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TABLE OF CONTENTS
PART I PRELIMINARY MATTERS
1. INTRODUCTION .................................. 01 2. OVERVIEW OF THE MANUAL .................................. 02 3. SMOKING PREVALENCE IN THE PHILIPPINES .................................. 03 3.1. What are tobacco products? 3.2. What are the effects of smoking? 3.3. How many are affected by tobacco smoking in the Philippines? 3.4. How much do Filipinos spend for tobacco use? 4. TOBACCO INDUSTRY IN THE PHILIPPINES .................................. 06 4.1. Who are the cigarette manufacturers operating in the Philippines? 4.2. How many stores in the Philippines sell cigarettes? 4.3. What is the impact of the tobacco industry on the Philippine economy? 5. TOBACCO CONTROL IN THE PHILIPPINES .................................. 07 5.1. What national tobacco control initiatives were made leading to RA 9211? 5.2. What national agencies are involved in the implementation of RA 9211?

PART II TOBACCO-RELATED OFFENSES

A. SMOKE-FREE .................................. 13 1. SMOKING IN PUBLIC PLACES (SEC. 5, RA 9211) .................................. 13 1.1. What does the law provide? 1.2. What are the elements of the violation? 1.3. How do you prove the violation? 1.4. What is the penalty for the violation? 1.5. What are examples of local ordinances that penalize smoking in absolutely smoke-free places? 1.5.1. Quezon City 1.5.2. Makati City/Mandaluyong 1.5.3. Manila City 1.5.4. Pasig City

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2. VIOLATION OF RULE ON DESIGNATED SMOKING AND NON-SMOKING AREAS (SEC. 6, RA 9211) .................................. 25 2.4. What is the penalty for the violation? 2.5. What are examples of local ordinances that require establishment of designated smoking areas? 2.5.1. Quezon City 2.5.2. Makati City/Mandaluyong City 2.5.3. Manila City 2.5.4. Pasig City 3. SALE TO MINORS VIA SELF-SERVICE FACILITIES (SEC. 7, RA 9211) .................................. 42 4. VIOLATION OF MINIMUM AGE SALES (SEC. 9, RA 9211) ................ 44 4.1. Sale or distribution of tobacco products to minors by any retailer 4.2. Purchase of cigarettes or any tobacco product from a minor 4.3. Sale of cigarettes or any tobacco product by a minor 4.4. Purchase of cigarettes or any tobacco product by a minor 4.5. Smoking of cigarettes or any tobacco product by a minor 4.6. What is the penalty for any minimum age sales offense? 4.7. What are examples of local ordinances that regulate the sale/purchase of tobacco products to/from minors? 4.7.1. Quezon City 4.7.2. Makati City 4.7.3. Manila City 4.7.4. Marikina City 5. SALE OF TOBACCO WITHIN SCHOOL PREMISES (SEC. 10, RA 9211) .................................. 59 C. HEALTH WARNINGS .................................. 62 D. ADVERTISING, PROMOTIONS AND SPONSORSHIPS ............................... 67 7. NON-COMPLIANCE WITH ADVERTISEMENT REQUIREMENTS (SEC. 14, RA 9211) .................................. 68 7.1. Mass media, in general 7.2. Print and outdoor advertisement 7.3. Cinema and television advertisement 7.4. Radio advertisement

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8. VIOLATION OF RESTRICTIONS ON ADVERTISING IN AUDIO, VIDEO AND COMPUTER CASSETTES/DISCS AND SIMILAR MEDIUM (Sec. 20, RA 9211) .................................. 74 9. VIOLATION OF RESTRICTION ON ADVERTISING ON THE INTERNET (Sec. 21, RA 9211) .................................. 77 10. ADVERTISEMENT BANS (SEC. 22, RA 9211) .................................. 80 10.1. What forms of advertising have been banned? 10.2. What do advertisement and advertising mean? 10.3. Mass media advertising 10.4. Cinema advertising 10.5. Outdoor advertising 10.6. What is the penalty for violating the ban on tobacco advertising? 11. RESTRICTIONS ON TOBACCO PROMOTIONS (SEC. 23, RA 9211) .................................. 87 11.1. Target Market and Participants 11.2. Communications to Consumers 11.3. Points-of-Sale 11.4. Telephone Communications 11.5. Placement of Props in Visual Media 11.6. Cigarette Brands on Smoking Related Paraphernalia 11.7. Cigarette Brands on Merchandise 11.8. Cigarette Brands on Products for Minors 11.9. Advertisements on Shopping Bags 12. VIOLATION OF RESTRICTIONS ON NAMING RIGHTS (SEC. 24, RA 9211) .................................. 106 12.1. Agreement with manufacturer and sports team 12.2. Naming an arena or stadium with a tobacco brand. 13. TOBACCO SPONSORSHIP (SEC. 26, RA 9211) .................................. 109 13.1. Violation of the sponsorship ban 13.2. Registration of tobacco brand name as company name 14. VIOLATION OF SAMPLING RESTRICTIONS (SEC. 27, RA 9211) .................................. 114

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PART III IMPLEMENTATION

A. IMPLEMENTATION AT THE NATIONAL LEVEL 1. APPLICATION OF RA 9211 .................................. 118 2. IMPLEMENTORS OF RA 9211 .................................. 118 3. INTER AGENCY COMMITTEE-TOBACCO (IAC-TOBACCO) .....................119 4. OFFENDERS UNDER RA 9211 .................................. 120 5. ACTION UPON DISCOVERY OF A CRIME UNDER RA 9211 .................. 121 5.1. Procedure for the issuance of a warrant of arrest 5.2. Procedure for making an arrest 6. LEGAL ACTIONS AND REMEDIES AGAINST OFFENDERS .................... 122 7. MONITORING AND ENFORCEMENT GUIDELINES (MEG) .................... 125 7.1. Purpose of MEG 7.2. Powers and responsibilities of the IAC-Tobacco under MEG 8. CRIMINAL ACTION .................................. 127 8.1. Who can institute criminal action? 8.2. Procedure for institution of criminal action 8.3. Steps when action initiated by mayor or PNP 8.4. Steps when crime discovered by IAC-Tobacco employee 8.5. Steps when crime discovered by any other person 9. CIVIL REMEDIES AGAINST VIOLATORS OF RA 9211 ........................... 138 10. ADMINISTRATIVE REMEDIES AGAINST VIOLATORS OF RA 9211 ..... 139 B. IMPLEMENTATION AT THE LOCAL LEVEL 1. INTRODUCTION: NATIONAL LAW VS. LOCAL LAW .............................. 140 2. MAKATI CITY .................................. 141 2.1. Profile of Implementation in Makati City 2.2. Steps in proceeding against individuals 2.3. Steps in proceeding against establishments 2.4. Enforcement Flowchart 3. MANDALUYONG CITY .................................. 147 3.1. Profile of Implementation in Mandaluyong City

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3.2. Steps in proceeding against individuals 3.3. Steps in proceeding against establishments 3.4. Enforcement Flowchart 4. MANILA CITY .................................. 153 4.1. Profile of Implementation in Manila City 4.2. Steps in proceeding against individuals 4.3. Steps in proceeding against establishments 4.4. Enforcement Flowchart 5. MARIKINA CITY .................................. 158 5.1. Profile of Implementation in Marikina City 5.2. Steps in proceeding against individuals 5.3. Steps in proceeding against establishments 5.4. Enforcement Flowchart 6. PASIG CITY .................................. 162 6.1. Profile of Implementation in Pasig City 6.2. Steps in proceeding against individuals 6.3. Steps in proceeding against establishments 6.4. Enforcement Flowchart 7. QUEZON CITY .................................. 166 7.1. Profile of Implementation in Quezon City 7.2. Steps in proceeding against individuals 7.3. Steps in proceeding against establishments 7.4. Enforcement Flowchart

APPENDIX
1. FORM A: COMPLAINT INITIATED BY PNP .................................. 171 2. FORM B: FORMAL CHARGE BY THE CITY MAYOR, BUILDING OFFICIAL OR MEMBER OF THE PNP .................................. 172 3. SAMPLE LETTER TO MAYOR/CONCERNED LOCAL GOVERNMENT OFFICIAL .................................. 173 4. SAMPLE FOLLOW-UP LETTER .................................. 174 5. LETTER OF APPRECIATION .................................. 175

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PART I PRELIMINARY MATTERS

1. INTRODUCTION 2. OVERVIEW OF THE MANUAL 3. SMOKING PREVALENCE IN THE PHILIPPINES 3.1. What are tobacco products? 3.2. What are the effects of smoking? 3.3. How many are affected by tobacco smoking in the Philippines? 3.4. How much do Filipinos spend for tobacco use? 4. TOBACCO INDUSTRY IN THE PHILIPPINES 4.1. Who are the cigarette manufacturers operating in the Philippines? 4.2. How many stores in the Philippines sell cigarettes? 4.3. What is the impact of the tobacco industry on the Philippine Economy? 5. TOBACCO CONTROL IN THE PHILIPPINES 5.1. What national tobacco control initiatives were made leading to RA 9211? 5.2. What national agencies are involved in the implementation of RA 9211?

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1. INTRODUCTION
Tobacco smoking is an epidemic that kills ten (10) Filipinos every hour. It is the number one cause of preventable deaths worldwide, more than AIDS, accidents, drugs, fire and homicides combined. Cigarette smoking has a wide range of effects. It causes heart disease, aneurysms, bronchitis, emphysema, and stroke, and makes pneumonia and asthma worse. Moreover, it not only affects the smoker, but secondhand and thirdhand smokers as well. In the Philippines, Republic Act No. 9211, the Tobacco Regulation Act of 2003 (hereinafter referred to as RA 9211), was enacted on June 23, 2003 as the first comprehensive national legislation on tobacco control. Among the main thrusts of the law is the promotion of a healthful environment, the dissemination of information regarding the health risks associated with tobacco use, and the regulation and subsequent ban of all tobacco advertisements and sponsorships.1 It also aims to regulate the labeling of tobacco products, and to protect the youth from starting a life-long addiction of tobacco use by prohibiting the sale of tobacco products to minors.2 At the same time, recognizing the interest of tobacco farmers, growers, workers and stakeholders, the law seeks to assist and encourage Filipino tobacco farmers to cultivate alternative crops in order to prevent economic dislocation.3 RA 9211 is divided into four policies: (1) smoke-free,4 (2) minors,5 (3) health warnings,6 and advertising, promotions, and sponsorships.7 Smoke-free policies include which places are absolutely smoke-free zones, and places which are required to have designated smoking and non-smoking areas. Minors include the prohibition on the sale to or from minors. Health Warnings relate to the mandatory printed warnings on cigarette packages. Lastly, advertising, promotions, and sponsorships include the restrictions on the various mediums of tobacco promotions, advertising, and sponsorships. Notably, despite the enactment of RA 9211 in 2003, smoking prevalence remains high, with smokers comprising more than one-third (1/3) of the ninety1 2 3 4 5 6 7

Rep. Act No. 9211 (2003), Sec. 3 (a),(b),(c). Rep. Act No. 9211 (2003), Sec. 3 (d),(e). Rep. Act No. 9211 (2003), Sec. 3 (f ). Rep. Act No. 9211 (2003), Secs. 5 & 6. Rep. Act No. 9211 (2003), Secs. 7-12. Rep. Act No. 9211 (2003), Sec. 13. Rep. Act No. 9211 (2003), Secs. 14-27.

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million Philippine population.8 That translates to more than thirty (30) million Filipinos who will suffer debilitating diseases caused by tobacco. According to the National Statistics Office website, the population of the Philippines as of August 2007 is 88,57 million.9 It is clear that the full and proper implementation of RA 9211 is needed. This manual seeks to aid in meeting that goal by providing simple, feasible, and practical guidelines in enforcing RA 9211 and local ordinances on tobacco control, and providing coherence and structure to the various methods that may be used to implement the law. In particular, this manual also provides the user with information on ordinance implementation in the following cities: Quezon, Manila, Makati, Mandaluyong, Pasig, and Marikina.

2. OVERVIEW OF THE MANUAL

This manual is intended for tobacco enforcers and tobacco advocates. Hence, this manual is not limited to a discussion of the implementation of the law, but also a discussion on how six local government units in Metro Manila enforce and implement their smoking ordinances. These local government units are Makati, Mandaluyong, Manila, Marikina, Pasig and Quezon Cities. Hence, the manual has been divided into three parts: 1. Introduction. This part provides a brief background of tobacco in the Philippines: its use, industry, and the history of the Tobacco Regulation Act of 2003 (RA 9211). 2. Tobacco-related offenses. This part is divided according to the different offenses that may be committed by individuals or establishments. A discussion on the legal bases, elements, evidence needed to prove the violation, and penalty meted out to the violator is made. The offenses have been outlined following that of RA 9211, and are divided according to four categories: smoke-free, minors, health warnings, and advertising, promotions, and sponsorships. Acts which are punishable under a local ordinance are inserted under the relevant section.

8 Petition by Framework Convention On Tobacco Control Alliance Philippines (FCAP) entitled An Urgent Appeal to Her Excellency, Gloria Macapagal-Arroyo: STOP THE KILLER IN OUR MIDST, published in the Philippine Daily Inquirer and Manila Bulletin on June 17, 2001 and the Philippine Star, Peoples Journal, and Abante on June 18, 2001. 9 < http://www.census.gov.ph>

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3. Implementation. A separate chapter was provided for the enforcement procedure in order to provide a clearer view of the overall process. The procedures for various stages of enforcement are included, such as arrest and the institution of a criminal action. A section is also provided for the procedure to apply in certain cities in Metro Manila. This manual aims to be as practical and comprehensive as possible. As to the enforcement, procedure, guidelines and flowcharts; local enforcement officers were consulted. The manual aims to serve as (1) a guide for trainors, and (2) a reference book for issues on the implementation of tobacco control. Included in the Appendix are the necessary forms and letters needed for the implementation of RA 9211 and/or the pertinent laws on tobacco control.

3. SMOKING PREVALENCE IN THE PHILIPPINES

3.1 What are tobacco products? Aside from regular cigarettes, the following are also tobacco products: Spit tobacco or smokeless tobacco - Spit tobacco, also known as smokeless tobacco, is tobacco that is placed inside the mouth. Cigars, cigarillos, and pipe tobacco; Bidis These are thin cigarettes of tobacco wrapped in leaves and tied with colourful strings; and Kreteks or clove and other herbal cigarettes.10 3.2. What are the effects of smoking? First hand smoking Cigarette smoking is a major cause of the following cancers: lung, voice box (larynx), mouth (oral cavity), throat (pharynx), bladder, the swallowing tube connected to the stomach (esophagus), Smoking is also linked to the following cancers: pancreas, cervix, kidney, stomach, some leukemias. Only about half of the deaths related to smoking are from cancer. Smoking is also a major cause of heart disease, aneurysms, bronchitis, emphysema, and stroke, and it makes pneumonia and asthma worse.

10

British Columbia Health Link, The Harmful Effects of Tobacco Products. Available online at <http:// www.healthlinkbc.ca/healthfiles/hfile30d.stm> (last accessed:February 19, 2009).

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Using tobacco can damage a womans reproductive health and hurt babies. Tobacco use is linked with reduced fertility and a higher risk of miscarriage, early delivery (premature birth), stillbirth, infant death, and is a cause of low birth-weight in infants. It has also been linked to sudden infant death syndrome (SIDS). Smoking has been linked to other health problems, too, including gum disease, cataracts, bone thinning, hip fractures, and peptic ulcers. It is also linked to macular degeneration, an eye disease that can cause blindness. Smoking can cause or worsen poor blood flow in the arms and legs (peripheral vascular disease or PVD.) Even worse, surgery that aims to improve the blood flow often doesnt work in people who keep smoking. Because of this, many surgeons who work on blood vessels (vascular surgeons) wont do certain surgeries on patients with PVD unless they stop smoking. Studies looking at male smokers have found that they are more likely to have sexual impotence (erectile dysfunction) the longer they smoke, which may be due to the problem with blood flow. 11 Second hand smoking: Secondhand smoke, also known as environmental tobacco smoke (ETS), is a mixture of the smoke given off by the burning end of a cigarette, pipe or cigar and the smoke exhaled from the lungs of smokers. It can cause or exacerbate a wide range of adverse health effects, including cancer, respiratory infections, and asthma. 12 Third hand smoking Thirdhand smoke is residual tobacco smoke contamination that remains after the cigarette is extinguished. Toxins that are found in third hand smoke are cyanide, arsenic and lead. These dangerous substances have been found to linger on upholstery, furniture, clothing, toys, and carpeting long after the smoke has gone away. Children are uniquely susceptible to thirdhand smoke exposure and can cause them cancer and lower IQ. The vulnerability of children is due to the fact that they intake twice the amount of dust particles as adults and infants explore objects with their mouths. 13

11

12

13

American Cancer Society, Cigarette Smoking. Available online at <http://www.cancer.org/docroot/PED/ content/PED_10_2X_Cigarette_Smoking.asp?sitearea=PED> (last accessed: January 19, 2009). California Environmental Protection Agency. Identification of Environmental Tobacco Smoke as a Toxic Air Contaminant. Executive Summary. June 2005. Associatedcontent.com, How Third Hand Smoke Affects Children. Available online at <http://www.ass ociatedcontent.com/article/1395652/how_third_hand_smoke_effects_children.html> (last accessed: February 19, 2009)

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3.2.How prevalent is tobacco smoking in the Philippines? Smoking among adults: More than one-third (1/3) of the total Philippine population of over ninety (90) million people14 smokes, making the Philippines one of the countries with the highest number of smokers, second in Southeast Asia and among the top fifteen (15) countries worldwide. Smoking prevalence among adults aged twenty (20) years and above is over fifty six percent (56%) for males and about twelve percent (12%) for females. An overwhelming majority of smokers belong to the least educated group (46%) who are not well-informed of the deadly consequences of tobacco and how tobacco contributes further to their poverty.15 Smoking among children: In 2000 and 2003, approximately four in ten students in the Philippines reported ever smoking cigarettes: 42.8% in 2000 and 41.9% in 2003. Adolescent boys were significantly more likely than adolescent girls to have ever smoked. Approximately one in eight students who had smoked cigarettes reported smoking their first cigarette before age 10 years: 12.9% in 2000 and 12.7% in 2003, with no significant difference between adolescent boys and girls.16 Effects on Filipinos: The table below shows the mortality rates from cancer, respiratory and circulatory diseases from smoking: 17
Disease Trachea, lung and bronchius cancer Lip, oral cavity and pharynx cancer Respiratory disease Ischemic heart disease Stroke Other diseases of the circulatory system All causes Male Number Rate 3811 52.3 1000 14.2 7384 120.7 16057 257.0 12467 204.8 7737 135.4 144931 2265.2 Female Number Rate 1281 16.6 635 52.2 3574 52.2 11141 177.1 9825 150.4 6803 107.0 103311 1553.7 Ages 35+ 35+ 35+ 35+ 35+ 35+ 35+

* Numbers of deaths/world age-standardized mortality rate per 100,000 population.

14 Central Intelligence Agency, The World Fact Book, available online at https://www.cia.gov/library/publications/the-world-factbook/print/rp.html. (last accessed February 11, 2009.) 15 2003 National Nutrition and Health Survey. 16 M. Miguel-Baquilod, M.D,, Tobacco Use Among Students Aged 13--15 Years --- Philippines, 2000 and 2003, citing the 2003 WHO Global Youth Tobacco Survey. Available online at http://ncadi.samhsa.gov/ govpubs/mmwr/vol54/mm5404a3.aspx (last accessed: January 30, 2009). 17 World Health Organization, WHO Mortality Data Base for the Philippines (2003).

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3.3. How much do Filipinos spend for tobacco use? The poorest households in the Philippines earn approximately P2,800 a month.18 Of this amount, they spend roughly 2.5% on tobacco. This is greater than their expenditure on health (1.3%) and education (1.6%). Such an imbalance tends to lead to tobacco-related diseases, which in turn lead to further losses in income and productivity. The additional burden of shelling out for medicine and treatment may then drive them deeper into poverty.19

4. TOBACCO INDUSTRY IN THE PHILIPPINES

4.1. Who are the cigarette manufacturers operating in the Philippines? In 2005, the market share was dominated by Fortune Tobacco Corporation (55.9%), followed by Philip Morris Philippines Manufacturing, Inc. (30.5%), and La Suerte Cigar and Cigarette Factory (8.6%).20 4.2. How many stores in the Philippines sell cigarettes? There are about three hundred thousand (300,000) retail outlets for cigarettes, forty thousand (40,000) of which are located in Metro Manila. About forty percent (40%) of cigarette sales are made through major grocery outlets and sari-sari stores and ten percent (10%) from other grocery outlets. Cigarette sales from tobacco specialists, petrol stations, hotels, restaurants and catering outlets account for five percent (5%) each and the remaining twenty-five percent (25%) of sales volume is achieved through street vendors, peddlers, and unlicensed underground operators. At present, vending machines are not a significant outlet due to their inflexibility and cost of operation.21 4.3. What is the impact of the tobacco industry on the Philippine Economy? The Philippines is a major exporter of Virginia and Burley tobacco to the European and Asian markets. The National Tobacco Administration (NTA) reported that, in 2007, the countrys tobacco production was valued at around P1.96 billion; in the same year, the industry also registered P67.11 million worth of exports, although its contribution to total exports declined by almost 60% from 2005 to 2007. In 2003, the industry also contributed about P25.66 billion of income to the government through excise taxes, duties, and other taxes
18 National Statistics Office, 2006 Family Income and Expenditure Survey. 19 Chernobyl Diones and Ruby Anne Lemence, No Smoking, Business World Online. Available online at: http://www.bworldonline.com/BW010909/content.php?id=060. (last accessed: January 30, 2009). 20 South East Asia Tobacco Control Alliance [hereinafter referred to as SEATCA] Philippine Report Card, citing: World Cigarettes 2006, ERC Group. 21 Ibid.

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collected from tobacco products.22 At the regional level, the tobacco industry is the main economic activity of farmers in the Ilocos Region. Around 1.2 million Ilocanos, including some 40,000 farmers, depend on the tobacco industry. Furthermore, tobacco has been the most profitable crop in the region. The 1997 data of NTA showed that a farmer can earn approximately P36,561 per hectare of Virginia tobacco. The returns on tobacco was nearly four times as much as the return per hectare of yellow corn and more than twice the return on palay, mongo, peanuts, and sweet potatoes.23

5. TOBACCO CONTROL IN THE PHILIPPINES

5.1. What national tobacco control initiatives were made leading to RA 9211?
Since 1987, a series of campaigns were implemented to regulate the use of tobacco products, involving not only the government sectors, but also advocates from private and non-governmental organizations. The following events were instrumental in finally pushing for a national legislation against tobacco:
Year
1992 1993 1994 1999 2003 2003 2005

Tobacco Control Events / Provisions

Placement of health warning on the effects of tobacco Recommendations on labeling and advertisement Conduct of counter-marketing campaign Promotion of protection from tobacco smoke Philippine became a signatory to the FCTC Enactment of RA 9211 Tobacco Regulation Act FCTC Ratification

Proponent
Philippine Consumer Act (Rep. Act No. 7394 of 1992)
DOH A.O. No.10 s.1993 (Rules and Regulations on Labeling and Advertisement of Cigarettes)

Yosi Kadiri, Department of Health Philippine Clean Air Act (Rep. Act No. 8749 of 1999)

Philippine Senate

Globally, the World Health Organization Tobacco-Free Initiative (WHO-TFI) was established in 1998 to curb the tobacco epidemic. Its treaty instrument, the Framework Convention on Tobacco Control (FCTC), became precedent setting, as it became the first treaty negotiated under the auspices of World
22 Chernobyl Diones & Ruby Anne Lemence, No Smoking, Business World Online, available online at: http://www.bworldonline.com/BW010909/content.php?id=060. (last accessed: January 30, 2009). 23 Ibid.

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Health Organization and has been the most widely embraced treaty in the history of the United Nations. The FCTC, the first public health treaty negotiated under the World Health Organization (WHO) acknowledges the right of all people to the highest standard of health. The said treaty was developed as a response to the recognition that tobacco epidemic is a global problem coupled with serious consequences. The FCTC is an evidencebased treaty that reaffirms the right of all people to the highest standard of health. It represents a paradigm shift in developing a regulatory strategy to address addictive substances; in contrast to previous drug control treaties, the WHO FCTC asserts the importance of demand reduction strategies as well as supply issues. From the first preambular paragraph, which states
WHO FCTC
Core Demand Reduction Provisions Price / tax policies 24 Protection from exposure to tobacco smoke25 Regulation of the contents of tobacco products27 Regulation of tobacco disclosure28 Packaging and labelling of tobacco products (2006)29 Education, communication, training and public awareness31 Tobacco advertising, promotion and sponsorship (2008)33 Tobacco dependence and cessation35 Core Supply Reduction Provision Illicit trade in tobacco products37 Sales to and by minors38 Provision of support for economically viable alternative activities40 Minors39 Programs and projects41 Warning on cigarettes packages30 Information program32 Staged implementation from warning to ban in advertising; restriction on promotion; naming rights; restriction to ban on sponsorships34 Programs and projects36 Prohibit smoking in public places with designated smoking areas26

RA 9211

24 WHO Framework Convention on Tobacco Control [hereinafter referred to as FCTC], Article 6. 25 Ibid., Article 8. 26 Rep. Act No. 9211 (2003), Secs. 5, 6. 27 FCTC, Article 9. 28 FCTC, Article 10. 29 FCTC, Article 11. 30 Rep. Act No. 9211 (2003), Sec. 13. 31 FCTC, Article 12. 32 Rep. Act No. 9211 (2003), Secs. 35, 25. 33 FCTC, Article 13. 34 Rep. Act No. 9211 (2003), Secs. 16-26. 35 FCTC, Article 14. 36 Rep. Act No. 9211 (2003), Sec. 33. 37 FCTC, Article 15. 38 FCTC, Article 16. 39 Rep. Act No. 9211 (2003), Secs 7-12. 40 FCTC, Article17. 41 Rep. Act No. 9211 (2003), Sec. 33.

