippine tobacco industry was described in 2004 as "the strongest tobacco lobby in Asia" and the Philippines as “among the world’s slowest nations to take tobacco control seriously.”

 

Since the ratification and entry into force of the FCTC in 2005, public health advocates have sought repeatedly to strengthen tobacco control and bring the law into compliance with the FCTC, but the industry has consistently fought to defeat any new legislation that might close the loopholes in RA 9211.

 

For example, the FCTC requires Parties to implement effective health warnings within three years of entry into force. For the Philippines, that would have been 2008, by which time GHWs were widely acknowledged as international best practice. Legislative proposals in the 14^th and 15^th Congresses to replace the ineffective text-only warnings with GHWs were fiercely opposed by the industry—to the extent of providing bribes to congressmen—and failed, despite the fact that cigarette packs with GHWs were being made in the Philippines and exported to Thailand at that time.

 

Faced with this setback, the DOH issued Administrative Order 2010-13, requiring that graphic health information be printed on tobacco packages: 30 percent in front (in addition to the existing 30 percent text-only warnings) and 60 percent at the back. Almost immediately, the tobacco industry challenged the DOH with no less than five separate court cases, which doomed the measure to limbo.

 

It wasn’t until 2014 when the GHW Law was passed, buoyed by the success of the Sin Tax Reform Law of 2012 (RA 10351), another major milestone for Philippine tobacco control that similarly was not achieved without difficulty and compromise. Even then, concessions to the industry included: 50% size instead of 85% (as required in Thailand, then the world’s largest), placement of GHWs in the lower rather than upper portion of principal display surfaces of packages; giving the industry 20 months (instead of 6 months) from publication of the GHW templates for full compliance, and requiring the IACT rather than DOH to monitor compliance.

 

Seemingly unsatisfied with those concessions, the industry tried to weaken the implementing rules and regulations (IRR), such as by arguing for a very narrow interpretation of the law and exclusion of products sold in duty-free stores. Fortunately, those attempts failed, but it took more than a year for the IRR to be finalized due to many instances of tobacco industry interference. Consequently, GHWs did not appear in the market until March 2016.

 

In 2011, again using the litigation tactic, the Philippine Tobacco Institute, representing the industry, challenged the Food and Drug Administration’s (FDA) authority to regulate tobacco products under the FDA Act of 2009 (RA 9711), claiming that the IACT under RA 9211 had sole authority to regulate tobacco products. This case remains pending in the Supreme Court and has prevented the FDA from regulating nicotine, flavors, and other ingredients in tobacco products despite their known negative impacts on health.

 

Even the internationally touted Sin Tax Reform Law of 2012 did not survive the legislative mill unscarred. Various case studies describe the challenges and achievements of the sin tax reform, so we will simply point out that the results of industry interference: final excise tax rates prescribed in the law were lower than initially proposed, although certainly much better than those proposed by the industry (which basically maintained the status quo). In addition, the law provided for a phased simplification of the four tax tiers over five years rather than an immediate shift to a unitary rate for all cigarette brands. Maintaining tax tiers was clearly important to the industry, so much so that, less than 3 months before the unitary rate was set to come into force in January 2017, industry allies in Congress filed HB 4144 to maintain the then two-tier structure. Whereas RA 10351 took more than a year of congressional deliberations (even with full support of the Department of Finance (DOF), DOH, and other government agencies), HB 4144 was approved by the House Ways and Means Committee after only two hearings seven days apart and subsequently approved in plenary eight days later. Fortunately, the Senate did not consider HB 4144 before January 2017, allowing the unitary rate to come into effect as scheduled.

 

Still, the industry continued its efforts to preempt further tax reforms. In December 2017, in the bicameral committee finalizing the Tax Reform for Acceleration and Inclusion (TRAIN) Law (RA 10963), pro-industry legislators inserted a provision (not found in either House or Senate bills) raising the excise tax rate by a marginal PHP 2.50/pack (or 12.5 centavos per stick). A similar tactic was used in 2019 when the Tobacco Tax Law of 2019 (RA 11346) was being deliberated in the Senate. While pro-health senators pushed for tax rates to be increased from PHP 35/pack to a minimum PHP 60/pack to as high as PHP 90/pack, pro-industry senators proposed a last-minute provision to tax heated tobacco products (HTP) and e-liquids at only 22% of the rates for cigarettes, which the DOF and health advocates were forced to accept in order to obtain the higher cigarette tax rate of PHP 45/pack.

