When Public Health Trumps Constitutional Rights: The Tobacco Control Bill, 2020
As the Joint Select Committee continues discussions on the proposed Tobacco Control Act (or “the Bill”) tabled in Parliament in 2020, consideration of fundamental human rights is one of the factors at the forefront of the balancing of interests. On the one hand, there is the health and well-being of the public, and on the other hand, there are the rights to freedom of expression and to seek, receive, distribute or disseminate information, opinions and ideas through any media.
These rights are relevant to the discussions as the Bill imposes a very comprehensive, almost absolute, ban on tobacco advertising and promotion. In addition to mandating the display of health warnings on at least 80% of each cigarette package, the Bill includes an express prohibition on tobacco advertising and promotion by communication through audio or visual means. The ordinary use of intellectual property is undermined as it prohibits brand-marking including in entertainment venues, retail outlets, and on vehicles and equipment, such as by use of words, trademarks and logos.
The Bill forbids tobacco promotion even through supporting worthy causes, and it provides for limited interactions between persons in the public sector and the tobacco industry. These restrictions are included in provisions that forbid the promotion of tobacco or relevant products by providing financial or other support to sporting or arts events, individual sports persons or teams, artistes or artistic groups, and welfare and other public interest organizations. The display of tobacco or relevant products in retail outlets and the sale of such products in a manner that allows persons to handle the product without the assistance of an agent of the seller prior to purchase, which would be quite normal for most goods in supermarkets, for example, are outlawed by the Bill. Restrictions imposed on public body employees include that the Bill forbids their involvement in any activities of the tobacco industry which advances or appears to advance the interest of the industry.
The Tobacco Control Act, with all its prohibitions, may lead one to wonder if all of that is really necessary. Some might argue that it is too far-reaching.
The Charter of Fundamental Rights and Freedoms in the Constitution of Jamaica protects the rights of persons in Jamaica, and at section 13(2), provides:
“Save only as may be demonstrably justified in a free and democratic society, Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.”
It seems fair to conclude that certain provisions of the Bill do infringe the rights to freedom of expression and to receive and disseminate information. The issue, therefore, is whether those provisions are demonstrably justified in a free and democratic society. The test from the Canadian case of R v Oakes  LRC (Const) 477 is instructive on this point and has been applied by Jamaican Courts. The test requires that the Government, having the burden of proof, proves that:
- the objective of the legislation in question is sufficiently important;
- there is a causal connection between the infringement and the objective on the basis of reason or logic;
- only the minimal impairment necessary to achieve the objective is being imposed; and
- there is proportionality between the effects of the legislation and the limitation.
The objective of protecting public health does seem sufficiently important to limit individual rights, but the existence of the other prongs of the test might not be as apparent. The State would need to provide evidence to prove that the provisions of the Bill that infringe constitutional rights are causally connected to the objective, which includes protecting the health of each person in Jamaica by restricting the use of tobacco and relevant products. If, for example, the proposed measures in the Bill do not actually restrict the use of said products, there would not be a causal connection between the measures and the objective. Furthermore, even if there is such a connection, the minimal impairment requirement demands that the law falls within a range of reasonable alternatives, otherwise the measures would not be demonstrably justified. Also, the effects of the legislation must be proportionate to the limitation, so it should not be that the potential benefit of the legislation is minuscule, while the detriment to the curtailed rights is significant.
Can the State come up with enough evidence to prove that limiting the rights are justified at the required standard?
Well, other States have done it. Provisions similar to those in the Bill have been upheld in Courts worldwide, as States are working to comply with obligations arising under the World Health Organization Framework Convention on Tobacco Control Treaty, to which Jamaica is a signatory. Courts in South Africa, Uganda, the United Kingdom, Panama, Sri Lanka, among other States, have held that provisions similar to those in the Bill do not violate their constitutions. Of course, constitutional provisions vary from country to country.
Does that mean the provisions of the Bill will be demonstrably justified in Jamaica?
Not necessarily. In RJR-MacDonald v Attorney General of Canada 3 LRC 653, the court held that provisions which prohibited tobacco advertising, the use of tobacco trademarks and the sale of tobacco products without health warnings were contrary to the freedom of expression which extends to commercial speech. However, this case turned on the fact that the court found that the government had not established a rational connection between the advertising ban and unattributed warnings, and a reduction in tobacco use.
There are often differences in the law being applied in different countries, and the Jamaican Government would have to make its own case by providing evidence to meet the standard applicable to our jurisdiction.
Understanding that, we may observe as the events unfold, to see if this will be one of those instances where provisions promoting public health, in the form of the Bill as it stands, will trump constitutional rights.
Kimberley Brown is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Commercial Department. Kimberley may be contacted via firstname.lastname@example.org or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.