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that the Parties to this Convention are determined to give priority to their right to protect public health, the WHO FCTC is a global trend-setter. The Philippines became a signatory in September 23, 2003. The Senate in turn ratified this treaty in April 25, 2005. Republic Act No.9211, the Tobacco Regulation Act of 2003, was enacted as the first comprehensive national legislation on tobacco control. Five out of the eight core demand reduction provisions and two out of the three core supply reduction provisions of the FCTC were addressed in this Act. The WHO FCTC is divided into core demand reduction provisions and core supply reduction provisions. The core demand reduction provisions have several stipulations that are not provided for in RA 9211, such as the price, non-price, and tax measures to reduce the demand for tobacco. Another addition in the treaty are mechanisms for scientific and technical cooperation and exchange of information which are set out in Articles 2022. The WHO FCTC also provides for regulation of the contents of tobacco products, which are not touched by RA 9211. Lastly, Article 9-10 of the WHO FCTC specifically provides that the adoption and implementation of measures requiring manufacturers and importers of tobacco products to disclose to governmental authorities information 42 about the contents and emissions of tobacco products be in accordance with the partys national law.43 Unfortunately, RA 9211 does not address the regulation of tobacco product emission and toxic constituents. With the core supply reduction provisions, stipulations on the illicit trade in tobacco products are an added aspect in the WHO FCTC which are not included in RA 9211. 5.2. What sectors are involved in the implementation of RA 9211? The administration and implementation of RA 9211 was tasked to the Inter-Agency Committee Tobacco (IAC-Tobacco) chaired by the Secretary of the Department of Trade and Industry and co-chaired by the Secretary of the Department of Health. The other nine members are representatives from the following offices: Department of Agriculture, Department of Justice, Department of Finance, Department of Environment and Natural Resources, Department of Science and Technology, Department of Education, National Tobacco Administration, Tobacco Industry, a Non-

42 FCTC Articles 20, 22. 43 FCTC Articles 9 & 10.

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Governmental Organization involved in public health promotion. The IACTobacco formulated the Implementing Rules and Regulation governing RA 9211. While the inter-agency committee was given authority to promulgate rules and regulations necessary for effective implementation of RA 9211,44 it cannot impose administrative sanctions because the law creating it does not grant to it quasi-judicial functions. Because of this, it does not have the power to issue subpoenas and to declare contempt of court. In accordance to the commitment of the Department of Health to address the tobacco problem, the National Tobacco Prevention and Control Program was established in January 2007. The office implements a comprehensive, systematic and integrated program geared to prevent and control tobaccorelated diseases consistent with RA 9211. Under Section 16 of the Local Government Code, every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. This is known as the General Welfare Clause. Pursuant to this, local government units like cities, within their respective territorial jurisdictions, shall, among others, promote the health and safety of their inhabitants. Hence, local government units like cities can institute cases against violators of anti-tobacco laws, implement the law, and enact ordinances to further implement tobacco control.45

44 Rep. Act No. 9211 (2003), Sec. 39. 45 Under Section 455 (b) (2) of the Local Government Code, the City Mayor shall enforce all laws and ordinances relative to the governance of the city. Pursuant to such a duty, the City Mayor shall issue such executive orders for the faithful and appropriate enforcement and execution of the laws and ordinances. Under Section 458 of the Local Government Code, the Sangguniang Panglungsod shall approve ordinances and pass resolutions necessary for an efficient and effective city government.

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PART II TOBACCO-RELATED OFFENSES

A. SMOKE-FREE 1. SMOKING IN PUBLIC PLACES (SEC. 5, RA 9211)
Local ordinances: - Quezon City (1.5.1) - Makati City (1.5.2) - Mandaluyong (1.5.2) - Manila City (1.5.3.) - Pasig City (1.5.4)

2. VIOLATION OF RULE ON DESIGNATED SMOKING AND NONSMOKING AREAS (SEC. 6, RA 9211)

Local ordinances: - Quezon City (2.6.1) - Makati City (2.6.2) - Mandaluyong (2.6.2) - Manila City (2.6.3.) - Pasig City (2.6.4)

B. MINORS 3. SALE TO MINORS VIA SELF-SERVICE FACILITIES (SEC. 7, RA 9211) 4. VIOLATION OF MINIMUM AGE SALES (SEC. 9, RA 9211)
- Sale or distribution of tobacco products to minors by any retailer (4.1) - Purchase of cigarettes or any tobacco product from a minor (4.2) - Sale of cigarettes or any tobacco product by a minor (4.3) - Purchase of cigarettes or any tobacco product by a minor (4.4) - Smoking of cigarettes or any tobacco product by a minor (4.5) Local ordinances: - Quezon City (4.8.1) - Makati City (4.8.2) - Manila City (4.8.3) - Marikina City (4.8.4)

5. SALE OF TOBACCO WITHIN SCHOOL PREMISES (SEC. 10, RA 9211)

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C. HEALTH WARNINGS 6. FAILURE TO PLACE PROPER WARNING IN TOBACCO PACKAGES (SEC. 13, RA 9211) D. ADVERTISING, PROMOTIONS, AND SPONSORSHIPS 7. NON-COMPLIANCE WITH ADVERTISEMENT REQUIREMENTS (SEC. 14, RA 9211)
- Mass media, in general (7.1) - Print and outdoor advertisement (7.2) - Cinema and television advertisement (7.3) - Radio advertisement (7.4)

8. VIOLATION OF RESTRICTIONS ON ADVERTISING IN AUDIO, VIDEO AND COMPUTER CASSETTES/DISCS AND SIMILAR MEDIUM (Sec. 20, RA 9211) 9. VIOLATION OF RESTRICTION ON ADVERTISING ON THE INTERNET (Sec. 21, RA 9211) 10. ADVERTISEMENT BANS (SEC. 22, RA 9211)
- Mass media advertising (10.3) - Cinema advertising (10.4) - Outdoor advertising (10.5)

11. RESTRICTIONS ON TOBACCO PROMOTIONS (SEC. 23, RA 9211)

- Target Market and Participants (11.1) - Communications to Consumers (11.2) - Points-of-Sale (11.3) - Telephone Communications (11.4) - Placement of Props in Visual Media (11.5) - Cigarette Brands on Smoking Related Paraphernalia (11.6) - Cigarette Brands on Merchandise (11.7) - Cigarette Brands on Products for Minors (11.8) - Advertisements on Shopping Bags (11.9)

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12. VIOLATION OF RESTRICTIONS ON NAMING RIGHTS (SEC. 24, RA 9211)

- Agreement with manufacturer and sports team (12.1) - Naming an arena or stadium with a tobacco brand (12.2)

13. TOBACCO SPONSORSHIP (SEC. 26, RA 9211)

- Violation of the sponsorship ban (13.1) - Registration of tobacco brand name as company name (13.2)

14. VIOLATION OF SAMPLE RESTRICTIONS (SEC. 27, RA 9211)

A. SMOKE-FREE 1. SMOKING IN ABSOLUTELY SMOKE-FREE AREAS

1.1 What does the law provide? Smoking is absolutely prohibited in certain public places.46 This means that the establishment of and the smoking in designated smoking areas in these public areas are likewise not allowed. The prohibition is absolute. 1.2 What are the elements of the violation? Violation by an individual: For a person to be charged under this offense, the following elements must be present: (1) There is a person smoking. A person is considered to be smoking when he carries a lighted cigarette or other tobacco products, even if he is not smoking it.47 A tobacco product is any product that consists of loose tobacco that contains nicotine and is intended for use in a cigarette, including any product containing tobacco and intended for smoking or oral or nasal use.48

46 Rep. Act No. 9211 (2003), Sec. 5. 47 Rep. Act No. 9211 (2003), Sec. 4 (p). 48 Rep. Act No. 9211 (2003), Sec. 4 (s).

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(2) The person is smoking in a prohibited public place.49 The law expressly prohibits smoking within the building and premises of the following public places: a. Centers of youth activity. Centers of youth activity include: - playschools, - preparatory schools, - elementary schools, - high schools, - colleges and universities, - youth hostels, - and recreational facilities for persons below eighteen (18) years old. 50 These recreational facilities include playgrounds; 51 b. Elevators; c. Stairwells; d. Locations in which fire hazards 52 are present. These locations include gas stations and storage areas for flammable liquids, gas, explosives or combustible materials; 53 e. Within the buildings and premises of: - public and private hospitals, - medical, dental and optical clinics, - health centers, - nursing homes, - dispensaries and - laboratories.

49 Rep. Act No. 9211 (2003), Sec. 4(n). 50 Rep. Act No. 9211 (2003), Sec. 5(a). 51 Memorandum Circular No. 1 (2004) or RA 9211 Implementing Rules and Regulations [hereinafter referred to as IRR of RA 9211 (2004)], Title II, Rule I, Sec. 1. 52 A fire hazard is any condition or act which increases or may cause an increase in the probability of the occurrence of fire, or which may obstruct, delay, hinder or interfere with fire fighting operations and the safeguarding of life and property (Pres. Decree No. 1185 (1977), Sec. 3). 53 Rep. Act No. 9211 (2003), Sec. 5(d).

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f. Public conveyances. Public conveyances are modes of transportation that service the general population. Examples of public conveyances are elevators, airplanes, buses, taxicabs, ships, jeepneys, light rail transits, tricycles, and similar vehicles. The absolute prohibition does not apply to inter-island vessels, IF these vessels have designated smoking areas that conform to the requirements of RA 9211 and its IRR,54 however, the prohibition does not apply if smoking is done in separate smoking areas ;55 g. Public facilities. Some examples of public facilities are airport and ship terminals, train and bus stations, restaurants and conference halls. However, smoking in these areas is allowed if done in separate smoking areas ;56 AND h. Food preparation areas. Food preparation areas include areas where food or beverage is actually being manufactured or prepared.57 For example, kitchens of restaurants are considered a food preparation area where smoking is absolutely prohibited. 58 1.3 How do you prove the violation? Each element of the violation should be proven. Therefore, the following must be gathered in order to prove them: (1) First, the act of smoking can be proven by the testimony of a witness/ es OR a photograph or video of the violator smoking; AND (2) Second, it must be clearly shown that the smoking was done in a place prohibited by law. This can be proven again by testimony of a witness/es, a photograph OR a video placing the violator in the prohibited area while smoking.

54 Rep. Act No. 9211 (2003), Sec. 4 (m). 55 IRR of RA 9211 (2004). 56 Rep. Act No. 9211 (2003), Sec. 5(e). 57 Rep. Act No. 9211 (2003), Sec. 5 (e). 58 IRR RA 9211 (2004), Title II, Rule I, Sec. 1.6. 59 Notably, in Davao, bars are likewise considered as absolutely smoke-free places.

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1.4. What is the penalty for the offense? The following penalties are meted out to a person who smokes in the smoke-free areas, and to smoke-free establishments who allow people to smoke in their establishments: First offense: 60 Fine: P500-1,000 Second offense: 61 Fine: P1,000-5,000 Third offense: 62 Fine: P5,000-10,000, AND 1.5. What are examples of local ordinances that penalize smoking in absolutely smoke-free places? 1.5.1. Quezon City 1.5.1.1. What is the applicable ordinance in Quezon City for the prohibition on smoking in public places? A. City Ordinance No. SP-1515, S-2005. An ordinance regulating smoking in public places, including public conveyances and providing penalties thereof in accordance with the Implementing Rules and Regulations of the Tobacco Regulatory Act of 2003, amending for the purpose, Ordinance No. NC-73, S-89. B. City Ordinance No. SP-1420, S-2004. An ordinance modifying Ordinance No. NC-73, S-89, as amended, entitled Banning Smoking in Public Places in Quezon City and Imposing Penalty for VIOLATION Thereof and expanding the coverage thereon in order to implement the intent and spirit contemplated in RA 9211, otherwise known as the Tobacco Regulation Act of 2003.

60 Rep. Act No. 9211 (2003), Sec.32 (a), 1st par. 61 Rep. Act No. 9211 (2003), Sec.32 (a), 2nd par. 62 Rep. Act No. 9211 (2003), Sec.32 (a), 3rd par.

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1.5.1.2. What are the public places in Quezon City where smoking is absolutely prohibited? Smoking is absolutely prohibited in the following public places in Quezon City: 1. Centers of youth activity. These include playschools, preparatory schools, elementary schools, high schools, colleges and universities, youth hostels, and recreational facilities for person under eighteen (18) years old. Such recreational facilities for persons under eighteen (18) years old include playgrounds. 2. Elevators and stairwells 3. Locations in which fire hazards are present. These include gas stations and storage areas for flammable liquids, gas, explosive or combustible materials. 4. Within the buildings and premises of public and private hospitals, medical, dental and optical clinics, health centers, nursing homes, dispensaries and laboratories 5. Public conveyances and public facilities. These include airport and ship terminals and train and bus stations, restaurants and conference halls, except for separate smoking areas. 6. Food preparation areas. Food preparation areas include areas where food or beverage are actually being manufactured or prepared. Notably, this enumeration is similar to that in RA 9211. 63 1.5.1.3. What are the penalties for the offense? The following penalties are meted out to a person who smokes in the smoke-free areas.

63 The old ordinance (Ordinance No. NC-73, S-89) was amended by Ordinance No. SP-1515, S-2005 to comply with the requirements of RA 9211.

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First offense: Fine: P500-1,000 Second offense: Fine: P1,000-3,000 Third offense: Fine: P3,000-5,000, AND Cancellation and revocation of business permits and licenses 1.5.1.4. How is the Quezon City Ordinance different from RA 9211? Aside from the penalties, the ordinance is similar to that of RA 9211. 1.5.2. Makati City and Mandaluyong City Both Makati City and Mandaluyong City have exactly the same rules on smoke-free public places. Therefore, they will be discussed under one section. 1.5.2.1. What are the applicable ordinances in Makati City and Mandaluyong City for the prohibition on smoking in public places?? A. Makati City Ordinance No. 2002-090. An ordinance revising all existing anti-smoking ordinances in Makati City and expanding the coverage thereof, providing penalty for violation thereof. B. Rules and Regulations Implementing Makati City Ordinance No. 2002090. C. Mandaluyong Ordinance No. 347, S-2005. An ordinance banning smoking in the City of Mandaluyong and providing penalty for violation thereof. 1.5.2.2. What are the places in Makati City and Mandaluyong City where smoking is absolutely prohibited? Smoking is absolutely prohibited in the following places in Makati and Mandaluyong: (Absolutely smoke-free areas)

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1. All government/public buildings; 2. Schools in all levels; 3. Hospitals/medical clinics; 4. All enclosed public places with an area of less than 100 square meters. An enclosed public space refers to a building or any other enclosed structure, whether government or privately owned, that is open to the public by general invitation or otherwise. It includes: (1) private work places, (2) offices, (3) schools, (4) hospitals, (5) medical clinics, (6) department stores, (7) malls, (8) markets, (9) supermarkets, (10) restaurants, (11) bars, (12) nightclubs, (13) lounges, (14) comfort rooms, (15) auditoriums, (16) private clubhouses, (17) session halls, (18) bus or airport terminals, (19) elevators, (20) hotels, (21) coliseum, (22) libraries, (23) courtrooms, (24) grocery stores, (25) ship terminals (26) and other similar places where smoking may expose a person other than the smoker to tobacco smoke. The imposition of an entry fee, use charge, membership requirement or other condition of entry to an enclosed area will not prevent its constitution as a public place, as long as admission is granted on a uniform basis to persons who meet the established criteria for use or

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admission. These enclosed public places are also required to post NO SMOKING signs in conspicuous areas within their premises; AND 5. Public conveyances plying in Makati City. A public conveyance is a mode of transport which services the general population, such as, but not limited to, elevators, jeepneys, buses, light railway transit, trains, airplanes, ships, taxicabs, tricycles, and other similar vehicles. Drivers of public conveyances are also required to post a sign in their vehicle, stating that smoking therein will be penalized. These conveyances are likewise required to post a NO SMOKING sign in their vehicle. 1.5.2.3. What are the penalties for violating the Makati/Mandaluyong ordinances? First offense: Fine: P1,000 Second offense: Fine: P2,000 Third offense: Fine: P3,000, OR Imprisonment: 3-6 days, OR Both 1.5.2.4. How are the Makati and Mandaluyong ordinances different from RA 9211? With regard to government buildings, RA 9211 does not consider them as absolutely smoke-free places and allows designated smoking areas to be set up in these buildings. The local ordinances also consider as absolutely smoke-free all enclosed public places with an area of less than 100 square meters, Its scope is therefore wider than that of RA 9211. 1.5.3. Manila City 1.5.3.1. What is the applicable ordinance in Manila City for the prohibition on smoking in public places?

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A. Ordinance No. 7748 (Approved August 29, 1991). An ordinance amending Ordinance No. 6842 relative to the prohibiting on smoking in specified places and for other purposes. 1.5.3.2. What are the public places in Manila City where smoking is prohibited? Smoking in the following places is allowed only in their respective smoking sections: 1. bars, 2. restaurants, 3. cocktail lounges, and other enclosed public eating places, 4. dancehalls, 5. nightclubs, 6. restaurants other public places offering facilities for dining and dancing, 7. public theaters 8. motion picture houses or other auditoria used for such purposes during showing or intermission therein or in any projection booth or enclosure or room in a public place in which any motion picture machine is being operated. On the other hand, smoking is absolutely prohibited in the following places: 1. places for storage or carriers of inflammable liquids, explosive and combustible materials, public or private gasoline stations, cargo trucks, tank vehicles, or vessels carrying inflammable liquids, explosives or combustible materials; 2. factories and plants, inside elevators of any establishment, passenger buses or any other public conveyances operating in or through the City of Manila; 3. inside bazaars, department stores, markets, supermarkets, furniture shops, pet shops, barber shops, beauty parlors, books and magazine shops, textile, grocery stores, warehouses, bodegas, storerooms, stockrooms and other similar establishments and structures; 4. inside classrooms and within the premises of all schools in all levels, public and private; provided, that for all collegiate and higher levels, this prohibition shall apply only to classrooms and all other enclosed rooms within the premises; 5. inside all public and private hospitals, medical, dental and optical clinics, centers and dispensaries; 6. inside all enclosed public places wherein more than two persons congregate, such as session halls, auditoriums, and offices.

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However, there are parts of the ordinance which are amended by RA 9211. First, the exception above with regard to classrooms will no longer apply. RA 9211 prohibits smoking in all colleges and universities, and does not provide for an exception. Secondly, the provision in the ordinance which states that the prohibition on smoking does not apply if the place complies sufficient ventilation and exhaust fans as certified by the Manila Fire Department and the Engineering Department is deemed modified. This cannot be applied to: 1. Public theaters or motion picture houses or other auditorium used for such purposes during showing or intermission or any projection booth or enclosure or room in a public place in which any motion picture is being operated. Excepted from the prohibition are lobbies, comfort rooms, smoking sections outside the screening room or hall. 2. Places for storage or carriers of inflammable liquids, explosive and combustible materials, public or private gasoline stations, cargo trucks, tank vehicles, or vessels carrying inflammable liquids, explosives or combustible materials. 3. Inside elevators of any establishment regardless of capacity. 4. Passenger buses, jeepneys, or any other public conveyances operating in or through Manila. 5. Inside all hospitals, medical dental and optical clinics, centers and dispensaries; The owner, operator, manager or administrator of the establishments and conveyances where smoking is prohibited are also required to post in conspicuous places the following sign: NO SMOKING pursuant to City Ordinance of Manila. 1.5.3.3. What is the penalty for violating the Manila City ordinance? Those who can be held liable for allowing smoking in places/conveyances declared to be absolutely smoke-free are the following: 1. owner of the conveyance or establishment 2. operator of the conveyance or establishment, 3. driver of the conveyance, 4. manager or administrator of the establishment; An individual who smokes in places declared to be smoke-free is likewise held liable.

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1.5.3.4. How is the Manila City ordinance different from RA 9211? As aforementioned, there are parts of the ordinance which are amended by RA 9211. First, the exception above with regard to classrooms will no longer apply. RA 9211 prohibits smoking in all colleges and universities, and does not provide for an exception. Secondly, the provision in the ordinance which states that the prohibition on smoking does not apply if the place complies sufficient ventilation and exhaust fans as certified by the Manila Fire Department and the Engineering Department is deemed modified. This cannot be applied to: 1. Public theaters or motion picture houses or other auditorium used for such purposes during showing or intermission or any projection booth or enclosure or room in a public place in which any motion picture is being operated. Excepted from the prohibition are lobbies, comfort rooms, smoking sections outside the screening room or hall. 2. Places for storage or carriers of inflammable liquids, explosive and combustible materials, public or private gasoline stations, cargo trucks, tank vehicles, or vessels carrying inflammable liquids, explosives or combustible materials. 3. Inside elevators of any establishment regardless of capacity. 4. Passenger buses, jeepneys, or any other public conveyances operating in or through Manila. 5. Inside all hospitals, medical dental and optical clinics, centers and dispensaries; 1.5.4. Pasig City 1.5.4.1. What is the applicable ordinance in Pasig City for the prohibition on smoking in public places? A. City Ordinance No. 65, S-1996. An ordinance banning smoking in public places and regulating smoking in designated areas in Pasig City and providing penalties for its violation. 1.5.4.2. What are the public places in Pasig City where smoking is absolutely prohibited? Smoking is totally prohibited in the following public places: 1. Within the premises of preparatory, elementary and secondary schools;

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2. Inside elevators; 3. All government offices, whether national or local, including government owned corporations, commissions, boards and similar government agencies; 4. Warehouses, bodegas, storerooms and stockrooms; 5. Places for storages or carriers of inflammable liquids of gas, explosive and combustible materials, public or private gasoline stations, cargo trucks, tank vehicles or vessels carrying inflammable liquids, gas, explosives or combustible materials; 6. Within the buildings of public and private hospitals, medical, dental and optical clinics, health centers, dispensaries and laboratories; 7. Movie houses and auditoriums; 8. Passenger buses (PUBs) air conditioned or not, jeepneys (PUJ) and (AC), or any other public conveyance operating in or through Pasig City motorized tricycles and pedicabs and taxicabs; AND 9. Public comfort rooms The owner, proprietor, administrator, operator or manager, as the case may be, of the covered public places are required to provide and post in conspicuous and proper places therein the legible NO SMOKING sign or SMOKING AREA sign. 1.5.4.3. What are the penalties for violating the Pasig City ordinance? The following penalties are meted either to individual violators, or establishments that fail to put up the required signage: First offense: Fine: P100 Second offense: Fine: P300 Third offense: P500 The ordinance provides for more specific penalties for establishments which fail to provide and post the prescribed signs. First offense: Fine: P2,000

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Second offense: Fine: P5,000 Third offense: Revocation of the business permit of the establishment, AND Community service : 8 hours. 1.5.4.4. How is the Pasig Ordinance different from RA 9211? The local ordinance does not include food preparation areas and stairwells in the list of absolutely smoke-free places. Moreover, smoking is disallowed in schools only until the secondary level (high school) and does not include universities. However, the local ordinance adds the following places as absolutely smoke-free: government offices, warehouses, bodegas, storerooms and stockrooms, movie houses and auditoriums, public conveyances, and public comfort rooms.

