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Department of Health vs. Philip Morris Philippines
G.R. No. 202943
Philip Morris Philippines Manufacturing Inc. (PMPMI), by virtue of Article 116 of RA 7394 applied for a sales promotion permit through BFAD (now, FDA) for its Gear Up Promo. When more than fifteen (15) days elapsed without the BFAD formally acting upon the application, PMPMI inquired about its status. PMPMI was only verbally informed of the existence of a Memorandum issued by DOH prohibiting tobacco companies from conducting any tobacco promotional activities in the country. PMPMI filed another application for a sales promotional permit, this time for its Golden Stick Promo, which the BFAD refused; pursuant to a directive of the BFAD Director that all permit applications for promotional activities of tobacco companies will no longer be accepted.
PMPMI filed an administrative appeal before the DOH Secretary, assailing the BFAD’s denial of its Gear Up Promo and Golden Stick Promo applications. PMPMI maintained that under RA 9211, promotion is not prohibited but merely restricted, and that while there are specific provisions therein totally banning tobacco advertising and sponsorships, no similar provision could be found banning promotion. It also insisted that the denial of its promotional permit applications was tantamount to a violation of its right to due process as well as their right to property. DOH ruled that the intent and purpose of RA 9211 was to completely ban tobacco advertisements, promotions, and sponsorships, as promotion is inherent in both advertising and sponsorship. Aggrieved, PMPMI elevated the matter to the CA.
CA granted the petition and nullified the decision of the DOH. It ruled that the DOH is bereft of any authority to enforce the provisions of RA 9211 in view of the creation of the Inter-Agency Committee-Tobacco (IAC-Tobacco) under Section 29 of the said law, which shall have the “exclusive power and function to administer and implement the provisions of [RA 9211] x x x”. Thus, the CA ruled that the DOH wrongfully arrogated unto itself the authority given to the IAC-Tobacco to administer and implement the provisions of RA 9211, which includes regulation of tobacco promotions.
Whether or not DOH has the authority to rule on the case.
The Court finds that RA 9211 impliedly repealed the relevant provisions of RA 7394 with respect to the authority of the DOH to regulate tobacco sales promotion. The Court notes that both laws separately treat “promotion” as one of the activities related to tobacco: RA 7394 defines “sales promotion” under Article 4 , while RA 9211 speaks of “promotion” or “tobacco promotion” under Section 4 (l). The Court has judiciously scrutinized the above definitions and finds that there is no substantial difference between the activities that would fall under the purview of “sales promotion” in RA 7394, as well as those under “promotion” in RA 9211, as would warrant a delineation in the authority to regulate its conduct. In fact, the techniques, activities, and methods mentioned in the definition of “sales promotion” can be subsumed under the more comprehensive and broad scope of “promotion.” The Court agrees with the CA, that it is the IAC-Tobacco and not the DOH which has the primary jurisdiction to regulate sales promotion activities. As such, the DOH’s ruling, including its construction of RA 9211 (i.e., that it completely banned tobacco advertisements, promotions, and sponsorships, as promotion is inherent in both advertising and sponsorship), are declared null and void, which, as a necessary consequence, precludes the Court from further delving on the same. As it stands, the present applications filed by PMPMI are thus remanded to the IAC-Tobacco for its appropriate action.