Legislation and tobacco control

After Jordan ratified the World Health Organisation Framework Convention on Tobacco Control (FCTC) in 2004, it enacted new legislation that encompasses a general prohibition on tobacco consumption indoors.

The government issued the Public Health Act No. 47\2008 (Health Act), imposing stricter measures against smoking in public places.

The issue of tobacco control in Jordan has been both controversial and challenging, as tobacco prevalence in the country remains among the highest globally, with 49.6 per cent of men and 5.6 per cent of women smoking, according to official statistics (not including young smokers and second-hand smokers).

The government realises that the Public Health Act has not been useful, hence it proposed amendments, which impose higher fines and imprisonment ranging from one month to six months of whoever smokes in public places.

Likewise, the amendments introduce higher fines and imprisonment ranging from three to six months on those, inter alia, smoking in schools or selling tobacco to minors.

Actually, Jordan’s attempts to control tobacco distribution and consumption are not new. The Preventing Tobacco Risks Regulation enacted in 1977 to ban smoking in public places during work hours proved to be useless. The Public Health Act also has been ineffective in reducing tobacco prevalence.

The government hopes that the new amendments will enable it to control tobacco distribution and consumption. Yet, the amendments to the Health Law are likely to change nothing.

The act itself and the regulation issued thereupon have been into force for nearly 40 years collectively, and follow the same approach: tobacco control by criminalising smoking in public.

That proved to be useless as enforcement mechanisms are impracticable quantitatively and qualitatively.

In other words, given the massive percentage of smokers, the law-enforcement bodies cannot arrest those who smoke in public places, especially if they enjoy some level of immunity, such as judges, public officials and lawyers.

To rectify the situation, additional steps can and must be taken.

First, health legislation must incorporate all the obligations Jordan committed to in the FCTC. These include stronger public awareness schemes; limiting interaction with the tobacco industry and banning partnerships and collaborative programmes therewith; strictly regulating activities described as “socially responsible”, such as sponsorships and donations.

Equally imperative, future free trade agreements (FTAs) must exclude tobacco from their coverage and should not grant any preferential treatment to the tobacco industry.

Future bilateral investment treaties (BIT) must also exclude tobacco investors from any sort of investor protection. Namely, investment in tobacco must not be recognised as an investment in BITs in the first place.

BITs must include language that exempts the tobacco industry from any preferential or non-discriminatory treatment, compared to other foreign investments.

Both FTAs and BITs must assert the full right of the state to restrict trade and investment based on policy and health considerations.

With respect to settling disputes, BITs must not give any right or resource to the tobacco industry to bring action against the government before international investment tribunals.

Second, Jordan must impose higher taxes, fees and charges on tobacco products whether domestic or foreign in equal fashion.

The current internal tax rate is 102 per cent (in addition to other specific rates and the regular sales tax), pursuant to Regulation No. 8\2000 (which is issued in light of the current Income Tax Law).

The government can amend the regulation on its own, without going to parliament, and significantly increase the aforesaid percentage.

Third, Jordan must apply the bound tariff rate indiscriminately on all tobacco product imports, and not the applied tariff. Simply put, Jordan must apply the highest tariff rate allowed under World Trade Organisation commitments, which ranges from 5 per cent to 150 per cent ad volarem (bound rate).

It is true that Jordan does apply the bound rate on most tobacco-related products, but still, tobacco itself has not been subjected to the bound tariff rate; its tariff line is 97 per cent ad volarem.

With regard to Jordan’s FTAs, the tariff rates on tobacco vary (not including the US-Jordan FTA to comply with the Gaddette Amendment).

For instance, the Canada-Jordan trade agreement imposes a rate that ranges between 5 per cent to 100 per cent on tobacco products, which is below the rate under the multilateral trade rules.

The discrepancy frustrates the wisdom behind imposing high multilateral tariff rates on tobacco products, as regional trade constitutes more than half of world trade.

Accordingly, Jordan could have done better in excluding tobacco from the tariff elimination equation.

Still, there is hope. Jordan can invoke the public policy and public health provisions in each FTA to restrict tobacco.

Controlling tobacco means reducing the prevalence of non-communicable diseases caused by its consumption and improving the overall quality of health, and thus boosting the economy.

The government has the larger stake as that will reduce the health bill that burdens the budget.

The government will consequently bring the deficit down by securing an additional source of income, and that will help it run a genuine sustainable development process.

Perhaps most importantly, Jordan will prove that it meets its international obligations and achieve what could not be achieved in the last 30 years.

The writer, lawyer and law professor at the University of Jordan, Faculty of Law, can be reached at [email protected]. He contributed this article to The Jordan Times.