2. VIOLATION OF RULES ON DESIGNATED SMOKING AND NON-SMOKING AREAS

2.1. What does the law provide? Designated smoking areas may be established in places that are open to the general public, private workplaces, and other places where smoking may expose a person other than the smoker to tobacco smoke. These places do not include those which have been declared as absolutely smoke-free places (see Sec. 1 of Part II of this Manual). This obligation of establishing a smoking area is imposed upon the owner, proprietor, possessor, manager or administrator of such places. Such areas may include a designated smoking area within the building, which may be in an open space or separate area with proper ventilation, but shall not be located within the same room that has been designated as a nonsmoking area. All designated smoking areas should have at least one (1) legible and visible SMOKING AREA sign posted. In addition, the sign posted should include a warning about the health effects of direct or secondhand exposure to tobacco

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smoke. Non-smoking areas should also have at least one (1) legible and visible sign, namely: NO SMOKING AREA or NO SMOKING. 64 2.2. What are the elements of the offense? The following are the elements of the offense: (1) The place is covered by the rule. The places covered by the rule are the following: a. Enclosed places open to the general public. An enclosed area refers to an area that is physically separated from adjacent areas by walls or partitions and a roof or ceiling. The walls or partitions must be continuous, interrupted only by doors and windows. A structure with a roof or ceiling but without walls is not an enclosed area ; 65 b. Public and private workplaces; c. Other places where smoking is not absolutely prohibited (see Sec. 1, Part II of this manual), where smoking may expose a person other than the smoker to tobacco smoke. (2) The owner, proprietor, possessor, manager or administrator of the place fails to do any of the following: a. DESIGNATE smoking and non-smoking areas; A smoking area may be designated within the building, in an open space or a separate area with proper ventilation, but shall NOT be located within the same room that has been designated as a non-smoking area. 66 b. OBSERVE STANDARDS for designated smoking areas; A designated smoking area other than in an open space shall be completely enclosed or physically separated from the rest of the premises and equipped with adequate ventilation in conformity with the National Building Code (NBC) and the Philippine Society of Mechanical Engineers Code (PSMEC). The separation may be accomplished either by:
64 Rep. Act No. 9211 (2003), Sec. 6. 65 IRR of RA 9211 (2004), Rule 3, Subsection 1.8. 66 IRR of RA 9211 (2004), Title II, Rule I, Sec. 3.

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floor-to-ceiling or floor-to-floor solid partitions interrupted only by doors with door closers and which must be constantly closed except when a person is entering or exiting the area; OR by other means which enable compliance with the air quality standards set forth in the NBC and the PSMEC. 67 c. POST SIGNAGE in the designated smoking and non-smoking areas; A designated smoking area must have at least 1 legible and visible SMOKING AREA sign. A designated non-smoking area must have at least 1 legible and visible NO SMOKING AREA or NO SMOKING sign. The sign may be in English or Filipino. The SMOKING AREA sign shall be placed conspicuously at the entrance to the designated smoking area and shall NOT include any mark, device word, or image associated with any tobacco company or product. The specifications for the signs are the following: Over-all size of sign: 297x210 mm (11.69 x 8.27 in) Font and size forSMOKING AREAorNO SMOKING AREA: Arial Black, 122p. Font and size for GOVERNMENT WARNING: Arial Black, 48 pt.

GOVERNMENT WARNING
Font and size for Tobacco Regulation Act: Arial Black, 32 pt.

Tobacco Regulation Act

67 See the table of the ventilation requirements as found in Schedule A of the IRR of RA 9211 (2004) and IRR of RA 9211 (2004), Title II, Rule I, Sec. 4.

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d. INCLUDE A WARNING in the SMOKING AREA sign about the health effects of direct or secondhand exposure to tobacco smoke. The health warning may be in English or Filipino. It may be any of the following 4 variants: GOVERNMENT WARNING: Cigarette Smoking is Dangerous to Your Health (BABALA: Ang Paninigarilyo ay Mapanganib sa Iyong Kalusugan) GOVERNMENT WARNING: Cigarettes are Addictive (BABALA: Ang Sigarilyo ay Nakaka-adik) GOVERNMENT WARNING: Tobacco Smoke can Harm Your Children (BABALA: Ang usok ng Sigarilyo ay Mapanganib sa mga bata) GOVERNMENT WARNING: Smoking Kills (BABALA: Nakamamatay ang Paninigarilyo)

68 IRR of RA 9211 (2004), Title II, Rule I, Sec. 5; Schedule B. 69 IRR of RA 9211 (2004), Title II, Rule I, Sec. 5. 70 IRR of RA 9211 (2004), Title 4, Sec. 1.

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2.3. How do you prove the offense? The offense is committed by omissionby non-compliance with the requirements of designating separate smoking and non-smoking areas, and of posting signs, with health warnings in the case of SMOKING AREA signs. Proof of the omission or that the place is covered by the rule may be shown by the following: 1. Testimony of witness/es that the area does not comply with the requirements; AND 2. Photographs of the non-compliant area or establishment. 2.4. What are the penalties for not complying with the rules on designated smoking and non-smoking areas? The following penalties are meted out to establishments for failure to comply with the rules on designated smoking and non-smoking areas: First offense: Fine: P500-1,000 Second offense: Fine: P1,000-5,000 Third offense: Fine: P5,000-10,000, AND Cancellation and revocation of business permits and licenses 71 The owner, proprietor, possessor, manager or administrator of the noncompliant place may be held liable. 2.5. What are examples of local ordinances that require the establishment of designated smoking and non-smoking areas? 2.5.1. Quezon City 2.5.1.1. What ordinance in Quezon City requires the establishment of designated smoking and non-smoking areas?

71 Rep. Act No. 9211 (2003), Sec. 32 (a).

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A. Quezon City Ordinance No. SP-1515, S-2005. An Ordinance regulating smoking in public places, including public conveyances and providing penalties therefore in accordance with the implementing rules and regulations of the Tobacco Regulation Act of 2003, amending for the purpose, Ordinance No. NC-73, S-89. 2.5.1.2. What places should have designated smoking and non-smoking areas? The local ordinance requires the owners, proprietors, operators, possessors, managers or administrators of the following places to establish smoking and non-smoking areas: 1. All enclosed places that are open to the general public 2. Public and private workplaces 3. Places not declared absolutely smoke-free The designated smoking area may be within the building, which may be an open space, or a separate area with proper ventilation. However, it shall not be located within the same room that has been designated as a non-smoking area. 2.5.1.3. What acts are penalized by the ordinance? The following acts are penalized in Quezon City: 1. Failure to set up a designated smoking area; 2. Failure to comply with the standards for designated smoking areas; 3. Failure to post signage for designated smoking and non-smoking areas; 4. Inclusion of any mark, device, work or image associated with any tobacco company or product in the required No Smoking signs; and 5. Failure to post Non-Smoking Area or No Smoking in non-smoking areas. The law does not penalize the smoking by individuals in non-smoking areas, where there are designated smoking areas. The ordinance is geared towards the compliance by business establishments of the requirements for the establishment of smoking and non-smoking areas. 2.5.1.4. What are the standards for designated smoking areas? 1. The designated smoking area other than in an open space shall be (a)

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completely enclosed or physically separated from the rest of the premises, and (b) equipped with adequate ventilation in conformity with PD 1096 and the Philippine Society of Mechanical Engineers Code. 72 2. Separation of the designated smoking area other than in open space shall be effected through ANY of the following means: a. The designated smoking area must be fully separated from smokefree area by continuous floor-to-ceiling or floor-to-floor solid partitions which are interrupted only by doors equipped with door closers, and which must be kept constantly closed except when a person is entering or exiting the area. b. The designated smoking area must be set apart, enclosed or confined by means other than that indicated above. Provide it complies with the following standards: i. The temperature and humidity of the air to be used for comfort cooling shall be maintained at 20-30 C effective temperature at an air movement of 4,570 to 7,620 mm/min with the living zone and 55 to 60% relative humidity. ii. The air quality in such occupied spaces shall at all times be free from toxic, unhealthful, or disagreeable gases and fumes and shall be relatively free from odors and dust. iii. The air in such occupied spaces shall at all times be in constant motion sufficient to maintain a reasonable uniformity of temperature and humidity but shall not cause objectionable drafts in any occupied portion. The air motion in such occupied spaces and in which the only source of contamination is the occupant, shall have a velocity of not more than 15. 24 meter per minute as the air enters the living zone or 1,839 mm above the floor. iv. The air in all rooms and enclosed spaces shall be distributed with reasonable uniformity, and the variation in carbon dioxide content of the air shall be taken as a measure of such distribution. The carbon dioxide concentration when measures 910 mm above the floor shall not exceed 100 parts per million (ppm). v. The quality of air used to ventilate the space during the occupancy shall always be sufficient to maintain the standards of air temperature, air quality, air motion and air distribution.
72 See Annex of IRR of RA 9211 (2004).

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Ventilation should conform to the Outdoor Air Requirement as provided in the Ordinance. 2.5.1.5. Are designated smoking and non-smoking areas required to have a signage? Yes. All designated smoking and non-smoking areas should have at least 1 sign saying SMOKING AREA in Tagalog or English. It should be placed at the entrance of the designated smoking area. It must conform to the following specifications: 1. Overall size of sign 297 x 210 mm (11.69 x 8.27 in) 2. Font and Size for No Smoking Area or Smoking Area Arial Black, 122pt. 3. Font and size for Government Warning: Arial Black, 48 pt.

GOVERNMENT WARNING
4. Font and Size for Tobacco Regulation Act: Arial Black, 32 pt.

Tobacco Regulation Act

The sign should also include any of the following health messages: 1. GOVERNMENT WARNING: Cigarette Smoking is Dangerous to Your Health (BABALA: Ang Paninigarilyo ay Mapanganib sa Iyong Kalusugan) 2. GOVERNMENT WARNING: Cigarettes are Addictive (BABALA: Ang Sigarilyo ay Nakaka-adik) 3. GOVERNMENT WARNING: Tobacco Smoke can Harm Your Children (BABALA: Ang usok ng Sigarilyo ay Mapanganib sa mga bata) 4. GOVERNMENT WARNING: Smoking Kills (BABALA: Nakamamatay ang Paninigarilyo) These requirements are similar to that provided by the IRR of RA 9211.

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2.6.1.6. What is the penalty for a violation of the ordinance? The following penalties are imposed on the owners, proprietors, operators, possessors, managers or administrators of the non-compliant places: First offense: Fine: P500-1,000 Second offense: Fine: 1,000-P3,000 Third offense: Fine: P3,000-5,000, AND Cancellation or revocation of business permits and licenses to operate. 2.6.1.6. Is the Quezon City ordinance different from RA 9211? No. Except for the penalties imposed, the ordinance otherwise adopts the standards of RA 9211. 2.6.2. Makati City and Mandaluyong City

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2.6.2.1. What are the ordinances in Makati and Mandaluyong that provide for designated smoking and non-smoking areas? A. Makati City Ordinance No. 2002-090. An ordinance revising all existing anti-smoking ordinances in Makati City and Expanding the coverage thereof, providing penalty for violation thereof. B. Rules and Regulations Implementing Makati City Ordinance No. 2002-090. C. Mandaluyong Ordinance No. 347, S-2005. An ordinance banning smoking in the City of Mandaluyong and providing penalty for violation thereof. 2.6.2.2. What is a designated smoking area? A designated smoking area complies with the following elements: 1. It is an indoor area; 2. Smoking is allowed in this area; 3. It is physically separated from the declared smoke-free area: a. The separation is made by continuous floor-to-ceiling walls. b. The walls must be interrupted only by doors. c. The doors must be constantly closed except during ingress or egress 4. It is equipped with effective and strong ventilation: a. This means that with the equipment, smoke emanating from the designated smoking area does not drift, permeate or re-circulate into any smoke free area. 2.6.2.3. What places are required to have designated smoking and nonsmoking areas? A person owning or having possession of a public place which is not declared as absolutely smoke-free may designate separate smoking areas. If there is no designated smoking area, the public place will be considered as a totally nonsmoking area. The following are declared as absolutely smoke-free areas: 1. All government or public buildings 2. Schools in all levels 3. Hospitals and medical clinics 4. All enclosed public places with an area of less than 100 square meters.

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2.6.2.4. What acts are penalized by the ordinance? 1. Smoking in public conveyances plying in Makati and Mandaluyong City; 2. Failure of driver of public conveyance to post the required sign inside their vehicle, indicating that smoking is prohibited inside public vehicles. 3. Toleration of smoking despite the fact that the area has been classified as smoke-free by the City Health Department; 4. Non-provision of no-smoking signs in enclosed public places; 5. Operation of a designated smoking area without prior approval or clearance from the City Engineering and City Health Departments; 6. Provision of ashtrays within the establishment; and 7. Operation of defective/inadequate facilities and equipment in designated smoking areas. 2.6.2.5. What are the requirements for the establishment of designated smoking areas? The owners of enclosed public places not otherwise declared as totally nonsmoking areas are required to apply for the approval and certification of operations with the City Health Department, and pay the following fees: 1. Filing fee of P5,000.00 to be paid upon filing of the application 2. Inspection fee of P200 to be paid prior to inspection 3. Processing fee of P5,000 to be paid upon the approval of the application and release of pertinent documents, such as the Certificate of Approval, and duly approved architectural design of the designated smoking area The establishment owners are also required to submit the following documents so that their applications can be processed: 1. Five (5) sets of the floor plan of the entire establishment showing the actual location of its non-smoking area and the proposed location of its smoking area, as well as the respective sizes of these areas 2. Business Permit 3. Certificate of Occupancy

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2.6.2.6. What are the standards for designated smoking areas? The designated smoking areas should meet the following architectural or engineering specifications in order to gain approval from the City Engineering Department or City Building Official: 1. Physical partitions shall be fixed and solidly built double-walled floor to ceiling or floor-to-floor partitions of at least one (1) hour fire-resistive rating. 2. Materials for partitions such as bamboo, nipa, logs or lumber shall not be permitted. Native materials such as those mentioned are only allowed for decorative purposes. 2.6.2.7. What is the floor area requirement for smoking and non-smoking areas? The maximum size of a designated smoking area for respective establishments shall conform to the following smoking/non-smoking area ratio: 1. Restaurants, cafeterias, and other dining establishments 15% of the total dining area, including function rooms 2. Day and night clubs, bars, cocktail lounges, beer gardens, karaoke bars and similar establishments 25% of the total dining or drinking area, including function rooms 3. Disco pads, dance halls, and similar establishments 25% of the dancing and drinking area 4. Billiard halls, pool rooms, and similar establishments 25% of the pool or billiard area 5. Bowling alleys 15% of the bowling area Other enclosed public places not mentioned above are required to conform to a maximum of 5% of total floor area per floor level designated smoking area. 2.6.2.8. What are the ventilation requirements for smoking areas? The City Engineering Department/City Building Official requires designated smoking areas to conform to the following requirements: 1. It must be equipped with effective and strong ventilation so that smoke emanating from them does not drift, permeate or re-circulate into any smoke-free area. 2. The quality of air used to ventilate that area during occupancy must always be sufficient to maintain the standards of air temperature, air quality and air distribution.

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2.6.2.9. What are the ventilation and exhaust equipment standards for smoking areas? Designated smoking areas must be equipped with exhaust systems and ventilation equipment that conform to the provisions of the National Building Code and the Philippine Society of Mechanical Engineering (PSME) Code. These are: 1. A complete exhaust system should include an air device, hood, ducts, fans, objectors, separator receptacles, and all other parts necessary for its installation. 2. All exhaust systems should discharge to the outside atmosphere provided, however, that air may be re-circulated, and is passed through a suitable cleaning device and is safe and wholesome. 3. The point of discharge of an exhaust system should be so located so that the discharge materials will not re-enter non-smoking areas, nor create hazard to the public, nor cause any general nuisance. 4. Air circulated in designated smoking areas shall be supplied through air inlets arranged, located, and equipped so that persons occupying the said areas are not subjected to air velocities, as specified in the PSME Code. 5. The discharge from any exhaust system of a designated smoking area shall be such that no air contaminants will enter any window, door, air duct system, or other openings at designated smoke-free areas, in quantities sufficient to create health hazards therein or nuisance to surrounding areas. 6. Air ducts and piping should be located as to be accessible for inspection and maintenance. 7. Collected materials should be collected and disposed of at intervals frequent enough to ensure that the exhaust system meets the requirements. 2.6.2.10. What are the penalties for violating the ordinance? The following penalties are meted out to the non-compliant establishment: First offense: Fine: P1,000 Second offense: Fine: P2,000

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Third offense: Fine: P3,000, OR Imprisonment: 3-6 days, OR Both The City Government may order the closure of a public place for any of the following grounds: 1. Management tolerates smoking despite being classified as a smoke-free establishment by the City Health Department 2. Non-provision of no smoking signages 3. Operation of designated smoking areas without clearance from the City Engineering Office and the city 4. Provision of ashtrays within smoke-free areas 5. Operation of inadequate/defective facilities in designated smoking areas 2.6.2.11. How is the Makati City Ordinance No. 2002-090 different from RA 9211? Makati City Ordinance No. 2002-090 defines its policy in strong terms. It seeks to promote the health and welfare of its citizens, specifying that the City wants to ensure the physical well-being of smokers and non-smokers alike by discouraging cigarette smoking and tobacco use. 73 Thus, unlike RA 9211, the ordinance explicitly declared as a policy the discouragement of the use of tobacco. It goes further by stating facts concerning the health risks of tobacco use and exposure, noting the lack of awareness among smokers as to the extremely poisonous substances that are found in cigarette smoke.74 It recognizes cigarette and tobacco smoke-free environment as a public right which will be ensured by a ban on smoking in public conveyances and places.75 The ordinance likewise has a more expansive coverage with regard to absolutely smoke-free areas, to name: all government/public buildings, and all enclosed public places with an area of less than 100 square meters. 2.6.3. Manila City 2.6.3.1. What ordinance/order in Manila disallows establishments from allowing minors to stay at designated smoking areas?

73 Makati City Ordinance No. 2002-090, Preamble, clause 1. 74 Makati City Ordinance No. 2002-090, Preamble, clause 2-3. 75 Makati City Ordinance No. 2002-090, Preamble, clause 4.

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A. Manila Ordinance No. 7952 (1998). An Ordinance prohibiting any person, owner, operator, administrator, manager, or person in charge of operation of restaurants, eateries and other similar establishments to allow children below eighteen (18) years old to stay, loiter or be seated at designated smoking areas within subject establishments, providing penalties for violation thereof and for other purposes. B. Executive Order No. 36, Series of 2007. An order creating and constituting a task force for the strict implementation of RA 9211, otherwise known as the Tobacco Regulation Act of 2003. 2.6.3.2. What acts are punished under the ordinance? The following acts are prohibited in the City of Manila: 1. Allowing children below 18 years of age to loiter, stay or be seated at designated smoking areas of restaurants, eateries and other similar establishments. This prohibition applies to any person, owner, operator, administrator, manager or person-in-charge of operation of restaurants, eateries and similar establishments who allow such minor in the designated smoking area; AND 2. Failure to display within a restaurant, eatery or other similar establishment the following sign in bold letters: Pursuant to Ordinance No. 7952, children below 18 years old are not allowed to loiter, stay or be seated in smoking areas. The owner, operator, administrator, manager or person-in-charge of operation of the establishment will be held accountable. 2.6.3.3. What are the penalties for the violation? The following penalties are meted out to the non-compliant establishment: First offense: Fine: P5,000, OR Imprisonment: 60 days Succeeding offenses: Cancellation or revocation of business permit of the establishment The manager, president or chairman of the board of directors or managing partner of the establishment shall suffer the penalty or penalties provided.

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2.6.4. Pasig City 2.6.4.1.What ordinance in Pasig provides for designated smoking and non-smoking areas? A. City Ordinance No. 65, S-1996. An ordinance banning smoking in public places and regulating smoking in designated areas in Pasig City and providing penalties for its violation. 2.6.4.2. What places in Pasig City are required to provide smoking areas in their buildings? The following public places, establishments and other areas are required to provide smoking areas in their buildings: (1) Bars, restaurants, cocktail lounges and canteens; (2) Dance halls, disco houses, day and night clubs, beer/pub houses, or other public; places, offering facilities for drinking and dancing; (3) Department stores, markets, supermarkets groceries and bake shops; AND (4) Factories and plants. The smoking area must be in an open space or in a separate area with proper ventilation and exhaust fans. However, if there are fire hazards, flammable liquids or gases in such public places, the creation of smoking areas is prohibited. 2.6.4.3. What is the penalty for violating the ordinance? The following penalties are meted out to establishments that fail to comply with the rules on designated smoking and non-smoking areas: First offense: Fine: P100 Second offense: Fine: P300 Third and succeeding offense: Fine: P5,000

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The owner, proprietor, possessor, manager or administrator of the noncompliant place may be held liable. Also, the owner, proprietor, administrator, operator, or manager who fails to provide and post conspicuous and proper places legible NO SMOKING sign or SMOKING AREA shall suffer the following penalties: First offense: Fine: P2, 000 Second offense: Fine: P5, 000 Third and succeeding offense: Revocation of permit and eight (8) hours community service 2.6.4.4. How is the Pasig City ordinance different from RA 9211? As regards the places where smoking is absolutely prohibited, the list in the Pasig City Ordinance is more exhaustive. Considering the policy of RA 9211 in promoting and protecting the right to health of the people, the list in the Pasig City ordinance can be retained without much controversy, such as warehouses and public conveyances. On the other hand, the Ordinances enumeration of absolutely non-smoking areas may itself be extended to cover all centers of youth activity and food preparation areas. With respect to the places wherein smoking areas may be designated, the only inconsistency between the Ordinance and RA 9211 is that concerning public conveyances. Provisions favoring the right to health must be given greater weight, so that the total prohibition on smoking in public conveyances must be sustained. However, the provisions concerning the specifications of the designated smoking area of both the Ordinance and the RA must be seen as supplementary or complementary to each other. Additional specifications provided by one or the other must be followed. Thus, smoking areas in Pasig City may be in an open space or in a separate area with proper ventilation and exhaust fans; must not be located within the same room designated to be a non-smoking area; must have no fire hazards.76 Furthermore, Pasig City must ensure that they comply with additional requirements that may be provided in greater detail in the IRR of RA 9211.

76 See Pasig City Ordinance No. 65, series of 1996, sec. 2; Rep. Act No. 9211 (2003), sec. 6

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B. MINORS

3. SALE OR DISTRIBUTION OF TOBACCO PRODUCTS VIA SELF-SERVICE FACILITY WITHOUT MECHANISM FOR AGE VERIFICATION
3.1 What does the law provide? Vending machines or any self-service facility that sells or distributes tobacco products should have a mechanism for age verification. However, if these machines and facilities are situated at point-of-sale establishments, the requirement for age verification does not apply.77 3.2 What are the elements of the violation? The following are the elements of the act penalized: (1) There is a vending machine, a self-service facility, or similar device. (2) The machine sells tobacco products. Tobacco products refer to any product that consists of loose tobacco that contains nicotine and is intended for use in a cigarette, including any product containing tobacco and intended smoking or oral or nasal use.78 As clarified in the IRR, there is no need for a sale to a minor to actually transpire, only that the self-service facility fails to comply with the requirement of having a mechanism for age verification. Sale of tobacco products to a minor is penalized under Sec. 9 of RA 9211. (3) The machine has no mechanism for age verification. An example of age verification mechanisms used in other countries is age verification cameras. Vending machines should have built-in cameras which scan the face of the buyer to verify his/her age, or any other similar mechanism to verify the age of the buyer. Note, however, that the law provides for an exception in the case of vending machines and self-service facilities found at point-of-sale establishments. These machines need not have a mechanism for age verification because retailers in point-of-sale establishments are expressly required to verify the age of buyers of cigarettes and tobacco products. Point-of-sale means any location at which an
77 Rep. Act No. 9211 (2003), Sec. 7 78 Rep. Act No. 9211 (2003), Sec. 4(s).

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individual can purchase or otherwise obtain tobacco products, excluding itinerant/ambulant vendors. 79 3.3 How do you prove the violation? The elements of the offense may be proved by the following: 1. Witness/es who saw the vending machine, etc. which did not have a mechanism for age verification, in order to prove: (a) that there is a vending machine or self-service device which sells tobacco products, and (b) that the machine has no mechanism for age verification, AND 2. Videos or photographs of the machine or facility to prove (a) that there is a vending machine or self-service device which sells tobacco products, and (b) that the machine has no mechanism for age verification. In lieu of the evidence above, the machine or facility itself may be used to prove: (a) that such a machine sells tobacco products, and (b) that it has no mechanism for age verification. 3.4. What is the penalty for the violation? The following penalties are meted out to the non-compliant tobacco company: 80 First offense Fine: At least P5,000, OR Imprisonment: maximum of 30 days Succeeding offenses Fine: At least P5,000, OR Imprisonment: maximum of 30 days, AND Revocation of business licenses or permits The owner, president, manager, or the most senior officers of the company thereof shall be liable for the offense.

79 Rep. Act No. 9211 (2003), Sec. 4(k); IRR of RA 9211 (2004), Rule 3, Sec. 1.17. 80 Rep. Act No. 9211 (2003), Sec. 32 (B).

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4. VIOLATION OF MINIMUM AGE SALES

The following are the offenses involving the smoking by minors, and the sale and purchase of tobacco products to/from minors: 81 4.1. Sale or distribution of tobacco products to minors by any retailer; 4.2. Purchase of cigarettes or any tobacco product from a minor; 4.3. Sale of cigarettes or any tobacco product by a minor; 4.4. Purchase of cigarettes or any tobacco product by a minor; and 4.5 Smoking of cigarettes or any tobacco product by a minor. Minors are those who are below eighteen (18) years of age. 82 4.1. Sale or distribution of tobacco products to minors by any retailer 4.1.1. What does the law provide? It shall be unlawful for any retailer of tobacco products to sell or distribute tobacco products to any minor. 83 4.1.2. What are the elements of the offense? The following are the elements of the offense: (1) The violator is a retailer of tobacco products. A retailer refers to any person or entity that sells tobacco products to individuals for personal consumption.84 The definition is broad enough to include not only legal entities, but also sari-sari stores and sidewalk vendors who sell cigarettes. Tobacco products refer to products that consist of loose tobacco that contains nicotine and is intended for use in a cigarette, including any product containing tobacco and intended smoking or oral or nasal use.85 (2) The retailer sold or distributed tobacco product/s. There must have been an actual sale or distribution of tobacco products. A mere offer of sale or distribution, or answer to inquiries about the tobacco products will not hold the retailer liable for this specific offense. Moreover, the
81 82 83 84 85 Rep. Act No. 9211 (2003), Sec. 9 Rep. Act No. 9211 (2003), Sec. 4 (g). Rep. Act No. 9211 (2003), Sec. 9 (a). Rep. Act No. 9211 (2003), Sec. 4 (o). Rep. Act No. 9211 (2003), Sec. 4 (s).

