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Warning: decision unconstitutional

| June 26, 2013

The Thai Tobacco Trade Association (TTTA) said yesterday that it was asking the Administrative Court to invalidate the Ministry of Public Health’s decision to impose new warnings on cigarette packs.

The TTTA, which represents more than 1,400 retailers across Thailand, described the ministry’s decision as ‘unconstitutional’.

An individual retailer and a wholesaler are joining TTTA’s suit, and Philip Morris (Thailand) is bringing a similar case.

Japan Tobacco has already filed a challenge.

A TTTA press note announcing the suit was included on the Philip Morris International website.

‘At issue is a ministry notification that mandates graphic health warnings on 85 per cent of the front and back of cigarette packs [up from 55 per cent currently],’ the press note said. ‘This rule was developed behind closed doors to avoid differences of opinion, without the input of the thousands of retailers whom the rule will burden most, and without the legal authority to impose this controversial requirement.’

Varaporn Namatra, executive director of the TTTA, said the ministry had refused to talk with the association even though the new rule would make it harder for retailers to do their jobs. “Everyone already knows that smoking is dangerous,” she said. “Thailand already has some of the biggest health warnings in the world. I can’t see why the new requirement is necessary, especially when it will just complicate the work of so many hard working retailers.

“We’re just trying to make a living and we play by the rules, and so should the Ministry. No one should be able decide these kinds of things behind closed doors. We have rights – starting with a right to be heard – which is why we are now asking the court to step in.”

The TTTA expects that the new regulation will lead to problems for retailers, including:

* Higher operational costs;

* A likely consumer shift toward cheaper, lower-margin roll-your-own tobacco, which is not subject to the new warnings yet makes up about 50 per cent of all tobacco sold in Thailand; and

* An increase in supply and demand on the black market, where products are less expensive to buy, highly profitable to sell, and often have smaller warnings or no warnings at all.

Retailers were not the only group who didn’t have a voice in the notification. The process excluded key government ministries that should have been able to participate, and closed the doors to adult smokers, wholesalers, distributors, manufacturers, importers and other parties that the requirement will burden.

Commenting on his decision to file a case, Danai Surawattanawan, a Chiang Mai-based wholesaler and the owner of the Saha Karnka store said: “Government should listen to all sides of an issue before making decisions that hurt people like me. That’s commonsense, but the Ministry didn’t listen.

“It’s trying to use powers that no one ever gave it. And it’s making major decisions without working with other government ministries or talking to the small business owners that its policies burden.

“I am not happy that I have been treated this way. Having been denied a voice in the debate, the only choice I now have is to ask the court to help me.”

‘The TTTA’s case centers on the fact that the ministry overstepped its authority under Thailand’s Tobacco Product Control Act by issuing a notification that conflicts with higher law,’ the press note said. ‘It also violated Thailand’s due process requirements because it excluded the public and those whom this requirement will impact from voicing their views and failed to adequately assess the potential negative consequences of the requirement.

‘The cases will show that the notification is unconstitutional and disproportionate; prevents businesses from engaging in free and fair competition; and disregards trademark protections under Thai and international law.

Commenting on Philip Morris (Thailand)’s filing, Onanong Pratakphiriya, the company’s manager communications and external affairs, said: “Given the negative impact that this policy will have on our trademarks and packaging, and the fact that the Ministry ignored our voice and the voices of thousands of retailers in enacting this rule, we have no choice but to ask the Court to intervene.

”Ultimately, this requirement is not about increasing the public’s awareness of the risks of smoking — which is universal. The ministry exempts half of the tobacco products sold in Thailand from the new warning. How does that make sense?

“In our view, this is a punitive measure.

“The ministry should have listened to all sides — and respected the rule of law — before imposing an illogical requirement that will change the marketplace so significantly.”

The parties are due to file their lawsuits before July 4 with the Bangkok Administrative Court.

A final decision is likely within 10 to 14 months.

Meanwhile, Japan Tobacco Inc is already suing the government over the plans to increase the size of health warnings on cigarette packs, claiming the move is unconstitutional, according to a story in the Bangkok Post.

JT filed its lawsuit with the Administrative Court on June 19, according to spokesman, Hisashi Sekiguchi.

Category: Breaking News

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