Abstract

In 2016, the City Government of Balanga in Bataan passed an ordinance regulating the sale of tobacco products to all its citizens born on or after January 1, 2000, to protect the health of its citizens and maintain an environment that is conducive for the well-being, welfare, and learning of the youth of the city. This ordinance imposed one of the most comprehensive anti-smoking ordinances and among the most progressive in the country. It is based in the vision of the city to be a University Town. Prior to the ordinance the city has been strictly regulating tobacco and alcohol use since 2010 protect the health of its citizen.

The said ordinance is patterned after the effective measures stipulated by the WHO Framework Convention on Tobacco Control (FCTC) to which the Philippines have ratified two years after the enactment of R.A. 9211 or the Tobacco Regulation Act. The FCTC is an evidence-based treaty that reaffirms the right of all people to the highest standard of health and represents a paradigm shift in developing a regulatory strategy to address addictive substances. It was developed and adopted in response to the globalization of tobacco epidemic.

After the said ordinance was approved and passed by the City Council, the Philippine Tobacco Institute, representing multinational tobacco corporations, challenged the constitutionality of the said ordinance. In 2018, the Court of Appeals ruled that the Ordinance contravenes R.A. No. 9211 and therefore should be struck down as unconstitutional for being an ultra vires act.

The said decision of the Court of Appeals is premised upon the superiority of a municipal law (RA 9211) over a foreign law (FCTC) wherein it ruled that the foreign law finds no application in the city of Balanga because there is an existing national legislation which is RA 9211. However, since the FCTC is a foreign treaty ratified by the Senate, it can be argued that it also becomes part of the law of the land and has equal status to Acts of Congress [1]. Since the FCTC is a later law, the principle of lex posterior derogate priori should have prevailed.

This paper re-examines the ruling and arguments released by the Court of Appeals and seeks to establish whether or not the ordinance is unconstitutional based on the premise that FCTC being a later law supersedes and impliedly repeals the conflicting provisions of RA 9211.

Keywords: Tobacco Control; Tobacco-Free Generation; Litiagation; Tobacco Industry Interference

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