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giving by the retailer of tobacco products to the minor without any consideration will not subject the retailer to liability because the law speaks of sale or distribution. A sale refers to the transfer of ownership of property from one person to another in return for money. On the other hand, the meaning of distribution may be gleaned from the definition given in the IRR of a distributor, to wit: A distributor refers to any person to whom a tobacco product is delivered or sold for purposes of distribution in commerce, except that such term does not include a manufacturer or retailer or common carrier of such product. Applying the principle on strict construction of penal provisions, the mere giving of tobacco products without any consideration in return will not fall within the ambit of the law. Nonetheless, the person giving may still be prosecuted under Sec. 25 of RA 9211 which penalizes the giving of samples to minors. (3) The buyer was a person below 18 years of age. A minor refers to any person below eighteen (18) years old. 86 Therefore, a buyer of tobacco products who is eighteen years of age will not fall within the ambit of the law. The following will not constitute a defense for the erring retailer: 1. Lack of knowledge as to the age of the minor. Lack of knowledge of the buyers minority will not shield the retailer from liability 87 because the retailer is obliged to verify the age of the buyer by means of any valid form of photographic identification containing the date of birth of the bearer. 88 2. No reason to believe that the cigarette or any other tobacco product was for the consumption of the minor to whom it was sold. The plain act of selling cigarette/tobacco products to a minor is directly punishable. 89 4.1.3. How do you prove the offense? The following evidence should be gathered to prove the sale or distribution of tobacco products to minors:
86 87 88 89

Rep. Act No. 9211 (2003), Sec. 4 (g); IRR of RA 9211 (2004), Rule III, Sec. 1.12 Rep. Act No. 9211 (2003), Sec. 9 (c), last paragraph; IRR of RA 9211 (2004), Title III, Rule II, Sec.2. Rep. Act No. 9211 (2003), Sec. 12; IRR of RA 9211 (2004), Title III, Rule II, Sec. 4. Rep. Act No. 9211 (2003), Sec. 9 (c), last paragraph; IRR of RA 9211 (2004), Title III, Rule II, Sec.2.

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1. To prove that the retailer sells tobacco products, any of the following may be taken: a. Testimony of witness/es; OR b. Business permits, books of account, sales invoices and other business records showing that the retailer sells tobacco products 90 ; AND 2. To prove that the retailer sold or was about to sell a tobacco product to a buyer, any of the following may be taken: a. Testimony of witness/es; OR b. Receipts, monies, and the tobacco product; OR c. In-store surveillance videos, close-circuit television recordings and other videos, video captures or photographs of the actual transaction; AND 3. To prove that the buyer was a minor, the birth certificate or any proof of identification indicating the date of birth of the minor should be taken. Notably, RA 9344 relieves minors fifteen (15) years of age or under from any criminal liability. Hence, minors fifteen (15) years old or younger may freely testify without fear of incurring liability. 91 4.2. Purchase of cigarettes or any tobacco product from a minor 4.2.1. What does the law provide? It is unlawful for any person to purchase cigarettes or tobacco products from a minor. 4.2.2. What are the elements of the offense? The following are the elements constituting the offense of purchasing cigarettes or tobacco products from a minor: (1) The violator is a buyer. (2) He buys cigarettes or tobacco products from a seller. The violator must have actually bought the cigarettes or tobacco products.
90 It should be noted however that in the sale of tobacco products, the common practice is the non-issuance of receipts despite proscription under the National Internal Revenue Code or receipts without the seller-establishments name. Hence, it is advisable to just gather testimonies of witnesses. The fact that business permits, books of account and other business records could not be presented as evidence will not be detrimental to the case as testimonies of witnesses could be used to prove that the retailer is selling tobacco products. 91 Rep. Act No. 9344 (Juvenile Justice and Welfare Act of 2006), Sec. 6.

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Excluded from the ambit of this offense are mere inquiries made by an individual regarding the tobacco products for sale. Mere viewing of tobacco products is likewise beyond the contemplation of this offense. (3) The seller is a minor. 4.2.3. How do you prove the offense? The following evidence must be gathered to prove that the buyer purchased from a minor: 1. To prove that the buyer bought cigarettes or tobacco products, any of the following may be adduced: a. Testimony of witness/es; OR b. Receipts, monies and the tobacco subject of the transaction; OR c. Videos, video captures or photographs of the actual transaction to prove that the individual purchased cigarettes or tobacco products; AND 2. A birth certificate or any proof of identification indicating the date of birth of the minor to prove the minority of the seller. As with the previous offense, the testimony of the minor concerned may not be obtained as this will expose him to liability under Sec. 9(c) of RA 9211, which punishes a minor who purchases or buys cigarettes/tobacco products. 4.3. Sale of cigarettes or tobacco products by minor 4.3.1. What does the law provide? It is unlawful for a minor to sell cigarettes or any tobacco product .92 4.3.2. What are the elements of the offense? The following are the elements constituting the offense of selling cigarettes or tobacco products by a minor: (1) The violator is a seller. (2) He is a minor. (3) He sells cigarettes or tobacco products.
92 Rep. Act No. 9211 (2003), Sec. 9 (c).

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Note that there need not be a buyer in order for the minor to be liable under this offense. It is enough that the minor sells cigarettes/tobacco products to be punishable. 4.3.3. How do you prove the offense? The following evidence should be gathered in order to prove that the minor sells tobacco products: 1. Birth certificate or any proof of identification indicating the date of birth of the minor to prove the minority of the seller; AND 2. Either of the following to prove that the minor sells cigarettes or tobacco products: a. Testimony of witness/es to prove that the minor sells cigarettes or tobacco products. b. Receipts, monies and the tobacco being sold to prove that the individual sells tobacco products. c. In-store surveillance videos, close-circuit television recordings and other videos, video captures or photographs of the minor selling tobacco products. 4.4. Purchase of cigarettes or any tobacco product by a minor 4.4.1. What does the law provide? It is unlawful for a minor to buy cigarettes or any tobacco product. 93 4.4.2. What are the elements of the offense? The following elements constitute the offense of purchase of tobacco products by a minor: (1) The violator is a buyer. (2) He is a minor. (3) He buys cigarettes or tobacco products. 4.4.3. How do you prove the offense?

93 Rep. Act No. 9211 (2003), Sec. 9 (c).

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1. To prove the purchase of cigarettes, any of the following evidence may be taken: a. Testimony of witness/es; OR b. Receipts, monies and the tobacco subject of the transaction to prove that the individual actually purchased or was in the act of purchasing tobacco; OR c. In-store surveillance videos, close-circuit television recordings and other videos, video captures or photographs of the actual transaction to prove that the minor bought cigarettes or tobacco products; AND 2. Birth certificate or any proof of identification indicating the date of birth of the minor to prove the minority of the buyer. 4.5. Smoking of cigarettes or any tobacco product by a minor 4.5.1. What does the law provide? Smoking of cigarettes or any tobacco product by a minor is prohibited. 94 4.5.2. What are the elements of the offense? (1) The violator is a minor. (2) He smokes cigarettes or tobacco products. The minor is considered to be smoking cigarettes or tobacco products if he is carrying a lighted cigarette or other tobacco products, whether or not it is being inhale or smoked. 95 The mere carrying of a lighted cigarette is enough to hold the minor liable. The cigarette, however, must be lighted. 4.5.3. How do you prove the offense? The following evidence must be gathered in order to prove the elements of this offense: 1. To prove the minority of the child, a baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child; 96 AND
94 Rep. Act No. 9211 (2003), Sec. 9 (d). 95 Rep. Act No. 9211 (2003), Sec. 4 (p). 96 Rep. Act No. 9344 (2005), Sec. 7.

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2. Either of the following to prove that the minor was smoking: a. Testimony of witness/es to prove that the minor smoked cigarettes or tobacco products; OR b. Videos, video captures or photographs showing that the minor is smoking cigarettes or tobacco products; c. The cigarette, cigarette butts, or tobacco products which were being smoked by the minor. 4.6. What is the penalty for any Minimum Age Sales offense? If the minor is a violator, the following rules will apply: b. If the minor is below fifteen (15) years of age or above fifteen (15) but below eighteen (18) years old who acted without discernment he is exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of RA 9344. 97 c. If the minor is above fifteen (15) years of age but below eighteen (18) years old who acted with discernment he shall undergo diversion proceedings without undergoing court proceedings as long as the child voluntarily admits to committing the offense and his/her parent or guardian consents to the diversion. 98 However, if the minor offender violates the diversion contract, the offended party may institute legal proceedings against the minor. If the parents or guardian of the minor does not consent to the diversion or no conciliation, mediation or family conferencing was conducted, an inquest and/or preliminary investigation shall be conducted to determine whether or not the child should remain under custody and correspondingly charged in court.99 As to offenders who are NOT minors, the following penalties will apply: Fine: P5,000, OR Imprisonment: 30 days maximum Succeeding offenses Fine: P5,000, AND Imprisonment: 30 days maximum, AND Revocation of business licenses and permits in case of business establishments.
97 Rep. Act No. 9344 (2005), Sec. 6. 98 Rep. Act No. 9344 (2005), Secs. 23 & 26. 99 Rep. Act No. 9344 (2005), Sec. 28.

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These penalties apply to minors who buy and/or sell tobacco products, and to individuals and establishments who buy and/or sell tobacco products to/from minors. 4.7. What are examples of local ordinances that regulate the sale/ purchase of tobacco products to/from minors? Below are the ordinances in Quezon, Makati, Manila, and Marikina cities which apply to minors. 4.7.1. Quezon City 4.7.1.1. What is the applicable ordinance in Quezon City that regulates the sale/purchase of tobacco products to/from minors? A. Quezon City Ordinance Number. SP 1420, S-2004. An Ordinance Modifying Ordinance No. NC-73, S-89, as amended, entitled Banning Smoking in Public Places in Quezon City and Imposing Penalty for Violation Thereof and expanding the coverage thereof in order to implement the intent and spirit contemplated in Republic Act No. 9211, otherwise known as the Tobacco Regulation Act of 2003. 4.7.1.2. What acts are penalized? The following acts are declared unlawful: 1. Selling or distributing cigarettes or tobacco products to any minor. The ordinance provides that this may be committed by any retailer of cigarettes or any other tobacco products. A retailer is any person or entity that sells cigarettes and tobacco products to individuals for personal consumption. Therefore, individuals, and not only establishments are prohibited from selling tobacco products to minors. 2. Purchasing cigarettes or tobacco products from a minor. This offense may be committed by any person. The person selling or distributing cigarettes or tobacco products cannot raise the defense that s/he was not aware of the real age of the minor. Neither is it a defense that such seller did not know that the cigarette would be for the consumption of the minor to whom it was sold.

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Notably, the person purchasing tobacco products from a minor is not precluded by the ordinance from raising the defense of lack of knowledge of the age of the minor. 4.7.1.3. What is the penalty for the offense? The following penalties are meted out to the person or entity who sells to or purchases tobacco products from a minor: First offense: Fine: P500, OR Imprisonment: 5 days, OR Both Second offense: Fine: P1,000, OR Imprisonment: 10 days, OR Both Third and succeeding offenses: Fine: P2,000 Imprisonment: 10 days, OR Both If the violation is committed by a retail or sari-sari store, convenience or grocery store or any other similar business entity, the owner, proprietor, president or manager will face the penalties for individuals. Moreover, the business permit or license to operate business of such establishment will be revoked. 4.7.1.4. How is the Quezon City Ordinance different from RA 9211? In Section 9 of the local ordinance regarding minors, only two acts are enumerated as unlawful: (1) the sale by a retailer of tobacco products to a minor, and (2) the purchase by a person of tobacco products from a minor. By contrast, in addition to the two aforementioned acts, RA 9211 also penalizes: (1) the purchase by a minor of tobacco products, and (2) the smoking by a minor of tobacco products. The local ordinance, however, in Section 11 which prescribes penalties, also states that if a minor is caught selling, buying, or smoking cigarettes or any tobacco products, then the provisions of Article 189 of the Child and Youth Welfare Code (P.D. 603) will apply.

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4.7.2. Makati City 4.7.2.1. What is/are the applicable ordinance/s in Makati City on the regulation of the sale/purchase of tobacco products to/from minors? A. Makati City Ordinance No: 2001-082 (2001). An ordinance prohibiting any person from instructing, ordering, sending into an errant or co-opting any person of minor age to purchase or acquire beer, liquor and other intoxicating beverages, cigarettes and other tobacco products from retail stores, sari-sari stores, convenience stores and other similar business establishments within the City of Makati, further mandating these establishments to post a notice that selling of beer, liquor and other intoxicating beverages, cigarettes and other tobacco products to minors is prohibited by law and providing penalties for violation thereof. B. Makati City Ordinance No: 93-259 (1993). An ordinance prohibiting minors, seventeen years old and below from smoking cigarettes or using any other tobacco product within the territorial jurisdiction of Makati and providing penalties for violation thereof. 4.7.2.2. What acts are penalized? The following acts are declared unlawful in the city of Makati: 1. Selling cigarettes or tobacco products to minors. This prohibition applies to all retail stores, sari-sari stores, convenience stores and other similar establishments in Makati City. 2. Instructing, ordering, sending into an errant or co-opting a minor to purchase cigarettes or other tobacco products. This prohibition applies to any person. 3. Smoking by minors. 4.7.2.3. What are the penalties for the offense? Offense: Selling tobacco products to minors; The following penalties are meted out to the person or entity that sells tobacco products to minors:

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First offense: Fine: P500. 100 OR Community service (duration is at the discretion of the court), AND Imprisonment: 10 days maximum Second offense: Fine: P1,000, OR Community service (duration is at the discretion of the court), AND Imprisonment: 10 days maximum Third and succeeding offenses: Fine: P2,000, OR Community service (duration is at the discretion of the court), AND Imprisonment: 10 days maximum In case of a business establishment, its business license/permit may also be canceled or revoked at the discretion of the city mayor. Offense: Instructing, ordering, sending into an errant or co-opting a minor to purchase cigarettes or other tobacco products. The following penalties are meted out to the person or entity that instructs, orders, or sends a minor to purchase tobacco products: First offense: Fine: P500. 101 OR Community service (duration is at the discretion of the court) Second offense: Fine: P1,000, OR Community service (duration is at the discretion of the court) Third and succeeding offenses: Fine: P2,000, OR Community service (duration is at the discretion of the court) Offense: Smoking by a minor The following penalties are meted out to minors who smoke:
100 In lieu of the monetary fine, the penalty of community service may be imposed on any offending party. 101 In lieu of the monetary fine, the penalty of community service may be imposed on any offending party.

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First offense: Warning If the minor is a student, he is required to bring his parents or guardians to school for a reprimand or lecture. Second offense: Fine: P500 Third offense and succeeding offenses: Fine: P1,000, OR Imprisonment: 10 days, OR Both 4.7.2.4. How are the Makati ordinances different from RA 9211? The offense of selling cigarettes or tobacco products to a minor is applied only to retail stores, sari-sari stores, convenience stores and other similar business establishments. Hence, sidewalk vendors and the like are not punishable under the ordinance unlike in RA 9211 which broadly defines retailers to include these individuals. It should also be noted that what is penalized is when the minor purchases tobacco products from retail stores, sari-sari stores, convenience stores and other similar business establishments within the City of Makati. Hence, if the minor is instructed, ordered, sent into an errand, or co-opted to buy tobacco products from individuals selling on the streets or sidewalks from these individuals, the Ordinance does not apply unlike in RA 9211 which broadly defines retailers to include these individuals. The Makati ordinance punishes the person who instructs, orders, and sends into an errand or co-opts the minor to buy tobacco products unlike RA 9211 which punishes instead the minor. 4.7.3. Manila City 4.7.3.1. What is the applicable ordinance/s in Manila City on the regulation of the sale/purchase of tobacco products to/from minors? A. Manila City Ordinance No: 7824, (1993). An ordinance prohibiting the selling of cigarettes, and cigarette paraphernalia to minors and providing penalties for violation thereof.

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4.7.3.2. What acts are penalized? The following acts are declared unlawful: 1. Selling, transferring and conveying possession or ownership of cigarettes or cigarette paraphernalia to a minor. This may be committed by any person. 2. Smoking by minors. 4.7.3.3. What are the penalties for the offenses? Offense: Smoking by a minor The following penalties are meted out to the minor who smokes: First offense: Community service: 4 hours.102 Second offense: Community service: 8 hours. Third and subsequent offense: Fine: P500, OR Community service: 16 hours, OR Both Offense: Selling, transferring and conveying possession or ownership of cigarettes or cigarette paraphernalia103 to a minor The following penalties are meted out to the person or entity who sells cigarettes or cigarette paraphernalia to a minor: First offense: Fine: P200 Second offense: Fine: P500
102 The minor will render community service to the City Government under the supervision of the Youth Development and Welfare Bureau. 103 Cigarette and cigarette paraphernalia have been defined in Section 1 of Manila City Ordinance No. 7842 as cigar or cigarette, whether imported or manufactured locally, including tobacco and such other leaves whether imported or grown locally, and the rolling paper by which these leaves may be used for smoking.

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Third offense and succeeding offenses: P1,000, OR Imprisonment: 6 months, OR Both 4.7.3.4. How are the Manila ordinances different from RA 9211? The act of transferring possession or ownership of a cigarette or cigarette paraphernalia to a minor, whether he bought it for a consideration or not, is punishable under the ordinance unlike RA 9211 where it is only punishable when the minor actually purchases the tobacco product unless the act would fall under Section 25 of RA 9211 (giving of samples to minors). On the other hand, a seller under the Manila Ordinance is defined as any person who offers to customers the transfer of possession/ownership of cigarettes and cigarette paraphernalia in exchange of money or kind.104 Hence, the mere act of offering to a minor will constitute a violation of the Ordinance and penalty will attach against the person who offered unlike in RA 9211 whereby the seller must have actually sold tobacco products to minors to be liable. 4.7.4.Marikina City 4.7.4.1. What is/are the applicable ordinance/s in Manila City on the regulation of the sale/purchase of tobacco products to/from minors? A. Marikina City Ordinance No. 200, (2001). An ordinance prohibiting the selling of cigarettes, other tobacco products and cigarettes paraphernalia to minors within the City of Marikina and providing penalties for violation thereof. B. Marikina City Ordinance No. 201, (2001). An ordinance prohibiting minors from smoking cigarettes and other tobacco products within the City of Marikina and providing penalties thereof 4.7.4.2. What acts are punished? The following acts are prohibited in the City of Marikina: 1. Selling but also transferring and conveying possession or ownership of cigarettes or cigarette paraphernalia to minors. This prohibition applies to any natural or juridical person.
104 Manila City Ordinance 7842, Sec. 1 (b).

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2. Smoking by minors. 4.7.4.3. What are the penalties for the offenses? Offense: Selling, transferring and conveying possession or ownership of cigarettes or cigarette paraphernalia to a minor The following penalties are meted out to the person or entity that sells cigarettes or cigarette paraphernalia to a minor: First offense: Fine: P500. OR Community service Second offense: Fine: 1,000, OR Community service Third and succeeding offenses: Fine: P2,000 OR Community service Offense: Smoking by minors: The following penalties are meted out to a minor who smokes: First offense: Community service: 4 hours If in school, render community service in school. If out of school youth, render community service under the supervision of the City Health Office and will undergo counseling by any preferred religious sect. Second offense: Community service: 8 hours Third offense and succeeding offenses: Community service: 16 hours

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4.7.4.4. How is the Marikina City Ordinance different from RA 9211? A seller under the Manila Ordinance is defined as any person who offers to customers the transfer of possession/ownership of cigarettes and cigarette paraphernalia in exchange of money or kind.105 Hence, the mere act of offering to a minor will constitute a violation of the Ordinance and penalty will attach against the person who offered unlike in RA 9211 whereby the seller must have actually sold tobacco products to minors to be liable.

5. OFFENSE: SALE OF TOBACCO PRODUCTS WITHIN SCHOOL PERIMETERS

5.1. What does the law provide? The sale or distribution of tobacco products is prohibited within one hundred (100) meters from any point of the perimeter of a school, public playground or other facility frequented particularly by minors.106 5.2 What are the elements of the offense? The following are the elements that must be proven for this offense: (1) The violator is the seller or distributor. A retailer is any person or entity that sells tobacco products to individuals for personal consumption.107 On the other hand, a distributor is any person to whom a tobacco product is delivered or sold for purposes of distribution in commerce. A manufacturer, retailer, or a common carrier is not considered a distributor.108 A wholesaler109 may be considered a distributor, while a rolling store110 may be considered a retailer. The seller or the distributor need not have a permit to come within the scope of the law. Notably, before a business entity is allowed to sell tobacco, it is required by local ordinance to secure the required business permit. If it sells without the required permit, it is not only penalized under that local ordinance for operating without a business permit, but under this law as well.
106 Rep. Act No. 9211 (2003), Sec. 10. 107 Rep. Act No. 9211 (2003), Sec. 4 (o). 108 Rep. Act No. 9211 (2003), Sec. 4 (e). 109 A wholesaler is a purchaser [who] buys or imports the commodities for resale to persons other than the end user regardless of the quantity of the transaction (Rep. Act. No. 7160, Book II, Title One, Chapter 1, Sec 131(31). 110 A rolling store is a mobile store in the form of a 4-wheeled vehicle, a trailer or any movable devise/facility which maybe taken in places where it is needed and allowed to operate. (Revised Rules and Regulations of National Food Administration on Grains Business (Pres. Decree No. 4), Regulation I (161).

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(2) He sells or distributes tobacco products. The term tobacco products refers to any product that consists of loose tobacco that contains nicotine and is intended for use in a cigarette, including any product containing tobacco and intended for smoking or oral or nasal use. 111 (3) The sale or distribution is within 100 meters from any point of the perimeter of a school, public playground or other facility frequented by minors. The term perimeter refers to any point in the boundaries as indicated in the Original Certificate of Title or Transfer Certificate of Title of the tracts of land that is actually used or occupied by a school, public playground or other facility frequented particularly by persons below eighteen (18) years of age, whether or not said tract of land is separated from adjacent tracts by a wall or fence. 112 5.3. How do you prove the offense? The following evidence must be gathered in order to prove the offense: 1. Either of the following to prove that tobacco products were sold or distributed by the violator within one hundred (100) meters from any point of the perimeter of a school, public playground, or other facility frequented by minors: a. Testimony of witness/es; OR b. Video recording or photographs; AND/OR 2. A Certified Land Title of the lot where the store is located; AND/OR 3. A Geodetic Engineers Certified measurement of the distance from the store where the cigarettes are sold or distributed to the school, public playground or other facility frequented by minors. 5.4. What are the penalties for the offense? First offense Fine: At least P5,000, OR Imprisonment: maximum of 30 days Succeeding offenses Fine: At least P5,000, OR Imprisonment: maximum of 30 days, AND Revocation of business licenses or permits
111 Rep. Act No. 9211 (2003), Sec. 4(s). 112 IRR of RA 9211 (2004), Title I, Rule III, Sec. 1.15.

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The owner, president, manager, or the most senior officers of the company thereof shall be liable for the offense. 5.5. What local ordinance/s penalize the sale of tobacco products within school perimeters? 5.5.1 Quezon City 5.4.1.1. What is the applicable ordinance? Quezon City Ordinance Number. SP 1420, S-2004. An Ordinance Modifying Ordinance No. NC-73, S-89, as amended, entitled Banning Smoking in Public Places in Quezon City and Imposing Penalty for Violation Thereof and expanding the coverage thereof in order to implement the intent and spirit contemplated in Republic Act No. 9211, otherwise known as the Tobacco Regulation Act of 2003. 5.5.1.2. What are the acts penalized? It is declared unlawful to sell or distribute cigarettes or tobacco products within 100 meters from any point of perimeter of the school, playground, or any other facility frequented by minors. 5.5.1.3. What is the penalty for the violation? Individuals: First offense: Fine: P500, OR Imprisonment: 5 days, OR Both Second offense: Fine: P1,000, OR Imprisonment: 10 days, OR Both Third offense and succeeding offenses: Fine: P2,000 Imprisonment: 10 days, OR Both

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Business establishments: If the violation is committed by a retail or sari-sari store, convenience or grocery store or any other similar business entity, the owner, proprietor, president or manager will face the penalties for individuals. Moreover, the business permit or license to operate business of such establishment will be revoked.