 

In this way, the industry was able to legitimize HTPs and electronic nicotine delivery systems (ENDS, such as e-cigarettes) in the country. Pro-health legislators pushed back by proposing that HTPs and ENDS be required to carry GHWs, and this was approved, but clearly, it was necessary to raise the tax rates on these new products. Later in the 2019, supported by health advocates, the DOF succeeded in pushing for increased excise taxes on HTPs and ENDS (RA 11467), although not to the same level as cigarette taxes; however, RA 11467 also gave the Food and Drug Administration (FDA) the mandate to regulate HTPs and ENDS, prohibited access to  non-smokers and those below 21 years, and prohibited all flavors except plain tobacco and menthol.

 

Unsurprisingly, the industry is aggressively pushing to weaken the current regulatory policy for HTPs and ENDS. In 2019, the industry got a court injunction to stop the DOH and FDA from implementing regulations on HTPs and ENDS. In May 2021, pro-industry legislators succeeded in passing HB 9007 in the Lower House under the guise of regulation, when in reality it promotes the commercial interests of the industry and will make HTPs and ENDS more widely available by lowering the minimum age of access from 21 years to 18 years, allowing online marketing and sales, allowing multiple flavors that are attractive to teens, and replacing the FDA with the industry-friendly DTI as the regulatory agency for these health-harming products. Senator Ralph Recto has also sponsored the Senate version of this pro-industry bill (SB 2239), which is now in the period of interpellation. Escaping all logic, the sponsors of these pro-industry bills maintain that, because HTP and ENDS manufacturers are not making any health claims, these products should be regulated by the DTI rather than the FDA, even while they acknowledge that these products are not harmless to health and assert that these products are “less harmful alternatives to cigarettes” (an obvious health claim).

 

We are now seeing the industry once again spreading misinformation with its claims that it is part of the solution to the tobacco pandemic by offering reportedly less harmful alternatives to cigarettes (like it did with light/mild and low-tar cigarettes) to the point of promoting them as practically harmless products. At the same time, it continues to make and sell billions of cigarettes and continues to oppose more stringent cigarette regulation that would prevent youth uptake and help smokers quit.

 

In a nutshell, the industry is up to its usual tricks, albeit dressed up in shiny new electronic clothes. It is hijacking the political and legislative process, exaggerating its economic importance, manipulating public opinion (including through journalists and columnists) to focus away from the health, socio-economic, and environmental harms it causes, creating and supporting astroturf front groups that focus on “rights” to use the industry’s products, funding biased research in favor of its products while discrediting other research that proves their harmfulness, and intimidating governments with litigation.

 

Tobacco industry interference remains the main reason for the large and persistent gap between knowledge and action on tobacco control in the Philippines. That is not to say that this cannot be overcome and success achieved. We can learn from our own wins, such as the sin tax reform and GHW campaigns, as well as from other countries that are winning against the tobacco pandemic.

 

With the major price hikes resulting from the 2013 implementation of tobacco tax reforms and no other major policy intervention, smoking prevalence dropped from 29.7% in 2009 to 23.8% in 2015 or a relative decline of about 20% in a span of two short years. This was a historical drop in smoking rates that most countries take many more years to achieve, and it clearly shook up the local and transnational tobacco industry, particularly as the Philippine experience provides an excellent example to other countries of the effectiveness of large and fast tobacco tax increases. Of course, these smoking rates are still high and need to be reduced further in order to achieve the global target set by governments of cutting tobacco use by at least 30% by 2025 (relative to 2010).

