Since last year's November announcement by the Minister of Health (“the Minister”) of impending tobacco control laws, the Minister has finally in exercise of the powers conferred on him by sections 14 and 15 of the Public Health Act ("the Act"), and with the approval of Cabinet, promulgated on the 17th May 2013, The Public Health (Tobacco Control) Regulations 2013.
The Regulations which are the subject of much controversy and criticism came into effect on the 15th July 2013 and essentially regulate the manufacture, distribution, marketing and use of tobacco and tobacco products. The Regulations are also designed to restrict the growth of tobacco use and/or reduce its demand over time, protect persons and the environment from tobacco smoke and prevent the elicit supply of tobacco products. The enactment of these Regulations is in keeping with Jamaica's obligation under the World Health Organization's Framework Convention on Tobacco Control, which Jamaica ratified in July 2005.
What do the Regulations require?
The Regulations as presently worded will affect the operations of several industries and require or provide for:
- New packaging and labeling of tobacco products and the display thereon of graphic warnings;
- The annual disclosure of general company information to the Minister by manufacturers, importers and exporters of tobacco and tobacco products;
- The prohibition of smoking or the holding of lit or electronic tobacco products in or within a five metre radius of the entrance, exit, window or ventilation of a public place; workplace or place of employment; public conveyances; all government owned or occupied buildings; health facilities including pharmacies; sports athletic and recreational facilities for the use of the public; educational institutions; bus stops and areas specifically for use by children amongst others;
- The prohibition of the sale of tobacco in or at the entrance or exit of specified areas; and
- The prominent display at eye level of no smoking signs of a particular size and character at designated areas.
Penalties for Breach of Regulations
Regulation 19 of Part III of the Regulations, states the penalties that persons (whether individual or corporate) will be liable on violation of the Regulations' terms.
In the case of an individual, he/she is liable on first conviction to pay a fine not exceeding $50,000.00 or to imprisonment for a term of not more than 3 months or both; on second conviction, to a maximum fine of $500,000.00 or maximum imprisonment of 6 months' or to both; and in the case of an offence committed subsequent to a second conviction, to imprisonment for a term not exceeding 12 months.
Where a corporate body contravenes the Regulations, it will be subject to a fine not exceeding $1,000,000.00 and the director or other corporate officer who authorized or acquiesced in the act or who knew or who using due diligence of care ought to have known that the commission or omission constituted an offence, will be held personally liable.
Exceptions and Transitional Period
It should be noted that despite the Regulations coming into effect on July 15, 2013, that tobacco or tobacco products purchased, ordered, acquired or due to have arrived in Jamaica for at least 6 months prior to the date of publication of these Regulations, are not affected. Also, business operations affected by the Regulations are given 6 months from the date of the publication of the Regulations to bring their respective operations into full compatibility with the provisions of the Regulations.
Major concerns with the Regulations have been raised and relate specifically to the wide definition given to certain terms such as "public place" which includes a structure, facility or enclosed place accessible to the public and "workplace" which is defined as any area or place used by persons during their employment, work or contract for services and any other area or place which is generally used during the course of employment, work or contract for services of any person.
By virtue of the said definitions, a person’s home for instance may now be a prohibited area if a plumber or domestic helper or other person is employed to carry out services there. Also affected are hotels, as by virtue of the said definitions, hotels in effect have become no smoking properties, similar to aircrafts, as all areas (enclosed or not) that are utilized by guests, would be construed as a “workplace”.
Remedial Action of Government
In light of the concerns raised and the possible implications the Regulations will have for certain industries, particularly Tourism, the Minister has been in dialogue with the Minister of Tourism and the Jamaica Hotel and Tourist Association (JHTA) and has established a task force in the hope that discussions will ensue and solutions amenable to both health and tourism sectors are arrived at. Further opposition to the Regulations have also caused the Government to announce on Sunday the 28th July 2013, that there will be a review of the Regulations which may take place as early as that same week.
In light of the opposition to the Regulations in its current form, it is likely that they will be amended in the short term. However, the Government must also recognize its obligations under the WHO’s Convention and should ensure that the Regulations in their final form, are still in keeping with the Convention.