C. HEALTH WARNINGS
6. NON-COMPLIANCE WITH THE REQUIRED HEALTH WARNINGS ON PACKAGES OF TOBACCO PRODUCTS INTENDED FOR SALE IN THE PHILIPPINES 6.1. What does the law provide? All packages in which tobacco products are provided to consumers, withdrawn from the manufacturing facility of all manufacturers or imported into the Philippines intended for sale to the market, that is meant for sale and consumption within the Philippines, should contain health warnings starting 1 January 2004. 6.1.1. What should these warnings contain? The warnings should be printed, in either English or Filipino, on a rotating basis or separately and simultaneously and should contain any of the following: a. GOVERNMENT WARNING: Cigarette Smoking is Dangerous to Your Health (BABALA: Ang Paninigarilyo ay Mapanganib sa Iyong Kalusugan); b. GOVERNMENT WARNING: Cigarettes are Addictive (BABALA: Ang Sigarilyo ay Nakaka-adik); c. GOVERNMENT WARNING: Tobacco Smoke Can Harm Your Children (BABALA: Ang Usok ng Sigarilyo ay Mapanganib sa mga Bata); and d. GOVERNMENT WARNING: Smoking Kills (BABALA: Nakamamatay ang Paninigarilyo). 6.1.2. How often should the warnings be rotated? The warning should be rotated periodically, or separately and simultaneously printed, so that within any twenty-four (24) month period, the four (4) variations of the warnings shall appear with proportionate frequency.

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6.1.3. Where should these warnings be placed? The health warning should be on the bottom portion of one (1) front panel of every tobacco product package and occupy not less than thirty percent (30%) of such panel including any border or frame.

6.1.4. Are there any specifications/restrictions? The text of the warning shall appear in clearly legible type in black text on a white background with a black border and in contrasts by typography, layout or color to the other printed materials on the package. The health warning shall occupy a total area of not less than thirty percent (30%) of the panel including the border and frame. The Implementing Rules of RA 9211 further mandate that the health warnings shall be clearly displayed. Hence, they shall not be hidden or obscured by other printed information or images, or printed in a location where tax or fiscal stamps are likely to be applied to the package or placed in a location where it will be damaged when the package is opened. However, if the warning is likely to be obscured or obliterated by a wrapper on the package, the warning must be printed on both the wrapper and the package.

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6.1.5. What else should be placed in addition to the health warning? All packages of tobacco products that are provided to consumers shall contain, on one side panel, the following statement in a clear, legible and conspicuous manner: NO SALE TO MINORS or NOT FOR SALE TO MINORS. Such shall occupy an area of not less than ten percent (10%) of the side panel and shall appear in contrast by color, typography or layout with all the other printed material (on the side panel). Aside from the health warning and the aforementioned statement, no other printed warnings, except the health warning and the message required should be placed on cigarette packages. 6.2. What are the elements of the offense? A package containing tobacco products is in violation of Section 13 of RA 9211 if it fails to comply with any of the following requirements: (1) The manufacturer/importer prints the following warnings on the cigarette packages: a. GOVERNMENT WARNING: Cigarette Smoking is Dangerous to Your Health (BABALA: Ang Paninigarilyo ay Mapanganib sa Iyong Kalusugan); b. GOVERNMENT WARNING: Cigarettes are Addictive (BABALA: Ang Sigarilyo ay Nakaka-adik); c. GOVERNMENT WARNING: Tobacco Smoke Can Harm Your Children (BABALA: Ang Usok ng Sigarilyo ay Mapanganib sa mga Bata); and d. GOVERNMENT WARNING: Smoking Kills (BABALA: Nakamamatay ang Paninigarilyo) e. NO SALE TO MINORS / NOT FOR SALE TO MINORS (2) The warning is located on the bottom portion of one front panel of every product package.
113 Rep. Act No. 9211 (2003), Sec. 13.

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(3) The warning occupies not less than 30% of such panel, including the border or frame. (4) The text of the warning must conform to the following: a. It must appear in clear, legible, and conspicuous manner b. It must be in black text c. It must use either Helvetica or Arial (fonts) d. It must be on a white background e. It must have a black border and f. It must be in contrast by typography, layout or color to the other printer materials on the package. (5) The health warni ng occupies a total area of at least 50% of the warning frame. (6) The warnings are rotated periodically. Every 24 months, the 4 variations of health warnings must appear with proportional frequency. (7) The warning must not be hidden or obscured in any way. (8) The warning must not be damaged when the packaged is opened. (9) The size panel must have a conspicuous warning: NO SALE TO MINORS or NOT FOR SALE TO MINORS, which must occupy not less than 10% of the side panel. 6.2.1. What are the most common kinds of violations? Typical violations include: placing of stickers on packages instead of printing, non-compliance with the font size requirement, obscuring the warning by placing a sticker or tax stamp over it, and making the border so thick as to take focus away from the warning. 6.3. How do you prove the violation? The following should all be gathered in order to prove the violation: 1. The actual package containing the tobacco products. This will best prove the non-compliance with the legal requirements; AND 2. Evidence showing that the non-complaint packages in question are being sold. This may be proven by either of the following: a. Photographs or videos b. Affidavits of witness/es

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In case of instances wherein there is no Health Warning, but For Export Only is indicated in the pack, not only should the actual package containing the product be retained, but the name of the establishment as well as the date of purchase should be taken note of. 6.4. What is the penalty imposed for a violation? The following penalties are imposed on the manufacturer or retailer of the noncompliant packages of tobacco products: 114 First offense: Fine: P100,000 maximum, OR Imprisonment: 1 year maximum, OR Both Second offense: Fine: P200,000 maximum, OR Imprisonment: 2 years maximum, OR Both Third and succeeding offenses: Revocation of business permit and license, AND Fine: P400,000 maximum, OR Imprisonment: 3 years maximum. In case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable. If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall forever be barred from entering the Philippines.

114 Rep. Act No. 9211 (2003), Sec. 32 (c).

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D. PROMOTIONS, ADVERTISING, AND SPONSORSHIPS

Certain restrictions are placed on tobacco advertisement and promotions in order to carry out the Purpose of RA 9211 to promote a healthful environment,115 to inform the public of the health risks associated with cigarette smoking,116 to regulate and subsequently ban all tobacco advertisements and sponsorships,117 and to regulate the labeling of tobacco products. 118 In line with the above goals, the following restrictions apply to ALL tobacco advertising: 1. Advertisement shall not be aimed at or particularly appeal to persons under eighteen (18) years of age. 2. Advertisement shall not feature a celebrity or contain an endorsement, implied or express by a celebrity. 3. Advertisement shall not contain cartoon characters or subjects that depict humans or animals with comically exaggerated features or that attribute human or unnatural characteristics to animals, plants or other objects. 4. Advertisement shall not show, portray or depict scenes where the actual use of, or the act of using, puffing or lighting cigarettes or other tobacco products is presented to the public. 119 In addition to the restrictions above, specific limitations apply to different kinds of advertising, to be discussed below. The different offenses in connection with tobacco advertisement and promotion are the following: Non-compliance with advertisement requirements in mass media (See Section 7, Part II of this Manual) Violation of restrictions on advertising in audio, video, and computer cassettes, discs and similar medium (See Section 8, Part II of this Manual) Violation of restriction on advertising on the Internet (See Section 9, Part II of this Manual)
115 Rep. Act No. 9211 (2003), Sec. 3 (a). 116 Rep. Act No. 9211 (2003), Sec. 3 (b). 117 Rep. Act No. 9211 (2003), Sec. 3 (c). 118 Rep. Act No. 9211 (2003), Sec. 3 (d). 119 Rep. Act No. 9211 (2003), Sec. 15.

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Violation of advertisement bans (See Section 10, Part II of this Manual) Violation of restrictions on tobacco promotions (See Section 11, Part II of this Manual) Violation of restrictions on naming rights (See Section 12, Part II of this Manual) Tobacco sponsorship (See Section 13, Part II of this Manual) Violation of sample restrictions (See Section 14, Part II of this Manual)

7. NON-COMPLIANCE WITH ADVERTISEMENT REQUIREMENTS

There are four acts penalized under this section. These are non-compliance in the following modes of advertisement: 7.1 7.2 7.3 7.4 Mass media, in general Print and outdoor advertisement Cinema and television advertisement Radio advertisement

Notably, while all tobacco advertising on television, cable television and radio are now prohibited, tobacco advertising is still allowed if made in point-of-sale establishments. 120 In the discussion below, tobacco advertising is any visual and/or audible message disseminated to the public about or on a particular product that promote and give publicity by words, designs, images or any other means through broadcasts, electronic, print or whatever form of mass media, including outdoor advertisements, such as but not limited to signs and billboards. 121 7.1. Non-compliance with requirements for mass media, in general All tobacco advertising in mass media should contain a health warning that cigarette smoking is dangerous to ones health.122

120 Rep. Act No. 9211 (2003), Sec. 22. 121 Rep. Act No. 9211 (2003), Sec. 4(a). 122 Rep. Act No. 9211 (2003), Sec. 14.

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7.1.1. What are the elements of the offense? The following are the elements of the offense: (1) There is a tobacco advertisement in mass media. Mass media refers to any medium of communication designed to reach a mass of people. Examples of mass media include print media (e.g., newspapers, magazines, publications), broadcast media (e.g., radio, television, cable television, and cinema), and electronic media (e.g., internet).123 However, communications designed to reach persons by private, postal, or regular mail, electronic mail, and similar means are not considered as mass media.124 (2) The advertisement does not contain a health warning that cigarette smoking is dangerous to ones health. 7.1.3. How do you prove the offense? The following should be gathered in order to prove the violation: 1. Photographs or video capture or video recording of the advertisement to prove: (a) that there was a tobacco-related print advertisement; and (b) that the advertisement did not have the requisite health warning; AND 2. The testimony of witness/es to prove that such tobacco advertisement was indeed aired. 7.2. Non-compliance with requirements for print and outdoor advertisement For print and outdoor advertisement, the law provides that the warning frame should be centered across the bottom of the advertisement and occupy a total area of not less than fifteen percent (15%) of such advertisement including any border or fame. The text of the health warnings should be clearly visible and legible, printed in a prominent color as approximate and shall appear in contrast by color, typography or layout with all other printed material in the advertisement. The warning shall not be hidden or obscured by other printed information or images in the advertisement.

123 Rep. Act No. 9211 (2003), Sec. 4(f ). 124 IRR of RA 9211 (2004), Title I, Rule III, Sec. 1.11.

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7.2.1. What are the elements of the offense? The following should be gathered in order to prove the violation: (1) There is a print advertisement for tobacco. (2) Either of the following attends the print advertisement: a. The print advertisement does not have the mandated health warning: GOVERNMENT WARNING: Cigarette Smoking Is Dangerous To Your Health. b. Or, if there is such a warning, either of the following defects are present: i. The warning is not centered ii. The warning does not occupy a total area of not less than 15% of such advertisement; iii. The text of the warning is not clearly visible or legible; OR iv. The text is hidden or obscured by other text or images. 7.2.2. How do you prove the offense? The following should be gathered in order to prove the violation: 1. The print advertisement itself. This would be the best proof of noncompliance with the requirements set forth by the law; AND 2. Either of the following to prove that such print advertisement was disseminated or shown to the public: a. The testimony of witness/es who saw the advertisement, OR b. Photographs or video capture or video recording showing that the print advertisement was disseminated to or seen by the public. 7.3. Non-compliance with requirements for cinema and television advertisement For television and cinema advertisements, the warning should be clearly shown and voiced over in the last five (5) seconds of the advertisement. This requirement applies regardless of the duration of the advertisement, and even when such advertisement is silent. The health warning should occupy a total area of not less than fifty percent (50%) of the television screen. The warning

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should also be clearly visible, legible, and audible, in black text on white background or white text on black background. No other images except in writing should be included in the warning frame. 125 7.3.1 What are the elements of the offense? The following elements must be present: (1) There is a tobacco advertisement in television or in the cinema. (2) Either of the following attends the advertisement: a. There is no mandated health warning GOVERNMENT WARNING: Cigarette Smoking Is Dangerous To Your Health b. The health warning is not voiced over in the last five (5) seconds of the advertisement; c. If there is a health warning, the following defects are present: i. The health warning occupies less than fifty percent (50%) of the screen; ii. The health warning is not visible, legible, and audible; iii. It is not in black text on white background or white text on black background; or iv. There are other images included in the warning frame. 7.3.2. How do you prove the offense? The following should be gathered in order to prove the violation: 1. Photographs or video capture or video recording of the advertisement to prove: (a) that there was a tobacco-related advertisement; and (b) that the advertisement did not have the requisite health warning; AND 2. The testimony of witness/es to prove that such tobacco advertisement was indeed aired in television or in the cinema. 7.4. Non-compliance with requirements for radio advertisement For radio advertisement, the warnings stated after the advertisement should be clearly and audibly voiced over in the last five (5) seconds of the advertisement. This requirement applies regardless of the duration of the advertisement.

125 Rep. Act No. 9211 (2003), Sec. 14 (c).

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7.4.1. What are the elements of the offense? (1) There is a tobacco advertisement over the radio. (2) It does not comply with either of the following requirements: a. There was no health warning voiced over in the last five (5) seconds of the advertisement; OR b. If there was a warning, it was not voiced over clearly and audibly. 7.4.2. How do you prove the offense? The following should be gathered in order to prove the violation: 1. A tape recording of the advertisement to prove: (a) that there was a tobacco-related advertisement; and (b) that the advertisement did not have the requisite health warning; AND 2. The testimony of witness/es to prove that such tobacco advertisement was indeed aired over the radio. 7.5. What is the penalty imposed for a violation of any of the offenses above? The following penalties are meted out to the violator: 126 First offense: Fine: P100,000 maximum, OR Imprisonment: 1 year maximum, OR Both Second offense: Fine: P200,000 maximum, OR Imprisonment: 2 years maximum, OR Both Third offense: Revocation of business permit and license, AND Fine: P400,000 maximum, OR Imprisonment: 3 years maximum. In case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable.

126 Rep. Act No. 9211 (2003), Sec. 32(c).

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If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall forever be barred from entering the Philippines. 7.6. Comment The law does not state who the violator is. Notably, however, the law defines an advertiser as any person or entity on whose account or for whom an advertisement is prepared and disseminated by the advertising agency, which is service established and operated for the purpose of counseling or creating and producing and/or implementing advertising program in various forms of media. Hence, the advertiser pertains not to the advertising agency, but to the tobacco company for whose benefit the advertisement is made. The liability under this offense should therefore pertain to the tobacco company. The retailer who distributes such ads in his establishment, together with the advertising agency that made the advertisement, should also be held liable. However, absent a clear provision making them liable, the requirements provided by Sec. 14 may not be imposed upon them, considering that penal laws are to be construed liberally in favor of the accused.

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8. NON-COMPLIANCE WITH THE RESTRICTIONS ON TOBACCO ADVERTISING IN AUDIO, VIDEO AND COMPUTER CASSETTES/DISCS AND SIMILAR MEDIUM
8.1. What does the law provide? No electronic advertisements should be incorporated within any video or audio cassette, videogame machine, optical disc or any similar medium. This is allowed only if access to the item is restricted to persons eighteen (18) years of age or older. 127 8.2. What are the elements of the offense? To prove a violation of Section 20 one must show that: (1) There is a tobacco advertisement. Advertisement refers to any visual and/or audible message disseminated to the public about or on a particular product that promote and give publicity by words, designs, images or any other means through broadcast, electronic, print or whatever form of mass media, including outdoor advertisements, such as, but not limited to signs and billboards. 128 (2) The advertisement is in electronic form; (3) The advertisement is incorporated within any video or audio cassette, videogame machine, optical disc or any similar medium. Video game includes any electronic amusement device that utilizes a computer, microprocessor, or similar electronic circuitry and its own cathode ray tube, or is designed to be used with a television set or monitor that interacts with the user of the device; (4) Access to the item is not restricted to persons 18 years of age or older. 8.3. How do you prove the offense? The evidence needed to prove the commission of the crime are the following:
127 Rep. Act No. 9211 (2003), Sec. 20. 128 Rep. Act No. 9211 (2003), Sec. 4 (a).

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1. Video or audio cassette, videogame machine, optical disc or any similar medium to best prove that the device contains a tobacco advertisement; AND 2. Either of the following to prove that access to the item is not restricted to persons 18 years of age or older: a. Testimony of a witness/es who have seen or made use of such audio cassette, videogame machine, optical disc or any similar medium. The testimony of a minor who was able to access the item would be best. b. Video recordings or photographs showing that the device contains tobacco advertisement and that it may be accessed by any individual, regardless of age. 8.4. What is the penalty for the offense? The following penalties are meted out to the non-compliant retailer: 129 First offense: Fine: P100,000 maximum, OR Imprisonment: 1 year maximum, OR Both Second offense: Fine: P200,000 maximum, OR Imprisonment: 2 years maximum, OR Both Third offense: Revocation of business permit and license, AND Fine: P400,000 maximum, OR Imprisonment: 3 years maximum. In case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable. If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall forever be barred from entering the Philippines.

129 Rep. Act No. 9211 (2003), Sec. 32(c).

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8.5. Comment Unlike in the sale/distribution of tobacco products, there is no law which prohibits the sale/distribution of video/audio cassette, videogame machine, optical disc or any similar medium with tobacco advertisement to minors. Furthermore, the Philippines does not have a ratings system which serves to regulate the sale of such items to a certain age group based on its content or theme (i.e. excessive violence, sexual content, etc). These factors may serve as detriments to apprehending possible violators of this provision as the buyers of such items might not know of the existence of the electronic advertisements until they view it (usually in their own residence). The reporting procedure provided for by law might seem too cumbersome to the ordinary buyer, who may just opt to just stay silent as such advertisement poses no apparent threat to their health. Moreover, the law does not state clearly who the violator is. However, a careful reading of the provision leads to the conclusion that it is the retailer who should also be held liable. As worded, the law presumes that the mechanism for restricting access to non-minors is not built-in into the video. It is access to the item itself (which contains the tobacco advertisement) which is restricted. This can only be complied with by the retailer by first verifying the age of the buyer.

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9. NON-COMPLIANCE WITH THE RESTRICTIONS ON ADVERTISING ON THE INTERNET

9.1. What does the law provide? Advertisements are prohibited on the Internet and other similar medium unless that Internet site is restricted to persons eighteen (18) years of age or older. A site will be considered restricted if a person cannot obtain access beyond the first page of the website unless the persons has established that he or she is at least eighteen (18) years old. This limitation applies to commercial communications and will not prevent the use of company Internet websites to provide information regarding a company, its products and smoking and health related information. Notably, business-to-business transactions conducted on the Internet, and other similar medium between tobacco manufactures, retailers and distributors are not prohibited by the law. 130 9.2. What are the elements of the offense? The following elements must be present: (1) There is an advertisement of tobacco products. Advertisement refers to any visual and/or audible message disseminated to the public about or on a particular product that promote and give publicity by words, designs, images or any other means through broadcasts, electronic, print or whatever form of mass media. 131 On the other hand, tobacco product is defined as any product that consists of loose tobacco that contains nicotine and is intended for use in a cigarette, including any product containing tobacco and intended smoking or oral or nasal use. 132 (2) The advertisement is done through the Internet or a similar medium. (3) Such advertisement is made on an Internet site, which is not restricted to persons eighteen years of age or older. A site will be deemed restricted if a person cannot obtain access beyond the first page of the website unless the person has established that he or she is at least eighteen (18) years old.
130 Rep. Act No. 9211 (2003), Sec. 21. 131 Rep. Act No. 9211 (2003), Sec. 4(a). 132 Rep. Act No. 9211 (2003), Sec. 4(s).

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(4) The advertisement is not a company website which provides data regarding a company, its products and smoking and health related information. This last element serves as an exception to the prohibition on tobacco advertising in the Internet. 9.3. How do you prove the offense? The following evidence must be gathered in order to prove non-compliance with the legal restrictions on tobacco advertising over the Internet: 1. Printout of the first page of the website to prove the site is not restricted (i.e. it does not require proof that a person accessing the site is eighteen (18) years old or older and that the website is not a company website); AND 2. A printout of the web page containing the tobacco advertisement to prove such advertisement; AND 3. Certification from the person who printed the abovementioned to prove the authenticity of the printout; AND 4. Testimony of witness/es to prove: (a) that there was a tobacco advertisement in the Internet, and (b) that the advertisement is not restricted to persons over 18 years of age. 9.4. What is the penalty for the offense? The following penalties apply to the non-compliant tobacco company:133 First offense: Fine: P100,000 maximum, OR Imprisonment: 1 year maximum, OR Both Second offense: Fine: P200,000 maximum, OR Imprisonment: 2 years maximum, OR Both Third offense: Revocation of business permit and license, AND Fine: P400,000 maximum, OR

133 Rep. Act No. 9211 (2003), Sec. 32(c).

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Imprisonment: 3 years maximum. In case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable. If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall forever be barred from entering the Philippines. 9.5. Comment The limitation is only made to apply to non-restricted sites i.e. those that may be accessed by persons below eighteen years of age. This means that restricted sites are not included in the restriction. If the intent for the limitation is to ensure that tobacco products are not promoted to minors,134 then there is a problem as some minors are able to easily access some of these restricted sites by filling in false information as regards their age. Company websites are excluded from the restriction. Access to these sites may be easily gained. In these sites, information about their products is given and this may be considered as a form of advertisement which renders nugatory the intent of the law. 135

134 Rep. Act No. 9211 (2003), Sec. 3 (e). 135 Rep. Act No. 9211 (2003), Sec. 3 (c).

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10. VIOLATION OF ADVERTISING BANS (MASS MEDIA, CINEMA AND OUTDOOR ADVERTISING)
10.1. What forms of advertisement have been banned? There are four (4) forms of advertisements that have been banned. These are: 1. Tobacco advertising on television, cable television and radio (See 10.3) 2. Tobacco advertising outdoors (See 10.4) 3. Tobacco advertising in cinemas (See 10.5) 4. Tobacco advertising in mass media (See 10.6) Beginning 1 January 2007, all tobacco advertising on television, cable television and radio have been prohibited. Starting 1 July 2007, all cinema and outdoor advertising were prohibited. No leaflets, posters and similar outdoor advertising materials are allowed to be posted, except inside the premises of point-ofsale retail establishments. Lastly, beginning 1 July 2008, all forms of tobacco advertising in mass media were prohibited EXCEPT tobacco advertisements placed inside the premises of point-of sale establishments. 136 Advertising in any of these places or with the use of these mediums is prohibited. The other provisions in RA 9211 relating to the partial ban in mass media, outdoor and cinema advertising have been rendered obsolete when Sec. 22 came into play on January 2007 for television, cable television and radio advertising; July 2007 for cinema and outdoor advertising; and July 2008 for mass media advertising. This is in consonance with the laws purpose, as stated in Sec. 3, to regulate and subsequently ban all tobacco advertisements and sponsorships. The only exception is advertisements inside the premises of point-of-sale establishments. 10.2 What do advertisement and advertising mean? An advertisement, as applied to these four offenses, refers to any visual and/or audible message disseminated to the public about or on a particular product that promote and give publicity by words, designs, images or any other means through broadcast, electronic, print or whatever form of mass media, including outdoor advertisements, such as, but not limited to signs and billboards.137
136 Rep. Act No. 9211 (2003), Sec. 22. 137 Rep. Act No. 9211 (2003), Sec. 4 (a).

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On the other hand, advertising refers to the business of conceptualizing, presenting, making available and communicating to the public, through any form of mass media, any fact, data or information about the attributes, features, quality or availability of consumer products, services or credit.138 10.3. Tobacco advertising on television, cable television and radio 10.3.1. What does the law provide? Beginning 1 January 2007, all tobacco advertising on television, cable television and radio is prohibited.139 There is no exception to this prohibition. 10.3.2. What are the elements of the offense? The following are the elements of the offense: (1) There is a tobacco advertisement; AND (2) It is shown on television, cable television, or the radio; 10.3.3. How do you prove the offense? The following evidence should be adduced to prove the violation: (1) Photographs, video capture, video recording, or tape recording of the advertisement to prove that there was a tobacco-related advertisement; AND (2) The testimony of witness/es to prove that such tobacco advertisement was indeed aired in television, cable television, or on the radio after January 1, 2007. 10.4. Tobacco advertising outdoors 10.4.1. What does the law provide? Beginning 1 July 2007, all outdoor advertising shall be prohibited. No leaflets, posters and similar outdoor advertising materials be posted, except inside the premises of point-of-sale retail establishments.140

138 Rep. Act No. 9211 (2003), Sec. 4(b). 139 Rep. Act No. 9211 (2003), Sec. 22, 1st par. 140 Rep. Act No. 9211 (2003), Sec. 22, 2nd par.

