Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: Mahinda Samayawardhena, J. entertained a writ petition where the application sought certiorari for quashing the seizure and detention of the goods from his possession and to prohibit the respondents from seizing, detaining, and thereafter instituting and or continuing with any prosecution on that basis.

The story of the petitioner was that the cardboard boxes which contained cigarettes without any health warnings were allegedly seized and detained by the respondents during transportation and storage on the basis that such conduct of the petitioner violated Section 34 of the National Authority on Tobacco and Alcohol Act, 2006. The petitioner stated that such seizure upon failure to display health warnings on the “cardboard boxes” (which the Petitioner has named as “non-retail master cases”) was a misconstruction of the said Section and also against the intention of the legislature, which was to warn the end-user of the ill-effects of smoking.

The counsel for the petitioner submitted that case depended upon the meaning given to the word “carton” used in Section 34 of the Act. It was further stated that a bare reading of the Section highlighted that the scope was only limited to manufacturing, selling and offering for sale of only packets of tobacco products without health warnings.

On the contrary, the respondent contended that the stated Section was repealed and replaced by another Section which was read as, “Section 34A enacts in detail how to display health warnings. Then it is seen that this amended section covers manufacturing, importing, selling, offering for sale, supplying, distributing and storing of packets, packages and cartons containing tobacco products without health warnings.” Hence, it was further stated that after 16th amendment, Article 23 of the Constitution stated that ‘All laws and subordinate legislation shall be enacted or made and published in Sinhala and Tamil, together with a translation thereof in English.’ It was further noted that where there was any inconsistency between Sinhala text and English text, Section 7 of the Amending Act, 2015 came into force and gave prevalence to Sinhala text over English.

The Court further observed that Law in this regard was understood as it was stated in the Sinhala text, and not in the English text, which was only a translation of the Sinhala text. The Act had originally been enacted in Sinhala and Tamil languages. Hence it was unnecessary to understand the meaning of the word “carton” found in Section 34 of the English text as that was how the word “Sinhala text” found in Section 34 of the Sinhala text had been translated into English. If the English translation for “Sinhala text” as “carton” was incorrect; instead of “carton”, “cardboard box” or any other word or term was to be used. In short, the English word “carton” shall be understood by the meaning given to the Sinhala word “text”, and not vice versa.

 Court noted that It is abundantly clear that by the said amendment, the legislature wanted to extend the display of health warnings from packets, to packets, packages and cardboard boxes; and also to expand the activities from manufacturing, selling and offering for sale, to manufacturing, importing, selling, offering for sale, supplying, distributing and storing. That means, after the amendment, these cardboard boxes containing tobacco products, which were used inter alia for storage and transportation of packets of cigarettes, contained health warnings as prescribed in Section 34 of the amending Act. It was held that, “When the words of an Act are clear, there is no necessity to go into detail of the history of the law, the international conventions relating to the same and to apply various theories of interpretation of statutes to understand or to interpret the Law.

Hence, it was declared that the requirement was, the cardboard boxes contained tobacco products, which were used inter alia for storage and transportation of packets of cigarettes, contained health warnings as prescribed in Section 34 of the amending Act was completely in consonance with the purpose of the amending Act and the intention of the legislature. Thus, the petition was dismissed.[Ceylon Tobacco Company v. National Authority on Tobacco and Alcohol, 2019 SCC OnLine SL CA 9decided on 12-09-2019]

Hot Off The PressNews

Governor of Texas Greg Abbott while signing a Senate Bill 21 has increased the age to 21 from 18 to buy cigarettes, e-cigarettes or other tobacco products.

This would mean that anyone under the age of 21 years would not be eligible to buy the above stated.

The only exception that has come into the light is only the people who are military. The legislation would come into effect from 01-09-2019.

Penalty: Anyone caught breaking this new law will face a Class C misdemeanor and a fine of up to $500.

[Source: CNN]

[Picture Credits: Texas Tribune]

Cabinet DecisionsLegislation Updates

The Union Cabinet has given approval to accede to the Protocol under World Health Organization (WHO) Framework Convention on Tobacco Control to eliminate illicit trade in tobacco products. It will be applicable to both smoking and chewing or smokeless tobacco (SLT) forms as  negotiated and adopted under Article 15 of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC).  India is a party to WHO FCTC.

Details: The protocol lays down obligations of the parties. It spells out supply chain control measures that must be adopted by the parties viz. licensing of manufacture of tobacco products and machinery for manufacturing of tobacco products, due diligence to be kept by those engaged in production, tracking and tracing regime, record keeping, security; and measures to be taken by those  engaged in e-commerce, manufacturing in free-trade zones and duty free sales.

The protocol lists out offences, enforcement measures such as seizures and disposal of seized products. It calls for international cooperation in information sharing, maintaining confidentiality, training, technical assistance and cooperation in scientific and technical and technological matters.

Impact: Elimination of illicit trade in tobacco products through strengthened regulation will help in strengthening comprehensive tobacco control, leading to reduction in tobacco use which in turn, will result in reduction in disease burden and mortality associated with tobacco use.

Accession to such treaty will provide actionable alternatives against such prevailing practices that are affecting public health at large. India, being at the forefront of tobacco control, would be able to influence the international organizations including World Custom Organization in controlling such illicit trade.

The protocol to eliminate illicit trade in tobacco products is a path breaking initiative in strengthening global action against tobacco and is also a new legal instrument in public health. It is a comprehensive tool to counter and eventually eliminate illicit trade in tobacco products and to strengthen legal dimensions for international health cooperation.

Background: The WHO Framework Convention on Tobacco Control (WHO FCTC) is the first international public health treaty negotiated under the auspices of the WHO. The objective of FCTC is to provide a framework for supply and demand reduction measures for tobacco control at the national, regional and global levels.

One of the key tobacco supply reduction strategies contained in Article 15 of WHO FCTC envisages elimination of all forms of illicit trade and tobacco products, including smuggling, illicit manufacturing and counterfeiting. Accordingly, the said Protocol was developed and adopted by the Conference of Parties (COP) which is the governing body of FCTC. The protocol is divided into 10 parts and contains 47 Articles.