Tobacco group to fight new health warnings in court

An individual retailer and wholesaler are joining the association’s suit, and Philip Morris (Thailand) is also bringing a similar case. At issue is a ministry notification that mandates graphic health warnings on 85 per cent of the front and back of cigarette packs. This rule was developed behind closed doors to avoid differences of opinion, without the input of the thousands of retailers whom the rule will burden most, and without the legal authority to impose this controversial requirement. 

Varaporn Namatra, executive director of the association, said yesterday that the association had asked many times, but the ministry refused.

“Everyone already knows that smoking is dangerous. Thailand already has some of the biggest health warnings in the world. I can’t see why the new requirement is necessary, especially when it will just complicate the work of so many hard working retailers. The association is just trying to make a living and it plays by the rules, and so should the ministry. No one should be able decide these kinds of things behind closed doors. The association has rights – starting with a right to be heard – which is why it is now asking the court to step in.”

The association expects the regulation will lead to real problems for retailers, including higher operating costs, a likely consumer shift towards cheaper, lower-margin, roll-your-own tobacco, which is not subject to the new warnings yet makes up about half of all tobacco sold in Thailand, and new incentives for supply and demand in the black market to increase – where products are less expensive to buy, highly profitable to sell and often have smaller warnings or no warnings at all. 

Retailers were not the only group that didn’t have a voice in the notification. The process excluded key government ministries that should have been able to participate and closed the doors to adult smokers, wholesalers, distributors, manufacturers, importers and other parties that the requirement will burden. 

Danai Surawattanawan, a Chiang Mai-based wholesaler and the owner of Saha Karnka store, said the government should listen to all sides of an issue before making decisions that hurt people like him.

“That’s common sense, but the ministry didn’t listen. It’s trying to use powers that no one ever gave it. And it’s making major decisions without working with other government ministries or talking to the small business owners that its policies burden. 

“I am not happy that I have been treated this way. Having been denied a voice in the debate, the only choice I now have is to ask the court to help me,” he said.

The association’s case centres on the fact that the ministry overstepped its authority under Thailand’s Tobacco Product Control Act by issuing a notification that conflicts with higher law. It also violated Thailand’s due process requirements because it excluded the public and those whom this requirement will impact from voicing their views and failed to adequately assess the potential negative consequences of the requirement.

The cases will show that the notification is unconstitutional and disproportionate, prevents businesses from engaging in free and fair competition and disregards trademark protections under Thai and international law. 

“Given the negative impact that this policy will have on our trademarks and packaging, and the fact that the ministry ignored our voice and the voices of thousands of retailers in enacting this rule, we have no choice but to ask the court to intervene. 

“Ultimately, this requirement is not about increasing the public’s awareness of the risks of smoking – which is universal. The ministry exempts half of the tobacco products sold in Thailand from the new warning. How does that make sense?

“In our view, this is a punitive measure. The ministry should have listened to all sides – and respected the rule of law – before imposing an illogical requirement that will change the marketplace so significantly,” said Onanong Pratakphiriya, manager of communications and external affairs at Philip Morris (Thailand). 

The parties will file their lawsuits before July 4 with the Bangkok Administrative Court. A final result is likely within 10-14 months. 

The Thai Tobacco Trade Association was established in January last year with the objective of reflecting the perspectives of tobacco-product retailers, wholesalers and distributors towards tobacco-related issues in order to solve problems and concerns within the tobacco trading industry.

Meanwhile, Japan Tobacco Inc, Asia s biggest listed cigarette maker, said it sued the government of Thailand over a plan to increase the size of health warnings on cigarette packages, claiming the move is unconstitutional. 

Thailand announced a plan in April to increase the size of graphic health warnings to 85 per cent of the cigarette package cover from the current 55 per cent. 

Japan Tobacco filed a lawsuit in an Administrative Court on June 19 to block the plan, spokesman Hisashi Sekiguchi said in a phone interview today. The proposal violates Thailand s constitutional provisions guaranteeing freedom of expression, Japan Tobacco said. The Bangkokbased court confirmed the Thai unit of the Tokyobased company has filed a lawsuit against Pradit Sintavanarong, the country s health minister and two other officials. 

Tobacco companies are engaged in a global effort fighting government moves to curtail cigarette advertising and curb smoking through graphic health warnings and elimination of branding. Australia has prohibited any tobacco company markings on cigarette packages, with New Zealand planning to do the same.