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10.4.2. What are the elements of the offense? For a person to be charged under this offense, the following elements must be present: (1) There is a tobacco advertisement; (2) The tobacco advertising is made outdoors. This means that the advertisement is posted or installed outside. Examples of these are leaflets, posters, billboards, signs, or tarpaulins which are posted or installed outside the establishment; (3) It is not made within the premises of point-of-sale establishments. An exception is carved out for advertisements made inside the premises of point-of-sale establishments. Point-of-sale refers to any location at which an individual can purchase or otherwise obtain tobacco products.141 Itinerant or ambulant vendors are not covered by the term point-of-sale.142 Therefore, sari-sari stores, grocery stores, convenience stores, specialty shops, and the like which sell cigarettes are point-of-sale establishments. On the other hand, individuals who sell cigarettes, such as those who walk along streets and sell to drivers are not covered by the law. When the law says inside the premises of point-of-sale establishments, this is interpreted to mean literally, that advertisements must be placed inside the establishment. The act penalized is outdoor advertising. Therefore, even if the advertisement is placed at the parking lot or at the rooftop of an establishment, such advertisement still falls under the prohibition since it is not inside the premises of point-of-sale establishments. To construe otherwise would defeat the purpose of the law for an outdoor advertisement ban. Therefore, even the posting or the stringing together of leaflets to form banderitas outside the point-of-sale establishment is a violation of the law. A point to note is the possibility that leaflets will be strewn together to form banderitas. This case is an obvious violation of the law because these are placed in a location outside the premises of the point-of-sale establishment. If the leaflets are used for the aforementioned purpose, then such is considered as outdoor advertising and is, therefore, covered by the ban and is a violation of the law.
141 Rep. Act No. 9211 (2003), Sec 4 (k). 142 IRR of RA 9211 (2004), Title I, Rule III, Sec. 1.17.

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10.4.3. How do you prove the offense? The following evidence should be adduced to prove the violation: (1) The advertisement itself, such as the leaflets, posters, and other advertising materials to prove the existence of such tobacco advertisement. If these cannot be obtained, as in the case of a billboard, a photograph, video capture or video recording of such advertisement would suffice; AND (2) Photographs, video capture, or video recording showing that the tobacco advertisement was placed outside the premises of the pointof-sale establishment. To strengthen further the proof of the violation, it is also advisable to obtain the testimony of witnesses that such tobacco advertisement was placed outside the premises of the point-of-sale establishment. This however, is not indispensable, if the photographs, video capture, or video recording already clearly show that the tobacco advertisement was outside the establishment. 10.5. Tobacco advertising in cinemas 10.5.1. What does the law provide? All cinema advertising shall be prohibited. No leaflets, posters and similar outdoor advertising materials be posted, except inside the premises of pointof-sale retail establishments.143 10.5.2. What are the elements of the offense? For a person to be charged under this offense, the following elements must be present: (1) There is a tobacco advertisement; AND (2) It is made in connection with the showing of any film. This means that the prohibition applies not only to on-screen advertising in the cinemas, but to any kind of advertising in connection with the showing of any film.144 ; AND
143 Rep. Act No. 9211 (2003), Sec. 22. 144 Rep. Act No. 9211 (2003), Sec. 22 in relation to Sec. 18.

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(3) It is not made within the premises of a point-of-sale retail establishment. This last requirement constitutes an exception. However this exception would only apply to films where only those eighteen (18) years old and above are permitted.145 10.5.2. How do you prove the offense? The following should be gathered in order to prove the cinema advertising: 1. The advertisement itself, such as leaflets, posters and other tobacco advertising materials in relation to the promotion of a particular film. If the advertisement is shown on-screen, then the original or a copy of the advertisement should be taken; AND 2. Testimony of witness/es to prove that there was a tobacco advertisement made in connection with the showing of any film, or that it was made on-screen in the cinema. 10.6. Tobacco advertising in mass media 10.6.1. What does the law provide? Beginning 1 July 2008, all forms of tobacco advertising in mass media shall be prohibited except tobacco advertisements placed inside the premises of pointof sale establishments. 10.6.2. What are the elements of the offense? For a person to be charged under this offense, the following elements must be present: (1) There is a tobacco advertisement; (2) The tobacco advertisement is in mass media. Mass media refers to any medium of communication designed to reach a mass of people. For this purpose, mass media includes print media such as, but not limited to, newspapers, magazines, and publications; broadcast media such as but not limited to radio, television, cable television, and cinema; electronic media such as but not limited to, the internet. However,
145 Rep. Act No. 9211 (2003), Sec. 22 cf. Sec. 18 which totally prohibits tobacco advertisements where persons below 18 years are permitted for admission with respect to a film showing.

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communications designed to reach persons by private, postal or regular mail, electronic mail, and similar means are NOT considered as mass media ; 146 AND (3) The advertisement is not placed inside the premises of point-of-sale establishments. 10.6.3. How do you prove the offense? The following should be gathered in order to prove the offense: 1. The original copy of the advertisement would be the best evidence to prove the existence of such ad. If this cannot be obtained, then photographs, photocopies, video capture or video recording of the advertisement may be resorted to. If only a copy is obtained, it would also be advisable to get a certification from the broadcaster, publisher or printer that the copy is a certified true copy of the original; AND 2. The testimony of witness/es to prove that such tobacco advertisement was indeed aired or published or communicated. 10.7. What is the penalty for violating the advertising ban? The following penalties apply to the non-compliant tobacco company, retail establishment, cinema establishment, or media company:147 First offense: Fine: P100,000 maximum, OR Imprisonment: 1 year maximum, OR Both Second offense: Fine: P200,000 maximum, OR Imprisonment: 2 years maximum, OR Both Third offense: Revocation of business permit and license, AND Fine: P400,000 maximum, OR Imprisonment: 3 years maximum.
146 IRR of RA 9211 (2004), Title I, Rule III, Sec. 1.11. 147 Rep. Act No. 9211 (2003), Sec. 32(c).

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In case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable. If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall forever be barred from entering the Philippines. 11.8. What does inside the premises in the law mean? A Petition for Declaratory Relief was filed by Fortune Tobacco asking for a clarification of the words inside the premises. Several tobacco companies have intervened in the case and their argument is that inside the premises must be construed in the meaning proffered in the Implementing Rules and Regulation of the law which states that it refers to the tract of land and the building or buildings thereon, including the open spaces between the buildings located on the same tract of land and within the perimeter of said tract of land.148 It is being averred that the ordinary meaning of premises allows for the posting of advertisements even in the parking lots, on the roof and even on the walls of point-of-sale establishments regardless if these may be visible from the outside. However, note must be given that the law itself is clear and unambiguous when it states that all forms of tobacco advertising x x x shall be prohibited except tobacco advertisements placed inside the premises of point-of-sale establishments. 149 Any ambiguity that may be found in this statement must be resolved by reading the provision in conjunction with the purpose of the law which is to regulate and subsequently ban all tobacco advertisements and sponsorships150 Construing the phrase inside the premises to mean that advertisements posted in an outdoor public environment, such as parking lots, is allowed is contrary to the purpose of the law and should not be favored.

148 IRR of RA 9211 (2004). Title I, Rule III, Sec. 1.18. 149 Rep. Act No. 9211 (2003), Sec. 22. 150 Rep. Act No. 9211 (2003) Sec. 3.

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11. RESTRICTIONS ON TOBACCO PROMOTIONS

There are nine restrictions on tobacco promotions: 151 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 Target Market and Participants Communications to Consumers Points-of-Sale Telephone Communications Placement of Props in Visual Media Cigarette Brands on Smoking Related Paraphernalia Cigarette Brands on Merchandise Cigarette Brands on Products for Minors Advertisements on Shopping Bags

11.1 Target Market and Participants 11.1.1. What does the law provide? Promotions must be directed only to persons at least eighteen (18) years old. No person below eighteen (18) years old or who appear to be below eighteen (18) years old may participate in such promotions. The participants in promotions must be required to provide proof of age. 152 Under Sec. 4(l) of the Act, promotions refer to an event or activity organized by or on behalf of a tobacco manufacturer, distributor or retailer with the aim of promoting a brand of tobacco product, which event or activity would not occur but for the support given to it by or on behalf of the tobacco manufacturers name, trademark, logo, etc. on non-tobacco products. Promotions include the paid use of tobacco products bearing the brand names, tradenames, logos, etc. in movies, television, and other forms of entertainment. Some examples of promotions are parties, concerts, contests and other social events. There are three ways to incur a violation of Sec. 23 (a) of RA 9211, due to the three duties imposed thereunder:

151 Rep. Act No. 9211 (2003), Sec. 23. 152 Rep. Act No. 9211 (2003), Sec. 23(a).

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(1) That tobacco promotions be directed only to adults as opposed to minors; (2) That no minor or person who appears to be a minor participate in such promotions; and (3) That participants in promotions must be required to show proof of age. By a plain reading of the provision, it appears that the first and third rules apply against tobacco manufacturers, distributors or retailers or those who act on their behalf; while the second applies against minors or those who appear to be minors. However, reading the statute as a whole and in keeping with its intendment, it is submitted that all three responsibilities fall on the shoulders of such manufacturers, distributors and retailers. Thus, a minor or one who looks like a minor should not be held criminally liable, or even to face charges, for participating in tobacco promotions. Compliance with this duty should be on account of the promoter, and not on those sought to be protected. 11.1.2. What are the elements of the offense? The elements for a violation of the first duty (tobacco promotions be directed only to adults as opposed to minors) are: (1) That tobacco is promoted. Promotions are an event or activity organized by or on behalf of a tobacco manufacturer, distributor or retailer with the aim of promoting a brand of tobacco product, which event or activity would not occur but for the support given to it by or on behalf of the tobacco manufacturers name, trademark, logo, etc. on non-tobacco products. This includes the paid use of tobacco products bearing the brand names, tradenames, logos and the like in movies, television and other forms of entertainment.153 Other examples may include sporting and recreational events, concerts and parties. Note that following this definition, if the event or activity may take place even without the tobacco manufacturers involvement, it is not a promotion. Thus, where a manufacturer merely sponsors an event, it does not meet this first element. It may, however, be punished for violating the ban on sponsorships. (2) It is directed to minors. Although there is no clear definition of what the phrase directed to means, the reasonable view is that it speaks of targeting a particular demographic sector in promoting tobacco products. This element may be problematic because it makes the age
153 Rep. Act No. 9211 (2003), Sec. 4(l).

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of eighteen (18) the dividing line between the allowed target market (adults) and the prohibited target market (minors).154 The intricacy lies in the fact that in reality, the maturity, preferences and lifestyles of persons in their mid-teens do not differ substantially from those of persons in their late teens. In other words, where a promotion targets the 18 to 20 age bracket, for instance, it may equally appeal to the 14 to 17 year old segment. In fact, promotions directed to a twenty-and-above age group may just have the same appeal to the mid-teen sector. In the absence of a clear demarcation in the law, the reasonable view would be to treat promotions which may appeal to minors as promotions directed to minors within the meaning of this provision. The elements for a violation of the second duty (no minor or person who appears to be a minor participate in such promotions) are: (1) That tobacco is promoted. Promotions is defined in RA 9211 as an event or activity organized by or on behalf of a tobacco manufacturer, distributor or retailer with the aim of promoting a brand of tobacco product, which event or activity would not occur but for the support given to it by or on behalf of the tobacco manufacturers name, trademark, logo, etc. on non-tobacco products. This includes the paid use of tobacco products bearing the brand names, tradenames, logos and the like in movies, television and other forms of entertainment.155 Other examples may include sporting and recreational events, concerts and parties. Note that following this definition, if the event or activity may take place even without the tobacco manufacturers involvement, it is not a promotion. Thus, where a manufacturer merely sponsors an event, it does not meet this first element. Restrictions on sponsorship, however, are punished elsewhere in the Act.
154 This problem is further fortified by the fact that in marketing, the age of majority does not play a distinctive role. Target markets are defined by preferences, rather than an arbitrary factor, such as age. Thus, if promotions are made by offering cellular phones as raffle prizes by way of texting in serial numbers taken from cigarette packs, the market is much wider than a single age group. It would conceivably be equally attractive to those in their early twenties as it would be to those in their mid-teens. The manufacturer in this case can simply set-up the defense that the promotion was not directed to minors, or at least, exclusively to minors. By likewise targeting an older age group, the manufacturer can successfully avoid a satisfaction of this element. It could, of course, be argued that as long as a promotions market may appeal minors, then a violation is made. Reliance can be made on the intention of the law, which is to absolutely shield such minors from tobacco promotions. If it be so, then any promotion which could attract the youth would henceforth be punishable. However, this interpretation is potentially untenable, because it could amount to an unreasonable deprivation of property rights under the Due Process clause in Art. III, Sec. 1 of the 1987 Philippine Constitution especially since it would exceed the provisions purpose of protecting the youth, which in this case seems to be those below 18 years of age. Needless to say, this issue would not matter in cases where the promotion is clearly directed to a much younger age group, as for example, by employing cartoon characters and mascots in the activity or event. 155 Rep. Act No. 9211 (2003), Sec. 4(l).

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(2) A minor or one who appears to be a minor participates in the promotion. The elements for a violation of the third duty (that participants in promotions must be required to show proof of age): (1) That tobacco is promoted. (2) That a person participates in the pro motion. Since the term participate does not distinguish between the public and those acting in behalf of the manufacturer, distributor or retailer, it should be understood in its ordinary meaning. For example, participation would include a promotional model who gives out flyers in bars and restaurants in the same way that it includes a contestant in a promotional activity. (3) Presentation of proof of age was not required. In conducting promotional activities, the manufacturers, distributors, retailers and their agents must require participants to provide proof of age. Since the purpose is only to protect minors, an exemption can perhaps be made with respect to persons who clearly appear to be adults. However, compliance must be had as to those who, by their appearance, could be minors. Proof of age may be in the form of passports, drivers licenses, Social Security System identification cards, postal identification cards, and the like.156 Such proof must contain both the photograph of the bearer as well as his date of birth. In any case, the duty does not end with the mere act of requiring the presentation of proof of age. To fulfill the mandate of this rule, the identity and age of the participant must be ascertained so as not to render the same meaningless. In the event that manufacturers, distributors, retailers or their agents require proof of age from a participant but fail to strictly enforce this third duty, they may be held liable for violating the second duty discussed above, i.e. for permitting a minor or one who appears to be a minor to participate in a promotion. 11.1.3. How do you prove the offense? The following evidence must be gathered in order to prove an offense: 1. Tobacco promotional materials to prove the fact of advertisement; AND
156 IRR of RA 9211 (2004), Title IV, Rule XI, Sec. 1 in relation to Title III, Rule II, Sec. 3 thereof.

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2. Either of the following to prove that the promotion was directed to minors, participated in by minors, or that presentation of proof of identification is not required: a. Testimony of witness/es (please see discussion on witnesses who are minors under 4.1.3); OR b. Photographs, video captures, video recordings. 11.2. Communications to Consumers 11.2.1. What does the law provide? Communications to consumers about tobacco promotions shall comply with the provisions of this Act governing tobacco advertising. In addition to the required health warning, the age requirement for participation in any promotion must be clearly marked on the program materials distributed to consumers. 157 11.2.2. What are the elements of the offense? The elements of the offense are the following: (1) That tobacco is promoted. (2) The promotion is communicated to consumers. Some common forms of materials used in communicating promotions are flyers, letters and invitations sent by mail or electronic mail. However, any form of communication regarding tobacco promotions should be subject to all advertising restrictions, whenever applicable. For example, if a promotional activity is communicated via streamers or banners, Section 17 can be applied as well. (3) The promotional materials do not comply with the provisions on advertising or display the age requirement. The provisions on advertising referred to are: c. All tobacco advertising in mass media shall contain either in English or Filipino, the following health warning; GOVERNMENT WARNING: Cigarette Smoking is Dangerous to Your Health; d. For print and outdoor advertisement, the warning frame shall be centered across the bottom of the advertisement and
157 Rep. Act No. 9211 (2003), Sec. 23 (b).

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occupy a total area of not less than fifteen percent (15%) of such advertisement including any border or fame. The text of the health warnings shall be clearly visible and legible, printed in a prominent color as approximate and shall appear in contrast by color, typography or layout with all other printed material in the advertisement. The warning shall not be hidden or obscured by other printed information or images in the advertisement; e. For television and cinema advertisements, the warning shall be clearly shown and voiced over in the last five (5) seconds of the advertisement, regardless of the duration of the advertisement, even when such advertisement is silent. The health warning shall occupy a total area of not less than fifty percent (50%) of the television screen and shall be clearly visible, legible, and audible, in black text on white background or white text on black background. No other images except in writing shall be included in the warning frame; f. For radio advertisement, the warnings stated after the advertisement shall be clearly and audibly voiced over in the last five (5) seconds of the advertisement, regardless of its duration; g. Advertisement shall not be aimed at or particularly appeal to persons under eighteen (18) years of age; h. Advertisement shall not feature a celebrity or contain an endorsement, implied or express by a celebrity; i. Advertisement shall not contain cartoon characters or subjects that depict humans or animals with comically exaggerated features or that attribute human or unnatural characteristics to animals, plants or other objects; j. Advertisement shall not show, portray or depict scenes where the actual use of, or the act of using, puffing or lighting cigarettes or other tobacco products is presented to the public; k. Advertisements shall not be placed in any printed publication unless there is a reasonable basis to believe that at least

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seventy-five percent (75%) of the readers of such publication are eighteen (18) years of age and above, and the number of youth who read it constitutes less than ten percent (10%) of all youth in the Philippines; l. Advertisements shall not be placed on the packaging or outside covers (front and back) of a magazine, newspaper, journal or other publication printed for general circulation; m. Outdoor advertisements shall not be placed on billboards, wall murals, or transport stops or stations which are within the one hundred (100) meters from any point of the perimeter of a school, public playground or other facility frequented particularly by persons below eighteen (18) years of age; n. Outdoor advertisements shall not, either individually or when placed in deliberate combination with other outdoor tobacco advertising, exceed seventy (70) square meters in total size; o. Outdoor advertisements shall not be placed on taxis, buses, trains or other public conveyance or in stations, terminals or platforms thereof, except point-of-sale establishments; p. Tobacco advertisements are prohibited in connection with the showing of any film where persons below eighteen (18) years old are permitted admission; q. Advertisements shall not be broadcast on television, cable television, and radio between seven o clock in the morning and seven o clock at night; r. No electronic advertisements shall be incorporated within any video or audio cassette, videogame machine, optical disc or any similar medium, unless access to the item is restricted to persons eighteen (18) years of age or older. For the purpose of this Section, video game includes any electronic amusement device that utilizes a computer, microprocessor, or similar electronic circuitry and its own cathode ray tube, or is designed to be used with a television set or monitor that interacts with the user of the device;

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s. Advertisements are prohibited on the internet and other similar medium unless that Internet site is restricted to persons eighteen (18) years of age or older. A site will be deemed restricted if a person cannot obtain access beyond the first page of the website unless the persons has established that he or she is at least eighteen (18) years old. This limitation applies to commercial communications and shall not prevent the use of company Internet websites to provide information regarding a company, its products and smoking and health related information. This Section shall prohibit business-to-business transactions conducted on the Internet, and other similar medium between tobacco manufacturers, retailers and distributors; t. Beginning 1 January 2007, all tobacco advertising on television, cable television and radio shall be prohibited; u. Beginning 1 July 2007, all cinema and outdoor advertising shall be prohibited. No leaflets, posters and similar outdoor advertising materials be posted, except inside the premises of point-of-sale retail establishments; and v. Beginning 1 July 2008, all forms of tobacco advertising in mass media shall be prohibited except tobacco advertisements placed inside the premises of point-of sale establishments. The minimum age requirement for participants in tobacco promotions is eighteen (18) years old. Nevertheless, nothing prevents the promoters from imposing a higher age requirement. Whatever such age be, it should be clearly marked on the materials in a manner that does not defeat its purpose. Thus, where the age is printed in such a way that a consumer may be misled into believing that the number displayed is anything other than the age requirement, a violation is incurred. If the age indicated is below 18, the promoter may be liable under this paragraph in addition to paragraph (a), since in that case, the mandated minimum age requirement would not have been indicated at all.

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11.2.3. How do you prove the offense? The following must be gathered to prove the offense: 1. Copy of the program materials; AND 2. Testimony witness/es that the promotional materials were being distributed. 11.3. Points-of-Sale 11.3.1. What does the law provide? All stalls, booths and other display concerning tobacco promotions must be limited to point-of-sale of adult only facilities.158 Please see the discussion on adult only facilities in the next subtopic. 11.3.2. What are the elements of the offense? The following are the elements of the violation: (1) That tobacco is promoted. (2) Displays are employed in connection with the promotion. Stalls and booths as covered by the prohibition. The phrase other displays, however, is comprehensive enough to cover virtually any item that is used to exhibit tobacco products. Hence, wooden box containers (as commonly used by vendors who offer cigarettes for sale to cars stuck in traffic) may be included in the scope. (3) The displays are located in places other than the points-of-sale of adult only locations. A point-of-sale refers to any location at which an individual can purchase or otherwise obtain tobacco products. 159 The law does not define adult only facilities. No aid is availing elsewhere either, as there has been no legal concept falling squarely with, similar to, or within such nomenclature. Even taking it in its ordinary meaning, the term remains vague. It is unclear, for instance, if a bar or club would qualify as an adult only facility. Many of these remain accessible to minors since in such establishments, patrons are not required to present proofs of age, which in itself does not constitute a violation of any legal requirement. Absent this
158 Rep. Act No. 9211 (2003), Sec. 23 (c). 159 Rep. Act No. 9211 (2003), Sec. 4 (k).

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legal duty, clubs and bars do not restrict access exclusively to adults, and thus, would not be adult only facilities in the ordinary sense. This analysis extends to practically all other establishments restaurants, moviehouses, malls, gyms, spas, even massage parlors and casinos. It seems that in actuality, there is no such place as an adult only facility. Perhaps the closest possible examples of adult only facilities would be offices, where employment is regularly limited to adults. But then account should be taken of the right to privacy, which prevents the government from intruding into all persons rights within the privacy of their own homes or property. Hence, if a private corporation chooses to set up a cigarette stall within its office, the government will be unable to compel compliance with Sec. 23(c) on no less than constitutional considerations. That would leave only government offices within the contentious phrase. But even then, minors such as children of employees or even the public are often brought into government facilities. In order to give meaning to the phrase, therefore, it appears that an adult only facility must refer to establishments which target adult consumers or clients, such as hotel bar-restaurants. However, until the legislature defines adult only facilities, or does so indirectly by limiting certain enterprises to adults, would-be violators may justify their actions on the ground that this particular provision of law is vague. 11.3.3. How do you prove the offense? In order to prove that the facility is frequented by minors, and that there are tobacco promotional displays in these facilities, the following should be gathered: 1. Testimony of witness/es; AND 2. Photographs, video capture, or video recording of said stalls. 11.4. Telephone Communications 11.4.1. What does the law provide? Telephone Communications concerning promotional offers, programs or events must include a recorded health warning message in English or Filipino consistent with the warnings specified under RA 9211.160

160 Rep. Act No. 9211 (2003), Sec. 23 (d).

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11.4.2. What are the elements of the offense? The following are the elements of the offense: (1) That tobacco is promoted. (2) The promotion is communicated by telephone. Although the provision speaks of telephones, it should be made to apply by analogy to mobile phones, satellite phones and the like, since the intention of the law is clear and it would be easily circumvented should the restriction be limited to telephones. In any event, there is no substantial difference between telephones, mobile phones, satellite phones and the like, insofar as verbal communications are concerned. (3) The communication does not include a recorded health warning in English or Filipino. The health warning required is one that complies with those described in Sections 13 and 14 of RA 9211, especially with regard to Section 14(d). Thus, it must state the following: Government warning: Cigarette smoking is dangerous to your health clearly and audibly in the last five seconds of the communication. Additionally, it must be in either the Filipino or English language. Although the provision specifies that the health warning be recorded, should it be proven that in the absence of a recording such warning is verbally relayed in a live telephone conversation by the caller.161 This should be deemed substantial compliance therewith since the aim of the law would have been fulfilled. Thus, there should be no violation in such a case. It should be noted, however, that in spite of its application by analogy to mobile phones, it does not apply to text messages, picture messages and other non-voice communications. That paragraph (d) is meant to cover only voice calls is made evident by the requirement that the health warning be recorded. Should the legislators have intended to include messages made through fax, Single Messaging System, Multimedia Messaging System and the like, it would have been simple for them to so provide. Their silence on the matter thus reveals an intention to cover only verbal correspondence.

161 Rep. Act No. 9211 (2003), Sec. 23 (d).

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11.4.3. How do you prove the offense? The following should be gathered to prove the offense: 1. Recording of the telephone communication, AND 2. Testimony of a person who received such communication. 11.5. Placement of Props in Visual Media 11.5.1. What does the law provide? No placement shall be made by manufacturer, distributor, or retailer of any tobacco product or tobacco product packages and advertisement as a prop in any television program or motion picture produced for viewing by the general public or in a video, or optical disc or on video game machine.162 11.5.2. What are the elements of the offense? To constitute a violation, the following elements must concur: (1) That tobacco is promoted. Please refer to the previous discussion on tobacco promotions. (2) There is a TV program or motion picture for viewing by the general public or a video, optical disc or video game machine. This element is a comprehensive enumeration of visual media, since both free and cable TV, as well as commercially-shown films, are available for viewing to the general public. Movies which are not shown commercially, meanwhile, are necessarily contained in videos or optical discs in order to be viewed. However, pay-per-view television appears to be excluded from the enumeration. Notably as well, the provision applies to video game machines but not to video games themselves.163 (3) A tobacco product, tobacco product package or advertisement is placed as a prop therein. A tobacco product refers to any product that consists of loose tobacco that contains nicotine and is intended for use in a cigarette, including any product containing tobacco and intended smoking or oral or nasal use.164
162 Rep. Act No. 9211 (2003), Sec. 23 (e). 163 Video games are covered by Sec. 23 (e) of RA 9211. 164 Rep. Act No. 9211 (2003), Sec. 4 (s).