 

We could also look to Australia, which began enacting tobacco control laws since the early 1990s and was once referred to by the industry as “one of the darkest markets in the world.” In 2019 overall adult smoking prevalence was 12.8%, with majority of daily smokers in their 40s and 50s, while the proportion of adolescents (14-17 years) and young adults (18-24 years), who have never smoked, has grown over time and is currently at 97% and 80% respectively. Within ASEAN, Singapore and Thailand have been tobacco control leaders and are also worth examining. As early as 1970, Singapore began introducing measures to promote a smoke-free lifestyle and in 1986 launched the National Smoking Control Program with the theme, "Towards a Nation of Non-Smokers." The industry has described Singapore as the “world’s most hostile environment,” and in 2020 it had a remarkably low smoking prevalence of 10.1%. [YD1] Thailand actively began implementing tobacco control policies in the late 1980s, which has successfully reduced overall smoking rates from 32% in 1991 to 23% in 2003 to 19% in 2017. Singapore and Thailand were the fourth and fifth countries in the world to implement GHWs in 2004 and 2005, respectively, and are also the first Asian countries to implement standardized (plain) tobacco packaging. The long and rich history of tobacco control in these and other countries holds many lessons for Philippine tobacco control.

 

Beginning with the end in mind is always good advice, and for tobacco control, it is an end to the tobacco pandemic or a future free from tobacco. There is no clear definition of a tobacco-free future, but common elements of a tobacco endgame include a goal of lowering smoking prevalence to as close to zero as possible (some countries have set a goal of less than 5% tobacco use prevalence), phasing out the commercial sale of tobacco, social denormalization of tobacco use, and zero uptake by youths.

 

Finland, also among the world’s tobacco control pioneers since introducing its Tobacco Act in 1976, was the first country in the world to legislate a tobacco endgame; its 2010 Tobacco Act amendment set an explicit objective of ending tobacco use by 2040. In 2016, this objective was extended to include other nicotine products and given an earlier deadline of 2030. Other countries that have set a goal of 5% or less are New Zealand and Ireland (by 2025), Scotland (2034), and Malaysia (2045). Clearly, <5% prevalence is an ambitious long-term goal, but such forward-looking goals provide a clear picture of what still needs to be achieved. Incidentally, Finland has demonstrated that it is possible to reduce smoking prevalence (14% as of 2018) while preventing regular e-cigarette use (1% daily use prevalence). The same can be observed in Brazil, which banned e-cigarettes in 2009 (except if registered as cessation aids) and had a smoking prevalence of 9.3% in 2018. Australia and Singapore also prohibit e-cigarettes unless regulated as cessation devices, but no manufacturer has sought for electronic smoking devices to be classified as such.

 

Towards this endgame goal, countries that have achieved much progress in tobacco control (including Australia, Singapore, Thailand, and Finland) have been guided by clear policies and plans of action that have been evaluated and revised from time to time. Such policies and plans are also comprehensive in their scope rather than taking an ad hoc, opportunistic, and piecemeal approach to the tobacco problem, which has been the approach in the Philippines over the past decade. A comprehensive approach to tobacco control means not only ensuring that a range of effective tobacco control measures are implemented but also situated within the larger public health context of the country. For example, Australia’s then Minister for Health and Ageing established a National Preventative Health Taskforce to develop “a comprehensive and lasting Preventative Health Strategy by mid-2009 to tackle the burden of chronic disease then caused by obesity, tobacco and excessive consumption of alcohol. The taskforce’s formative report “Australia: the healthiest country by 2020” presented the taskforce’s views, based on the best local and international research, on how to achieve this ambitious goal. This report was backed up by three detailed technical reports on obesity, tobacco (Tobacco control in Australia: making smoking history), and alcohol.

 

Among its recommendations to government, the taskforce recommended standardized (plain) packaging, which Australia subsequently legislated and in 2012 implemented. Standardized packaging may be considered a component of an endgame strategy in that it eliminates one of the main (and sometimes last) avenues of industry marketing (the package) and effectively denormalizes tobacco use (promoting cessation, discouraging uptake, and negatively influencing public perception of tobacco).

