The Framework Convention Alliance for Tobacco Control

Tobacco industry challenge continues to delay Sri Lanka's warnings

By Dr. Olcott Gunasekera*
President, Sri Lanka National Federation on Smoking or Health

Sri Lanka's Minister of Health, Hon. Maitripala Sirisena, took a bold step in 2012 by announcing mandatory pictorial health warnings to cover 80 percent of the total area of a packet, package or carton of cigarettes. The effective date of implementation was 12 November 2012, which was later extended to 1 March 2013.

Today, more than a year has passed since the Regulations were published in the government Gazette but unfortunately because of a tobacco industry challenge, they have not yet come into force.

The Ceylon Tobacco Company (CTC) a subsidiary of British American Tobacco or BAT, thought it fit to challenge the Regulations as ultra vires the provisions of the law. The company ('Petitioner') contended that the regulations:

• Were 'in breach of the intellectual property rights of the Petitioner,
• Interferes with the Petitioner's trademark rights and
• Expropriates the Petitioner's trademarks and other rights'.

The President of the Appeal Court, after listening to counsel of both Parties, refused to issue an interim order to delay the coming into force of the Regulation. CTC appealed that judgement to the Supreme Court, which, after six postponements, finally ordered the regulations to be stayed until the main matter was decided by the Court of Appeal.

Among world's largest

The case was to be argued in the Court of Appeal on 7 November 2013 but was then postponed to 17 January 2014. Interestingly, the Supreme Court continually requested the Parties to come to a negotiated settlement regarding the percent coverage of the pictorial warnings. At 80 percent, the warnings would be among the largest in the world.

The Minister of Health would only agree to reduce the size to 75 percent of the front and back cover, which CTC rejected the suggestion, citing the situation in other countries of the Region, such as India.

Throughout the hearings it was obvious that CTC had the full backing of a transnational corporation, namely BAT, whose legal arm was up-to-date on all developments relating to the WHO Framework Convention on Tobacco Control (FCTC) worldwide. Counsel easily cited rulings favourable to the Petitioner.

On the other hand, Sri Lanka, a Party to the FCTC, was isolated. Like other FCTC Parties, it does not have an information base to fall back upon. The FCTC Secretariat or the WHO Tobacco-free Initiative should immediately develop a bank of court rulings that is accessible to the Parties.

Such an initiative was discussed at the Regional Workshop for South-East Asia on implementation of the WHO FCTC (New Delhi, 23-26 July 2013), and the need for such a mechanism was recognized in the first General Recommendation itself. It reads:

"All SEAR countries except Timor Leste have tobacco control legislation in place. Various regulations are being enforced and legal challenges are being faced. Therefore, legal assistance is required and a mechanism needs to be developed for this.
The tobacco industry raises common issues related to tobacco control laws – there is need for information sharing among countries and mechanisms for access to information from other countries."

*Dr. Gunasekera is a former Vice-Chair of FCA.

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