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The term package, meanwhile, refers to packs, boxes, cartons or containers of any kind in which any tobacco product is offered for sale to consumers.165 Finally, an advertisement refers to any visual and/or audible message disseminated to the public about or on a particular product that promote and give publicity by words, designs, images or any other means through broadcasts, electronic, print or whatever form of mass media, including outdoor advertisements, such as but not limited to signs and billboards.166 What is prohibited is the placement of any of the preceding as props, thus, if any of the covered visual media by circumstance include a tobacco product, package or advertisement, this element is absent. As an example, when an individual happens to be holding a cigarette pack in public is unintentionally filmed in the background of a movie or TV show, there is no placement as a prop. (4) The placement is made by a manufacturer, distributor or retailer. This particular element is important in the sense that it provides an escape door for violators of this provision. By stating that no placement shall be made by any manufacturer, distributor or retailer, these prohibited persons may simply employ the services of a public relations or marketing firm or the like to undertake such placement for them. Nevertheless, such manufacturers, distributors or retailers may be held accountable as agents by applying the New Civil Code provisions on Agency and the Revised Penal Code provisions on principals. 11.5.3. How do you prove the offense? The following should be adduced in order to prove the offense: 1. The original copy of the video or the optical disc or video game machine; or a copy of the TV program or movie viewing showing such tobacco promotion; AND 2. Testimony of witness/es that such promotions were made. 11.6. Cigarette Brands on Smoking Related Paraphernalia

165 Rep. Act No. 9211 (2003), Sec. 4(i). 166 Rep. Act No. 9211 (2003), Sec. 4 (a).

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11.6.1. What does the law provide? The name, logo or other indicia of a cigarette brand may appear on cigarette lighters, ashtrays, of other smoking related items. If such name, logo or other indicia of the cigarette brand is larger than fifty (50) square centimeters, the item must carry a health warning consistent with the warnings specified in RA 9211. 167 11.6.2. What are the elements of the offense? (1) That tobacco is promoted. Please refer to the previous discussion on tobacco promotions. (2) An indicia of a cigarette brand larger than 50 cm2 appears on a smoking related item. This element requires that the name, logo or other indicia of the cigarette brand be over 50 cm2, which means that a manufacturer, distributor, retailer or any person interested in the production of smoking related items may simply print such indicia at the maximum size of 50 cm2 in order to avoid the application of this law. In other words, interested persons may not comply with the health warning requirement by strict compliance with the provision. Additionally, these names, logos and other indicia may come in various shapes and dimensions, therefore there may be difficulty in making on-the-spot assessments on compliance with this rule. In any case, the area of 50 cm2 is equivalent to 7.75 square inches. (3) There is no health warning consistent with the Act. Should the indicia exceed 50 cm2, however, there must be a health warning that is consistent with Section 13 of RA 9211, as opposed to Section 14 which deals with mass media. The paragraph does not require an exact compliance with the aforementioned provision since it is specifically applicable to cigarette packs, however, it must satisfy the purpose and spirit behind such warning to the furthest extent possible.

167 Rep. Act No. 9211 (2003), Sec. 23 (f ).

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11.6.3. How do you prove the offense? The following should be gathered: 1. The promotional item itself is the best evidence. If this cannot be obtained, then a photograph, video capture, or video recording showing such item; AND 2. Testimony of witness/es, photographs, video capture, or video recording that the promotional items in question are being used or distributed. 11.7. Cigarette Brands on Merchandise 11.7.1. What does the law provide? No merchandise such as, but not limited to, t-shirts, caps, sweatshirts, visors, backpacks, sunglasses, writing implements and umbrellas, may be distributed, sold or offered, directly or indirectly, with the name, logo or other indicia of a cigarette brand displayed so as to be visible to others when worn or used. This enumeration provided in the law is not exclusive by express provision thereof, and thus, is broad enough to cover items such as key chains, tissue, tissue holders, and any other items which by their nature may be considered merchandise. Clothing items must be in adult sizes only.168 11.7.2. What are the elements of the offense? The following elements must concur: (1) That tobacco is promoted. Please refer to the previous discussion on tobacco promotions. (2) There is merchandise or a clothing item with the name, logo or indicia of a cigarette brand. This element requires that the name, logo or other indicia of a cigarette brand appear on the merchandise or clothing item. (3) The merchandise or clothing item is distributed, sold or offered. Under this element, the merchandise must be either distributed, sold or offered. Mere production or manufacturing of the same without such action would thus not satisfy this requisite.
168 Rep. Act No. 9211 (2003), Sec. 23 (g).

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(4) The name, logo or indicia is visible to others when worn or used. This element contemplates that the merchandise or clothing item is worn used in accordance to its purpose. Hence, if underwear such as boxer shorts containing a logo are used in public for some other purpose, such as in a stage performance, or in a manner whereby it is visible when it is not meant to be seen, such as in case of low-rise jeans, this element is not satisfied. An example of a permissible use of name, logo or indicia would be a tag in the inside collar of a tshirt, or a name in the inside of a jacket. Another violation may be incurred in the case of clothing items, as when not all are in adult sizes. In such a case, the first three elements above are the same, but the fourth will be: (4) Not all clothing items are in adult sizes. There is some ambiguity in what would constitute adult or non-adult sizes, but this should be left to the appreciation of the law enforcer and judiciary, as oftentimes size will be a matter of impression and would be incapable of definition. Ordinarily, it would be easy to distinguish clothing size for a pre-pubescent child from a young adult, but the line may not be as clear as to teenagers. 11.7.3. How do you prove the offense? The following evidence must be gathered to prove the offense: 1. Original sample of the said merchandise bearing the name/logo/ indicia; AND 2. Testimony of someone who saw another wearing such merchandise; OR a photograph or video of another person wearing the merchandise. 11.8. Cigarette Brands on Products for Minors 11.8.1. What does the law provide? No name, logo or other indicia of a cigarette brand or element of a brandrelated marketing activity, may appear on items that are marketed to or likely to be used by minors such as but not limited to sports equipment, toys, dolls, miniature replicas of racing vehicles, video games, and food. The manufacturer or company must take all available measures to prevent third parties from using the companys brand names, logos or other proprietary material on products that are directed toward minors.169
169 Rep. Act No. 9211 (2003), Sec 23 (h).

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11.8.2. What are the elements of the offense? The following elements must concur: (1) That tobacco is promoted. (2) There is an item marketed to or likely to be used by a minor. These items include sports equipment, toys, dolls, miniature replicas of racing vehicles, video games and food. (3) The name, logo or other indicia of a cigarette brand or element of brand-related activity appears thereon. This is an element which is satisfied by the mere appearance of the name, logo or other indicia of a cigarette brand or element of a brand-related activity. An example of a brand-related activity would be an annual sporting event organized by a cigarette manufacturer. Since such an event would have its own identity, elements thereof such as a logo of the event, would constitute an element of a brand-related activity. 11.8.3. How do you prove the offense? The following should be gathered: 1. The promotional item itself; AND 2. Testimonial evidence to prove that the promotional items are being used by, marketed to, or are likely to be used by minors. 11.9. Advertisements on Shopping Bags 11.9.1. What does the law provide? No tobacco advertisements may be placed on shopping bags.170 11.9.2. What are the elements of the offense? The following elements should concur: (1) That tobacco is promoted. (2) There is a tobacco advertisement. Advertisement is any visual and/or audible message disseminated to the public about or on a particular product that promotes and gives publicity by words, designs, images

170 Rep. Act No. 9211 (2003), Sec. 23 (i).

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or any other means through broadcasts, electronic, print or whatever form of mass media, including outdoor advertisements, such as but not limited to signs and billboards. 171 Within the context of this offense, however, the term should be limited to a visual message in printed form. Title IV, Rule XI, Sec. 9, IRR includes the name, logo or indicia of a brand of a tobacco product in the prohibition, which inclusion is subsumed by the phrase gives publicity in the definition above. In the absence of a specification in the law as to who is responsible for the offense prescribed herein and in keeping with the intendment of the law, the parties liable for this particular offense should be (1) those who cause the placement of tobacco advertisements on shopping bags such as tobacco manufacturers or their agents as well as retailers, in the concept of principals by inducement; and (2) those who actually place the advertisements thereon, such as printing companies, in the concept of direct principals. No other persons may be held liable, following the wording of the provision, since the punishable act is the placement of the advertisement. (3) The advertisement is placed on a shopping bag. The law does not define the term shopping bag. Because of this, the phrase must be taken in its ordinary meaning. Thus, any container, usually flexible, used for carrying or containing items purchased by consumers in stores and provided by the storeowner or retailer for the formers benefit qualifies as a shopping bag. Furthermore, reusing the shopping bag for purposes other than the transaction in which it was obtained by the consumer does not diminish or alter its nature as a shopping bag. 11.9.3. How do you prove the offense? The following should be gathered in order to prove the offense: 1. The shopping bags with the tobacco advertisement; AND 2. Testimony of witness/es, photographs, OR video recording showing that such shopping bags are being used.

171 Rep. Act No. 9211 (2003), Sec. 4 (a).

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11.10. What are the penalties for violating the restrictions on tobacco promotions? The following penalties are meted out to the non-compliant manufacturers, retailers, or tobacco companies:172 First offense: Fine: P100,000 maximum, OR Imprisonment: 1 year maximum, OR Both Second offense: Fine: P200,000 maximum, OR Imprisonment: 2 years maximum, OR Both Third offense: Revocation of business permit and license, AND Fine: P400,000 maximum, OR Imprisonment: 3 years maximum. In case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable. If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall forever be barred from entering the Philippines.

172 Rep. Act No. 9211 (2003), Sec. 3(a).

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12. VIOLATION OF RESTRICTIONS ON NAMING RIGHTS

There are two ways of violating the restriction on naming rights: 12.1. Entering into an agreement with a sports league or any team involved in such league where payment is made or other consideration is given by the manufacturer in exchange for use of tobacco products brand. 12.2. Naming an arena or stadium with a tobacco brand. 12.1. Entering into an agreement with a sports league or team. 12.1.1. What does the law provide? No manufacturer may enter into any agreement pursuant to which payment is made or other consideration is provided by such manufacturer to any sports league, or any team involved in any such league, in exchange for use of tobacco products brand. 173 12.1.2. What are the elements of the offense? (1) There is an agreement between a manufacturer of tobacco products and a sports league or any team involved in any such league. Manufacturer refers to any person entity, including a re-packer, who makes, fabricates, assembles, processes, or labels a finished product. (2) There was consideration and payment for such agreement; (3) It is in exchange for use of a tobacco product brand (as a name for such sports league or team).174 Notably, that as long as the name used is a tobacco product brand, the same will fall within the purview of the provision, regardless if the tobacco product brand is at the same time, a tobacco company name.

173 Rep. Act No. 9211 (2003), Section 24 (a) 174 Rep. Act No. 9211 (2003), Sec. 4 (h).

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12.1.3. How do you prove the offense? The following must be gathered to prove the offense: 1. The original documents embodying the agreement would be the best evidence; OR 2. Circumstantial evidence showing such agreement: a. Testimony of witness/es to the agreement; OR b. Testimony of witness/es who saw the teams sporting tobacco brands; OR c. Photographs or surveillance videos; 12.2. Naming an arena or stadium with a tobacco brand. 12.2.1. What does the law provide? No manufacturer may enter into any agreement for the naming rights of any stadium or arena using a tobacco product brand name or otherwise cause a stadium or arena to be named with such a brand name. 175 12.2.2. What are the elements of the offense? [1] There is an agreement between a tobacco manufacturer and the owner of a stadium or arena; AND [2] The agreement provides that the stadium or arena will be named using a tobacco product or brand name. As long as the name used is a tobacco product brand, the same will fall within the purview of the provision, regardless if the tobacco product brand is at the same time, a tobacco company name. 12.2.3. How do you prove the offense? Any of the following may be used to prove the offense: a. The original documents embodying the agreement; AND/OR b. Testimony of witnesses to the agreement; AND/OR c. A picture of the stadium or area bearing the name of a tobacco product or brand name.

175 Rep. Act No. 9211 (2003), Sec. 24 (b).

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12.3. What are the penalties for the offense? The following penalties are meted out to the non-compliant tobacco company and team or company that entered into a prohibited contract: 176 First offense: Fine: P100,000 maximum, OR Imprisonment: 1 year maximum, OR Both Second offense: Fine: P200,000 maximum, OR Imprisonment: 2 years maximum, OR Both Third offense: Revocation of business permit and license, AND Fine: P400,000 maximum, OR Imprisonment: 3 years maximum. In case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable. If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall forever be barred from entering the Philippines.

176 Rep. Act No. 9211 (2003), Sec. 32 (c).

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13. TOBACCO SPONSORSHIP

Two acts are penalized under section 26 of RA 9211: 13.1. Violation of the sponsorship ban 13.2. Registration of tobacco brand name as company name 13.1. Violation of the sponsorship ban 13.1.1. What does the law provide? Beginning 1 July 2008, cigarette and tobacco companies are prohibited from sponsoring any sport, concert, cultural art or event, as well as individual and team athletes, artists, or performers where such sponsorship shall require or involve the advertisement or promotion of any cigarette or tobacco company, tobacco product or tobacco use, name, logo or trademarks and other words, symbols, designs, colors or other depictions commonly associated with or likely to identify a tobacco product.177 13.1.2. What are the elements of the offense? [1] There is a sport, concert, or cultural art or event, OR individual or team athletes, artists or performers;

COVERED EVENTS
sport, concert, or cultural art or event

EXCLUDED
Seminars Workshops Job Fairs, etc. Events which are not sportrelated, and non-cultural events

PERSONS
individual or team athletes, artists or performers

Journalists Media personalities Socialites, etc.

All persons whose professions do not entail performances, exhibitions of skill as an artist or athlete

177 Rep. Act No. 9211 (2003), Sec. 26.

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[2] Such event, person or group is being sponsored by a cigarette or tobacco company. Sponsorship refers to any public or private contribution to a third party in relation to an event, team or activity made with the aim of promoting a brand of tobacco product, which event, team or activity would still exist or occur without such contribution.178 [3] The sponsorship agreement requires the advertisement or promotion of cigarette use, name or brand. Advertisement refers to any visual and/or audible message disseminated to the public about or on a particular product that promote and give publicity by words, designs, images or any other means through broadcasts, electronic, print or whatever form of mass media, including outdoor advertisements, such as but no limited to signs and billboards.179 Promotions refers to an event or activity organized by or on behalf of a tobacco manufacturer, distributor or retailer with the aim of promoting a brand of tobacco product, which event or activity would not occur but for the support given to it by or on behalf of the tobacco manufacturers name, trademark, logo, etc. on non-tobacco products. This includes the paid use of tobacco products bearing the brand names, tradenames, logos, etc. in movies, television and other forms of entertainment.180 13.1.3. How do you prove the offense? 1. The sponsorship agreement between a cigarette or tobacco company and the event organizers or individual or team athletes, artists or performers, requiring the advertisement or promotion of cigarette use or brand in exchange for the contributions; OR 2. The posters, leaflets, and other promotional items for the event, showing a tobacco or cigarette company sponsored the event; OR 3. Materials given by a tobacco company to be used by the individual, team, artist or performer to advertise or promote cigarette use or a brand; OR 4. Testimony of the event organizer, individual, team, artist or performer concerned attesting to the sponsorship agreement with the tobacco company and the advertisement and/or promotion required in exchange therefor; OR
178 Rep. Act No. 9211 (2003), Sec. 4 (q). 179 Rep. Act No. 9211 (2003), Sec. 4(a). 180 Rep. Act No. 9211 (2003), Sec. 4 (l).

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5. Testimony of those who attended the event as to its apparent sponsorship by a tobacco company, as seen in the materials displayed and the extent of promotion of the brand during the event; OR 6. Photographs or video recording of the event, person or group showing that the tobacco sponsorship was involved (i.e., logo of the tobacco brand or company is used around the venue, or items worn by the individual, team athletes, artists or performers; the colors of the tobacco brand or company was the theme) 13.2. Registration of tobacco brand name as company name 13.2.1. What does the law provide? No manufacturer may register a tobacco brand name as a company name after the passage of RA 9211.181 The Tobacco Regulation Act (RA 9211) was passed on June 23, 2003. 13.2.2. What are the elements of the offense? The following elements must concur in order to constitute the violation: 1. There is a manufacturer. Manufacturer refers to any person entity, including a re-packer, who makes, fabricates, assembles, processes, or labels a finished product. 182 2. Such manufacturer registered a tobacco brand name as a company name; 3. The registration was made after June 23, 2003. *Examples of local tobacco company names existing prior to June 23, 2003: Fortune Tobacco Corporation Philip Morris Philippines Manufacturing Inc. La Suerte Cigar and Cigarette Factory

181 Rep. Act No. 9211 (2003), Sec. 26. 182 Rep. Act No. 9211 (2003), Sec. 4 (h).

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*Examples of tobacco brand names which cannot be used as company names after June 23, 2003: 183 Ashford Basic Benson and Hedges Bond Street Camel Capri Champion Chesterfield Dunhill Hope Kool Longbeach Lucky Strike Mark Marlboro Merit Next Parliament Salem Viceroy West Winston

13.2.3. How do you prove the offense? A certification from the Securities and Exchange Commission that the manufacturer registered a tobacco brand name as a company name will be the best evidence. This can be supported by other documents where the manufacturer used a tobacco brand name as a company name. 13.3. What are the penalties for the above offenses? The following penalties are meted out to the non-compliant tobacco company who made the prohibited sponsorships or registered a tobacco brand as a company name, and to the group or individual who entered into a prohibited sponsorship contract:184 First offense: Fine: P100,000 maximum, OR Imprisonment: 1 year maximum, OR Both Second offense: Fine: P200,000 maximum, OR Imprisonment: 2 years maximum, OR Both

183 Intellectual Property Office. 184 Rep. Act No. 9211 (2003), Sec. 32 (c).

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Third offense: Revocation of business permit and license, AND Fine: P400,000 maximum, OR Imprisonment: 3 years maximum. In case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable. If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall forever be barred from entering the Philippines.

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14. VIOLATION OF SAMPLING RESTRICTIONS

14.1. What does the law provide? The distribution of samples of tobacco products to persons below eighteen (18) years old is prohibited. 185 14.2. What are the elements of the offense? The following elements must concur: [1] Samples of tobacco products are being distributed. A sample is a representative piece or item that shows the quality or the nature of the whole from which it was taken. Tobacco Products refer to any product that consists of loose tobacco that contains nicotine and is intended for use in a cigarette, including any product containing tobacco and intended smoking or oral or nasal use. Unless stated otherwise, the requirements of this Act pertaining to cigarettes shall apply to other tobacco products. 186 [2] They are being distributed to persons below 18 years of age. 14.3. How do you prove the offense? The following should be gathered in order to prove the offense: 1. Birth certificate or photographic ID with the of birth or other proof of age to prove minority; AND 2. Any of the following: a. Testimony of the minor/s to whom the samples were given. This would be the best evidence. b. Testimony of witness/es who saw the samples were distributed to minors c. Pictures or video recording showing that the tobacco samples were distributed to minors.

185 Rep. Act No. 9211 (2003), Sec. 27, RA 9211. 186 Rep. Act No. 9211 (2003), Sec. 4 (s).

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14.4. What is the penalty for the offense? The following penalties are meted out to the non-compliant person or entity who gave tobacco samples to minors: 187 First offense: Fine: P100,000 maximum, OR Imprisonment: 1 year maximum, OR Both Second offense: Fine: P200,000 maximum, OR Imprisonment: 2 years maximum, OR Both Third offense: Revocation of business permit and license, AND Fine: P400,000 maximum, OR Imprisonment: 3 years maximum. In case of a business entity or establishment, the owner, president, manager or officials thereof shall be liable. If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall forever be barred from entering the Philippines.

187 Rep. Act No. 9211 (2003), Sec. 32 (c).

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PART III IMPLEMENTATION

A. IMPLEMENTATION AT THE NATIONAL LEVEL 1. APPLICATION OF RA 9211 2. IMPLEMENTORS OF RA 9211 3. INTER AGENCY COMMITTEE-TOBACCO (IAC-TOBACCO) 4. OFFENDERS UNDER RA 9211 5. ACTION UPON DISCOVERY OF A CRIME UNDER RA 9211 5.1. Procedure for the issuance of a warrant of arrest 5.2. Procedure for making an arrest 6. LEGAL ACTIONS AND REMEDIES AGAINST OFFENDERS 7. MONITORING AND ENFORCEMENT GUIDELINES (MEG) 7.1. Purpose of MEG 7.2. Powers and responsibilities of the IAC-Tobacco under MEG 8. CRIMINAL ACTION 8.1. Who can institute criminal action 8.2. Procedure for institution of criminal action 8.3 Steps when action initiated by mayor or PNP 8.4. Steps when crime discovered by IAC-Tobacco employee 8.5. Steps when crime discovered by any other person 9. CIVIL REMEDIES AGAINST VIOLATORS OF RA 9211 10. ADMINISTRATIVE REMEDIES AGAINST VIOLATORS OF RA 9211 B. IMPLEMENTATION AT THE LOCAL LEVEL 1. INTRODUCTION: NATIONAL LAW VS. LOCAL LAW 2. MAKATI CITY

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2.1. Profile of Implementation in Makati City 2.2. Steps in proceeding against individuals 2.3. Steps in proceeding against establishments 2.4. Enforcement Flowchart 3. MANDALUYONG CITY 3.1. Profile of Implementation in Mandaluyong City 3.2. Steps in proceeding against individuals 3.3. Steps in proceeding against establishments 3.4. Enforcement Flowchart 4. MANILA CITY 4.1. Profile of Implementation in Manila City 4.2. Steps in proceeding against individuals 4.3. Steps in proceeding against establishments 4.4. Enforcement Flowchart 5. MARIKINA CITY 5.1. Profile of Implementation in Marikina City 5.2. Steps in proceeding against individuals 5.3. Steps in proceeding against establishments 5.4. Enforcement Flowchart 6. PASIG CITY 6.1. Profile of Implementation in Pasig City 6.2. Steps in proceeding against individuals 6.3. Steps in proceeding against establishments 6.4. Enforcement Flowchart 7. QUEZON CITY 7.1. Profile of Implementation in Quezon City 7.2. Steps in proceeding against individuals

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7.3. Steps in proceeding against establishments 7.4. Enforcement Flowchart A. IMPLEMENTATION AT THE NATIONAL LEVEL 1. In what cases is RA 9211 applicable? RA 9211 applies to all tobacco products placed into commerce in the Philippines. Notably, however, section 13 of RA 9211 (on health warnings on cigarette packages) does NOT apply to tobacco products intended or offered by the manufacturer for export and not for (retail) sale in the Philippines. It is required that the shipping container of such products be prominently marked on the outside Export Only. However, tobacco products which are marked for export, but are sold/ traded/distributed in the Philippine market, shall be subject to immediate confiscation and destruction.188 2. Who should implement RA 9211? RA 9211 expressly identifies the government offices and agencies which shall be responsible for its enforcement: 1. Philippine National Police (PNP);189 2. Local Government officials, such as, a. City or municipal mayor; b. City or municipal engineer; c. City or municipal building official. It authorizes these officials to take the necessary steps to effectively implement the said law and its implementing rules, such as the institution of criminal proceedings against violators of the Act, as well as to cause the removal of non-compliant cinema and outdoor advertising, and tobacco-related selfservice facilities.190

188 Rep. Act No. 9211 (2003), Sec. 30. 189 Section 24 (a) of RA 6975 provides that the PNP must enforce all laws and ordinances relative to the protection of lives and properties. 190 IRR of RA 9211 (2004), Title VI, Rule II, Sec. 2.

