Published On: Mon, Aug 5th, 2019

CA declares Bataan city’s anti-smoking ordinance unconstitutional

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‘The City Council of Balanga [has] overstepped Congress by passing an ordinance which imposes more prohibited acts than those specified under [RA 9211],’ says the CA

Published 11:41 PM, August 05, 2019

Updated 11:41 PM, August 05, 2019

MANILA, Philippines – The Court of Appeals (CA) has affirmed the Balanga City Regional Trial Court (RTC) Branch 93’s ruling declaring unconstitutional a city ordinance that imposes a total ban on the use, sale, distribution, and advertisement of tobacco products.

“Clearly from the foregoing, the City Council of Balanga [has] overstepped Congress by passing an ordinance which imposes more prohibited acts than those specified under national stature (RA 9211),” the CA’s Special 16th Division said in its 13-page ruling.

The local law in question is Ordinance No. 9, which expanded the scope of the ban on the use, sale, distribution, and advertisement of tobacco products as defined by Republic Act (RA) No. 9211 or the Tobacco Regulation Act of 2003.

Petitioners Philippine Tobacco Institute brought the issue to court after the local government in Balanga City, Bataan, refused to issue business permits for the sale and distribution of tobacco products because of the ordinance.

Balanga City RTC Branch 93 stopped the implementation of the ordinance in 2018, calling it “unreasonable and discriminatory” and tantamount to restriction or prohibition of free trade.

In denying the city officials’ petition for review, the CA said the ordinance “should be struck down as invalid for being ultra vires (an act done without authority) since it contravenes RA 9211.”

The CA noted how the ordinance prohibited using, selling, distributing, advertising, and promoting tobacco products within not only the university town, but also its 3-kilometer radius.

While city officials claimed the ordinance is in compliance with the President’s anti-smoking policy as well as the World Health Organization’s Framework Convention on Tobacco Control (WHO FCTC), the CA said “they cannot simply disregard the provisions of RA 9211 for the plain reason that in this country the latter law governs.”

“Hence, between [the] WHO FCTC and RA 9211, it is the latter law which should prevail. Therefore, the respondents-appellants in drafting the challenged ordinance should have taken into consideration the provisions of RA 9211,” the CA said in its decision penned by Associate Justice Jane Aurora Lantion. – Rappler.com

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