 

Of course, this was fiercely opposed by the industry both in Australian courts and through international trade and investment disputes, but Australia anticipated and was prepared for these challenges and won. The government not only had robust technical and legal support but also had strong political leadership from all government departments, including finance and trade, and not just the Ministry of Health.

 

This whole-of-government and whole-of-society approach has been identified as an essential mark of initiatives to successfully address the huge and growing burden of non-communicable diseases (NCD), which are primarily driven by tobacco, alcohol, unhealthy diets, and inadequate physical activity. This feature was also manifest in the broad range of social and political actors that contributed to the Philippine sin tax campaigns. Within the context of the 2030 sustainable development agenda, a comprehensive and whole-of-government/society approach also has the potential to accelerate the tobacco endgame, noting in particular that Sustainable Development Goal (SDG) 3 (ensure health and well-being for all, at every stage of life) includes strengthening the implementation of the WHO FCTC (Target 3a).

 

Such coalition building in tobacco control not only raises public awareness about tobacco harms but also denormalizes tobacco use and marginalizes the tobacco industry, weakening its influence on policy development and implementation. This is why the industry is constantly trying to normalize itself in the eyes of policy makers and the public (repeatedly emphasizing that it is a legal industry selling legal products, regardless of harms caused) and why it builds relationships with non-health (finance, trade, agriculture, labor, social welfare, education, law enforcement, environment, foreign affairs) sectoral partners and government officials. Even in developed countries, where tobacco use and the tobacco industry have been effectively denormalized and demonized, the industry is continuing to portray itself as a relevant stakeholder and “part of the solution” rather than part and parcel of the problem.

 

An excellent example of this is the ongoing industry attack on the Civil Service Commission (CSC) and DOH Joint Memorandum Circular (JMC) 2010-01 on Protecting the Bureaucracy from Tobacco Industry Interference, which requires transparency, accountability, and avoiding conflicts of interest and is based on the FCTC Article 5.3 implementing guidelines. The JMC is an effective obstacle to the industry’s divide-and-conquer and normalization strategy. In addition, it made the Philippines one of the first countries in the world to implement an Article 5.3 policy that has been recognized by other countries as international best practice for countering tobacco industry interference.

 

It is therefore important to continue monitoring, anticipating, and exposing industry interference, while also strengthening existing laws and policies like RA 9211 with a view to accelerating tobacco use cessation and ensuring that adolescents remain nicotine-free until their mid-20s, which will radically reduce youth smoking rates in the future. Such stronger demand reduction measures include prohibiting smoking in all indoor workplaces and public places, prohibiting all forms of tobacco advertising and promotion at point of sale (including online and retail product display), requiring standardized tobacco packaging with much larger GHWs, promoting broad access to smoking cessation services, regular mass media anti-tobacco campaigns. In addition, drastically more attention must be given to supply reduction measures, such as restricting the number and location of tobacco retail outlets, banning flavors (particularly menthol) and cigarette filters, raising the minimum age of access to 25 years, providing alternative livelihoods to tobacco farmers, and implementing a track-and-trace system to secure the tobacco supply chain and eliminate illicit tobacco trade.

 

Empowered by the Local Government Code, local governments can enact FCTC-compliant ordinances, strictly enforce the law, and promote healthy living, e.g. the Tobacco-free Generation (TFG) campaign of Balanga City. Typical of the industry, despite its rhetoric of not wanting youths to smoke, when Balanga passed its TFG ordinance to prevent tobacco sales to anyone born after the year 2000, the city was sued by the Philippine Tobacco Institute.

 

Fortunately, health advocates know that achieving a tobacco-free future is not a sprint but a marathon. Tobacco industry interference is expected, but there will always be people, who believe in truth and social justice, who will fight this good fight, hopeful that in the end, good will triumph over evil. The devastating toll of tobacco on individuals and society, the willful deception of the public by the tobacco industry, and our love for humankind compel us.

 

This article is produced under the Nagbabagang Kuwento (Burning Stories) Tobacco Control Media Program of the Probe Media Foundation Inc. supported by the Campaign for Tobacco-Free Kids.