The Court of Appeals has upheld the ruling promulgated by a trial court that declared as unconstitutional an ordinance in the City of Balanga, Bataan imposing a total ban on the use, sale, distribution, and advertisement of tobacco products.
In a 13-page decision, the CA’s Special Sixteenth Division through Associate Justice Jane Aurora Lantion ruled that the City Council of Balanga transgressed the jurisdiction of Congress by passing Section 5 of Ordinance 09, which expands the scope of the prohibition on the use, sale, distribution, and advertisement of tobacco product as defined under Sections 5, 6,10 and 22 of Republic Act No. 9211 or the Tobacco Regulation Act of 2003.
Sections 5, 6, 10 and 22 of Republic Act 9211 ban smoking only within a specific number of public places and prohibits sale and advertisement of tobacco products in limited circumstances.
The ordinance took effect in 2017, but its implementation was stopped after the Balanga City Regional Trial Court, Branch 93 issued the assailed ruling on July 5, 2018.
The RTC branded the ordinance as “unreasonable and discriminatory” and tantamount to restriction or prohibition of free trade.
In upholding the lower court ruling, the CA noted that the ordinance prohibits not only the act of smoking in specified public places, but also the acts of selling, distributing, using, advertising and promoting tobacco products not only within the University Town but as far as three kilometers radius, which practically covers the entire developed portion of the city.
It noted that under RA 9211, the act of smoking is absolutely prohibited in specified public places such as centers of youth activity like schools and recreational facilities for minors, elevators and stairwells, areas that are fire hazards, inside buildings, hospitals and medical clinics and establishments, public transportation, conference halls and food preparation areas.
The law also provides that the prohibition on the sale or distribution of tobacco covers only 100 meters from any points of the perimeter of school, public playground or other facility frequented by minors.
“Clearly from the foregoing, the City Council of Balanga have overstepped Congress by passing an ordinance which imposes more prohibited acts than those specifief under national stature [RA 9211],” the CA said, in denying the petition for review filed by the Balanga City officials of the 2018 ruling of the trial court.
“Therefore, the challenged Ordinance should be struck down as invalid for being ultra vires [an act done without authority] since it contravenes RA 9211,” it declared.
The appellate court did not give weight to the claim of its local officials that the ordinance is consistent with the pronouncement of the President’s policy against smoking and in compliance with the State’s obligation under the World Health Organization’s Framework Convention on Tobacco Control (WHO FCTC), to adopt a comprehensive range of measures designed to reduced tobacco use and exposure to tobacco smoke.
“While the respondents-appellants claim that the challenged Ordinance was in conformity of (sic) the WHO FCTC, they cannot simply disregard the provisions of RA 9211 for the plain reason that in this country the latter law governs,” the appellate court said.
“Hence, between WHO FCTC and RA 9211, it is the latter law which should prevail. Therefore, the respondents-appellants in drafting the challenged Ordinance should have taken into consideration the provisions of RA 9211,” it said.