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Other offices and agencies which should enforce RA 9211, pursuant to their mandate or charter although not mentioned in RA 9211 itself, include the following: 1. Local Government officials not specifically/expressly identified under RA 9211,191 such as, a. Provincial, city or municipal health office;192 b. Provincial, city or municipal environment and natural resources office; 193 c. Other LGU officials and deputized personnel.194 Most important is the Inter-Agency Committee Tobacco (hereinafter referred to as IAC-Tobacco), which was created under the same law. It is the body responsible for overseeing the implementation of RA 9211, and its primary implementing agency.195 3. What is the Inter-Agency Committee Tobacco (IAC-Tobacco)? The Inter-Agency Committee Tobacco was created by RA 9211 as its primary implementing agency. The law granted it the exclusive power and function to administer and implement the provisions of RA 9211.196 It shall oversee the implementation of the said law.197 The IAC-Tobacco has as its Chairperson, the Secretary of the Department of Trade and Industry (DTI); and as its Vice-Chairperson, the Secretary of the Department of Health (DOH). It is composed of nine Member Agencies/Organizations: 1. Secretary of the Department of Agriculture (DA); 2. Secretary of the Department of Justice (DOJ); 3. Secretary of the Department of Finance (DOF); 4. Secretary of the Department of Environment and Natural Resources (DENR);
191 See Rep. Act No. 7160 (1991). 192 A local government units health officer has the duty to execute and enforce laws, ordinances and regulations relating to public health (Rep. Act No. 7160, Book 3, Title V, Sec.478(b)(4)(iii)) 193 A local government units environment and natural resources officer has the duty to coordinate with government agencies and NGOs in the implementation of measures to prevent and control pollution (Rep. Act No. 7160, Book 3, Title V, Sec.484(b)(3)(vi)). 194 In the barangay level, the punong barangay is mandated to enforce all laws and ordinances which are applicable within the barangay. See Rep. Act No. 7160, Book 3, Title I, Sec.389 (b)(1). 195 Rep. Act No. 9211 (2003), Sec. 3(g) & 29. 196 Rep. Act No. 9211 (2003), Sec. 29. 197 Rep. Act No. 9211 (2003), Sec. 3(g).

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5. Secretary of the Department of Science and Technology (DOST); 6. Secretary of the Department of Educaton (DepEd); 7. Administrator of the National Tobacco Administration; 8. A representative from the Tobacco Industry to be nominated by the legitimate and recognized associations of the industry; and 9. A representative from a non-government organization (NGO) involved in public health promotion nominated by DOH in consultation with the concerned NGOs; The Department Secretaries may designate their Undersecretaries as their authorized representative to the IAC-Tobacco.198 The Secretariat of the IAC-Tobacco is the Bureau of Trade Regulation and Consumer Protection of the Department of Trade and Industry (DTI), which has the following functions: 1. Prepare the annual Compliance Monitoring Report which will be submitted to the President of the Philippines and to both Houses of Congress; 2. Prescribe, upon approval by the IAC-Tobacco, the contents and format of any report to be required from all manufacturers and importers of tobacco products; 3. Provide technical, administrative and such other support services as may be required by the IAC- Tobacco. All member agencies of the IAC- Tobacco shall provide assistance to the Secretariat, when so requested by the latter.199 4. Who are offenders under RA 9211? Persons who violate RA 9211 may be grouped into: 1. Individuals 2. Establishments 200 The procedures to be undertaken in proceedings against each, as well the penalties that may be imposed upon each of them, may be different.

198 Rep. Act No. 9211 (2003), Sec. 29. 199 IRR of RA 9211 (2004), Title VII, Rule I. 200 The government, not being above the law, is likewise subject to RA 9211.

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As regards individuals, the penalties imposable are fines and/or imprisonment. In the case of minors caught selling, buying or smoking cigarettes or any other tobacco products, the provisions of Article 189 of PD 603 otherwise known as the Child and Youth Welfare Code shall apply, according to RA 9211 which was passed in 2003. However, RA 9344 should now apply in proceedings against minors, as it is the specific law dealing with minor offenders. As regards establishments, the owner, president, manager or officials shall be liable, who may be subject to imprisonment, the payment of fines, and/or the cancellation and/or revocation of business licenses or permits to operate. If the guilty officer is an alien, he shall summarily be deported after serving his sentence, and shall be forever barred from re-entering the Philippines.201 5. What can we do against those who violate RA 9211? What actions should be taken upon discovery of the commission of a crime under RA 9211? Three courses of action may be taken against a violator of RA 9211: (1) report the violation to the authorities, (2) arrest the violator; and/or (3) file a case against the violator. Private individuals who witness the commission of a violation of RA 9211 may report it to any of the following law enforcers: 1. 2. 3. 4. 5. 6. 7. City or municipal mayor; City or municipal engineer; City or municipal building official; City or municipal health official Any member of the PNP; Any member of the MMDA (if within Metro Manila); Any official deputized for law enforcement by an LGU (e.g. Green Police of Pasig, MAPSA of Makati, OPSS personnel of Marikina, and other such local officials); 8. Any employee or personnel of any IAC- Tobacco Member Agency/ Organization. The offender may also be arrested, and delivered to the proper authorities, or the nearest police station or jail, without unnecessary delay. The arrest may be made by a police officer armed with a proper warrant of arrest. On the other hand, any private individual or police office may make a warrantless arrest in the following cases:

201 Rep. Act No. 9211 (2003), Sec. 32; IRR of RA 9211 (2004), Title VI.

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1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; 2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it.202 5.1. What is the procedure for the issuance of a warrant of arrest? The complaint or information shall be filed with the proper court, which in cases involving RA 9211 should be either the Municipal Trial Court or Municipal Circuit Trial Court or the Regional Trial Court. The complainant must ensure compliance with the following requirements: 1. The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause; 2. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file; 3. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or in their absence or unavailability, before a notary public; and 4. Each of such officials must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. 203 Only a judge may issue a warrant of arrest, after finding probable cause following proper and personal examination and inquiry of the complainant and his witnesses. The Constitution states thus: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except on probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons to be seized.204 Otherwise, any evidence obtained in violation thereof shall be inadmissible for any purpose in any proceeding.205

202 RULES OF COURT, Rule 113, Sec. 5(a). 203 RULES OF COURT, Rule 112, Sec. 8(b) in relation to Sec. 3(a). 204 CONST., art. III, Sec. 2. 205 CONST., art. III, Sec. 3(2).

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The judge must then personally evaluate the evidence, or personally examine in writing and under oath the complainant and his witnesses in the form of searching questions and answers. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause, he shall dismiss said complaint or information. However, he may require the submission of additional evidence within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall dismiss the case within ten (10) days from its submission or expiration of said period. On the other hand, if the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest.206 5.2. What is the procedure for making an arrest? When making an arrest by virtue of a warrant, the PNP officer must inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except: 1. When he flees; or 2. When he forcibly resists before the officer has opportunity to so inform him; or 3. When the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest. But after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.207 The private individual himself may immediately place the accused under arrest even without a warrant, if the following circumstances are present: 1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; 2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it. 208

206 RULES OF COURT, Rule 112, Sec. 8 (b). 207 See CONST., Art. III; RULES OF COURT, Rule 112, Sec. 9 & Rule 113, Sec. 7. 208 RULES OF COURT, Rule 113, Sec. 5.

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In such cases, the private individual making the arrest must inform the person to be arrested of the intention to arrest him and the cause of the arrest. On the other hand, any PNP officer making a warrantless arrest must inform the person to be arrested of his authority and the cause of the arrest. Both the private individual and the peace officer may do away with these requirements in the following situations: 1. Accused is engaged in the commission of an offense; 2. Accused is pursued immediately after its commission; 3. Accused has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him; or 4. When the giving of such information will imperil the arrest.209 Whether made with or without a warrant, it shall be the duty of the arresting officer or private citizen to deliver the accused to the nearest police station or jail without unnecessary delay. 210 6. What are the possible legal actions and remedies against offenders? Private complainants and law enforcers may resort to any of the following remedies: 1. Criminal action 211 2. Civil action 212 Notably, a case may also be filed against a public official or enforcer who fails or refuses to enforce the law. 213 In any legal action, the proper procedures as provided in applicable laws, rules and regulations and other issuances must be complied with, including the Constitution and Bill of Rights, laws and ordinances, as well as the Rules of Court. 214 In addition, and more recently in 2008, the IAC- Tobacco approved the IACTobacco Monitoring and Enforcement Guidelines (MEG). The MEG was passed, in order to assist the IAC- Tobacco in the administration and implementation of the provisions of RA 9211, as well as in its monitoring functions, particularly in view of the laws penal provisions. 215
209 210 211 212 213 214 215 RULES OF COURT, Rule 113, Sec. 8 & 9. RULES OF COURT, Rule 113, Sec. 3 Rep Act. No 9211 (2003), Sec. 32; IRR of RA 9211 (2004), Title VI. Rep Act. No 9211 (2003), Sec. 28; IRR of RA 9211 (2004), Title V; See also The CIVIL CODE. See REVISED PENAL CODE, Article 208; Rep. Act 7160 (1991), Articles 60 (c), 389 (a), (b) (1) and 391 (a) (1). Rep Act. No 9211 (2003), Sec. 28; IRR of RA 9211 (2004), Title V & VI. IAC - Tobacco Monitoring and Enforcement Guidelines (2008) hereinafter MEG.

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7. What is MEG? The MEG is short for the Monitoring and Enforcement Guidelines of the Tobacco Regulation Act and its Implementing Rules and Regulations, or Memorandum Circular No. 01, series of 2008. It was signed and approved by the members of the IAC- Tobacco on June 30, 2008, and published in the Business Mirror and the Philippine Daily Inquirer on August 28, 2008. A copy was furnished the National Administrative Register on August 29, 2008. 7.1. What is the purpose of MEG? The MEG was passed in order to assist the IAC-Tobacco in the administration and implementation of the provisions of RA 9211. It seeks to clarify and fulfill the monitoring and enforcement function of the IAC-Tobacco, deemed more necessary by the presence of penal provisions in RA 9211. Simply, the MEG provides for a uniform procedure in the reporting, investigation, and recording of violations of RA 9211 and its IRR. 216 7.2. What are the powers and responsibilities of the IAC-Tobacco under MEG? The MEG requires proactive vigilance in monitoring compliance by the IAC-Tobacco. Particularly, under MEG, all IAC-Tobacco Member Agencies/ Organizations shall, at all times, be vigilant in monitoring compliance with the provisions of RA 9211 and its IRR. Such vigilance shall include the conduct, with or without complaint, of regular and routine inspections to monitor compliance with the provisions of RA 9211 and its IRR in every locality in the Philippines.217 Moreover, the MEG designates Pilot Agencies among the IAC - Tobacco members, which were in turn assigned their respective areas of administrative responsibility, as follows: 218 1. Department of Trade and Industry (DTI) a. Access Restrictions i. Section 7, RA 9211 Vending Machines, Self-Service Facilities ii. Section 8, RA 9211 Retailer Compliance with Respect to SelfService Facilities
216 MEG (2008). 217 MEG (2008), Item III. 218 MEG (2008), Item VI.1.

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iii. Section 9, RA 9211 Minimum Age Sales iv. Section 10, RA 9211 Sale of Tobacco Products within School Perimeters v. Section 11, RA 9211 Signage vi. Section 12, RA 9211 Proof of Age Verification 2. Department of Health (DOH) a. Healthful Environment i. Section 5, RA 9211 Smoking Ban in Public Places ii. Section 6, RA 9211 Designated Smoking and Non-Smoking Areas b. Advertising and Promotions i. Section 13, RA 9211 Warnings on Cigarette Packages ii. Section 14, RA 9211 Warnings on Advertising iii. Section 15, RA 9211 Restrictions on Advertising iv. Section 16, RA 9211 Restrictions on Print Media Advertising v. Section 17, RA 9211 Restrictions on Outdoor Advertising vi. Section 18, RA 9211 Restrictions on Advertising in Cinemas vii. Section 19, RA 9211 Restrictions on Television and Radio Advertising viii. Section 20, RA 9211 Restrictions on Advertising in Audio, Video, and Computer Cassettes/Disks and Similar Medium ix. Section 21, RA 9211 Restrictions on Advertising on the Internet and Similar Medium x. Section 22, RA 9211 Ban on Advertisements xi. Section 23, RA 9211 Restrictions on Tobacco Promotions xii. Section 24, RA 9211 Naming Rights xiii. Section 25, RA 9211 Restrictions on Sponsorships xiv. Section 26, RA 9211 Ban on Sponsorships xv. Section 27, RA 9211 Restrictions on Sampling These Pilot Agencies have the following functions:219 1. Receive, document and investigate all complaints and written reports of violations of RA 9211 and its IRR 2. Jointly adopt measures for close and mutual coordination in order to effectively prevent and/or address violations of RA 9211 3. Perform such other functions as may be directed by the IACTobacco.

219 MEG (2008), Item IV.2.

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8. What is a criminal action? A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. In every criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.220 RA 9211 provides that in the enforcement of the Act and its IRR, criminal proceedings may be instituted.221 For this purpose, and in order to effectively implement the said law and its IRR, it authorizes mayors, building officials and members of the PNP to institute criminal proceedings against violators of its provisions. 222 However, said list is not exclusive because a complaint may be filed with the prosecutor by any offended party, which refers to any person against whom or against whose property the crime was committed.223 8.1. What is the procedure for institution of criminal action? Criminal actions are instituted thus: 1. For offenses where a preliminary investigation is required, a complaint shall be filed with the proper officer for the purpose of conducting the requisite preliminary investigation. 2. For all other offenses, a complaint or information shall be filed directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters.224 Offenses under RA 9211 do not require preliminary investigation. A preliminary investigation is required only for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. The highest penalty that may be imposed under RA 9211 is three years imprisonment. 225

220 221 222 223 224 225

RULES OF COURT, Rule 133, Sec. 2. IRR of RA 9211 (2004), Title VI, Rule II, Sec. 1 & 2. IRR of RA 9211 (2004), Title VI, Rule II, Sec. 2. Part I, Sec 4, DOJ Manual for Prosecutors. RULES OF COURT, Rule 110, Sec. 1 Rep. Act No. 9211 (2003), Sec. 32 in relation to RULES OF COURT, Rule 112, Sec. 1.

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Thus, for offenses under RA 9211, the criminal action may be instituted by filing the complaint or information directly with the Municipal Trial Courts, Municipal Circuit Trial Courts or Regional Trial Courts (which ever is applicable), or the complaint with the office of the prosecutor. 226 In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters.227 If the complaint is filed with the prosecutor, the prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing. If the complaint or information is filed directly with the Municipal Trial Court, Municipal Circuit Trial Court, or Regional Trial Court, the judge must personally evaluate the evidence, or personally examine in writing and under oath the complainant and his witnesses in the form of searching questions and answers. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause, he shall dismiss said complaint or information. However, he may require the submission of additional evidence within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall dismiss the case within ten (10) days from its submission or expiration of said period. On the other hand, if the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest.228 In both cases, the complainant must ensure compliance with the following requirements: 229 1. The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. 2. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file.
226 If the penalty is only a fine (as in the case of violations of sections 5 and 6 of RA 9211), the amount of the fine determines the jurisdiction. If the amount does not exceed P4,000, the MTCs have jurisdiction (See Admin. Circular No. 09-94). Otherwise, the general jurisdiction of the RTC is applicable (See Sec. 20, Batas Pambansa Blg. 129). 227 RULES OF COURT, Rule 110, Sec. 1. 228 RULES OF COURT, Rule 112, Sec. 9 229 RULES OF COURT, Rule 112, Sec. 9 in relation to Sec. 3(a).

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3. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or in their absence or unavailability, before a notary public; 4. Each of such officials must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. Before the institution of a criminal action, parties may have to first resort to the Katarungang Pambarangay.230 When the parties actually reside in the same city or municipality, they must first try to enter into an amicable settlement before the Lupong Tagapamayapa.231 As regards offenses under RA 9211, this would only apply where the offense committed would merit a penalty of not more than one (1) year or a fine of not more than Five thousand pesos (P5,000.00), such as first and second offenses under Section 5 and 6 of RA 9211 (Smoking Ban in Public Places, and Designated Smoking and NonSmoking Areas, respectively).232 Resort to the Katarungang Pambarangay will not be necessary in the following cases: 1. Where one party is the government or any subdivision or instrumentality thereof; 2. Where one party is a public officer or employee and the dispute relates to the performance of his official functions; 3. Offenses punishable by imprisonment exceeding one (1) year OR a fine exceeding Five thousand pesos (P5,000.00); 4. Offenses where there is no private offended party; 5. Where the dispute involves real properties located in different cities or municipalities unless the parties agree to submit their differences to amicable settlement by an appropriate lupon; 6. Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; 7. Such other classes of disputes which the President may determine in the interest of justice or upon the recommendation of the Secretary of Justice.233
230 231 232 233 Rep. Act No. 7160 (1991), Chapter VII, Sec. 399-422. Rep. Act No. 7160 (1991), Sec. 408. Rep. Act No. 7160 (1991), Sec. 408(c) in relation to Rep. Act No. 9211 (2003), Sec. 32. Rep. Act No. 7160 (1991), Sec. 408.

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Moreover, parties may go directly to court in the following instances: 1. Where the accused is under detention; 2. Where a person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; 3. Where actions are coupled with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente lite; and 4. Where the action may otherwise be barred by the statute of limitations. 234 8.2. What procedures apply for the criminal action? The Revised Rules of Summary Procedure apply in the following cases: 1. Violations of municipal or city ordinances, and 2. In all other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding six months, or a fine not exceeding one thousand pesos (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom, except for offenses involving damage to property through criminal negligence in which case the said rules shall apply only where the imposable fine does not exceed ten thousand pesos (P10,000.00). 235 Applied to RA 9211, the Revised Rules of Summary Procedure shall apply only in case of a first offense under Section 5 and 6 thereof. Under the said rules, jurisdiction is lodged in the lower courts. The proceedings are commenced by complaint or by information, provided that in Metropolitan Manila and in Chartered Cities, such cases shall be commenced only by information, except when the offense cannot be prosecuted de officio. The complaint or information shall be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are accused plus two (2) copies for courts files. This requirement must be complied with within five (5) days from date of filing, otherwise the case may be dismissed. 236

234 Rep. Act No. 7160 (1991), Sec. 412(b). 235 Rev. Rule on Summary Procedure (1991), Sec. 1(B). 236 Rev. Rule on Summary Procedure (1991), Sec. 11.

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If commenced by complaint On the basis of the complaint and the affidavits and other evidence accompanying the same, the court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody. 237 If commenced by information When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph, the court shall issue an order which, together with copies of the affidavits and other evidence submitted by the prosecution, shall require the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence in his behalf, serving copies thereof on the complainant or prosecutor not later than ten (10) days form receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense.238 Should the court, upon a consideration of the complaint or information and the affidavits submitted by both parties, find no cause or ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial.239 The 1997 Rules of Court shall apply in all other cases. The procedure for the institution of a criminal action in such cases shall be as provided in 8.1 above. 8.3. Who can institute a criminal action? Complaints for violation of RA 9211 may be filed by anyone. However, the steps for the institution of the appropriate criminal action will vary, depending on who the complainant is. Three (3) groups of complainants may be identified in this regard, to wit: 1. A city and municipal mayor and building official and members of the Philippine National Police; 240 2. An employee/personnel of an IAC-Tobacco Member Agency/ Organization; 241 and 3. Any other person. 242 The prosecutor with whom a complaint is filed shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing.
236 237 238 239 240 241 242 Rev. Rule on Summary Procedure (1991), Sec. 12(a). Rev. Rule on Summary Procedure (1991), Sec. 12(b). Rev. Rule on Summary Procedure (1991), Sec. 13, par. 1. IRR of RA 9211 (2004), Title VI, Rule II, Sec. 2. IRR of RA 9211 (2004), Title VI, Rule II, Sec. 2. MEG (2008), Item V. MEG (2008), Item V.

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8.4. What are the steps involved, when criminal proceedings are initiated by the City or Municipal Mayor and Building Official and members of the PNP? The IRR of RA 9211 authorizes a City/Municipal Mayor or building official and members of the PNP to directly institute criminal actions against violators of RA 9211. 243 Considering that the maximum duration of imprisonment imposable under RA 9211 is three (3) years, no preliminary investigation is required. 244 The criminal action may be instituted by filing a complaint or information directly with the Municipal Trial Courts, Municipal Circuit Trial Courts and Regional Trial Courts (whichever is applicable), or a complaint with the office of the prosecutor. In Manila and other chartered cities, the complaints shall be filed with the office of the prosecutor, unless otherwise provided in their charters.245 However, in the case of a violation of Section 5 (smoking in absolutely smokefree places) or Section 6 (non-compliance with rules on designated smoking areas) of RA 9211, it is the MTC which has jurisdiction in case of a first offense, and the RTC in case of subsequent offenses.246
Complainant, with assistance of local office of DTI/DOH, files a complaint or information

MTC file information (if in Metro Manila or other chartered cities) : for a first-time violation of sections 5 and 6 of RA 9211 (rules on summary procedure apply) file information or complaint: for violation of other provisions of RA 9211

RTC
RTC (file complaint or information)

Office of Prosecutor file complaint: if in Metro

Manila or other chartered cities for violations of RA 9211, except first time violation of sections 5 and 6.

file complaint or information: for second and subsequent violation of sections 5 and 6 of RA 9211

243 IRR of RA 9211 (2004), Title VI, Rule II, Sec. 2. 244 Rep. Act No. 9211 (2004), Sec. 32; relate to RULES OF COURT, Rule 112, Sec. 1. 245 RULES OF COURT, Rule 110, Sec. 1 246 If the penalty is only a fine (as in the case of sections 5 and 6 of RA 9211), the amount of the fine determines the jurisdiction. If the amount does not exceed P4,000, the MTCs have jurisdiction (See Admin. Circular No. 09-94). Otherwise, the general jurisdiction of the RTC is applicable (See Sec. 20 of Batas Pambansa Blg. 129). Moreover, the MTC also has jurisdiction in case of a first offense of sections 5 and 6 as these will be governed by the Revised Rules on Summary Procedure (See Sec. 1(b)(4)).

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8.5. What are the steps involved, when the crime was discovered by an employee/personnel of an IAC-Tobacco Member-Agency/ Organization? 1. Written Report The employee/personnel of the IAC-Tobacco Member Agency/Organization who personally discovers a violation of RA 9211 and its IRR shall prepare and submit a report concerning the same to his/her agency/organization. The report shall be made within twenty-four (24) hours from the discovery. The report must contain the following: a. Name and designation of the employee/personnel who discovered the violation; b. Date, time, and place of discovery of the alleged violation; c. Brief description of the alleged violation; d. Name of the person(s) who committed the violation, if identified; and e. Other relevant additional information, if any. 247 The discovery of the violation may have been made during a regular and routine inspection which all IAC-Tobacco Member Agencies/Organizations are mandated to conduct, with or without complaint, to monitor compliance with RA 9211 and its IRR.248 2. Forwarding of Report to Local Office of Pilot Agency Concerned The IAC-Tobacco Member Agency/Organization concerned shall forward the written report to the Local Office of the Pilot Agency concerned in the place where the alleged violation was committed. There are two (2) Pilot Agencies, which are designated with their respective areas of administrative responsibility, to wit: 1. Department of Health (DOH), concerned with: a. Health and Environment (Sections 5 & 6, RA 9211); b. Advertising and Promotions (Sections 13-27, RA 9211); and 2. Department of Trade and Industry (DTI), concerned with Access Restrictions (Sections 7-12, RA 9211).249
247 MEG (2008), Item V.1. 248 MEG (2008), Item III.1. 249 MEG (2008), Item IV

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The Local Office of the Pilot Agency refers to the DOH Center for Health Development or the DTI Regional/Provincial Office in the particular locality where the alleged violation committed. It also refers to such other local offices which the Pilot Agencies may designate from within their respective departmental organizations to perform the functions under the MEG of RA 9211. 250 3. Investigation Within ten (10) working days from receipt of the Report, the Local Office of the Pilot Agency shall conduct the appropriate research and investigation for purposes of gathering competent data and information on the alleged violation of RA 9211. 251 Within five (5) working days from the lapse of the 10-working day investigation period, the Local Office of the Pilot Agency shall prepare an Investigation Report. It shall furnish certified true copies thereof to the complainant and the IAC-Tobacco Secretariat. Within fifteen (15) days from receipt thereof, the IACTobacco Secretariat shall disseminate copies of the Investigation Report to the IAC-Tobacco Member Agencies/Organizations. 252 4. Filing of Complaint or Information Where the Investigation Report may involve criminal violation(s) of RA 9211, the Local Office of the Pilot Agency shall render the necessary assistance to the complainant(s) in filing criminal proceedings against the respondent(s) by a sworn affidavit complaint. 253 Considering that the maximum duration of imprisonment imposable under RA 9211 is three (3) years, no preliminary investigation is required.254 The criminal action may be instituted by the filing of a complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or Regional Trial Courts 255 or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters. 256
250 251 252 253 254 255 256 MEG (2008), Item II. MEG (2008), Item VI.1. MEG (2008), Item VI.2. MEG (2008), Item VI.3; IRR of RA 9211 (2004), Title VI, Rule II Rep. Act No. 9211 (2003), Sec. 32; relate to RULES OF COURT, Rule 112, Sec. 1. Supra, footnote 247. RULES OF COURT, Rule 110, Sec. 1.

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IAC-Tobacco employee who discovers violation files a written report

Forward report to: (1) DOH (violation of sections 5, 6, 13-27 of RA 9211) or, (2) DTI (violations for sections 7-12)

DOH/DTI conducts investigation within 10 days

DOH/DTI prepares Investigation Report within 5 days

DOH/DTI provides copies of the Report to complainant and IACTOBACCO Secretariat

IAC-Tobacco Secretariat submits copies to IAC-TOBACCO Member Agencies within 15 days

Complainant, with assistance of local office of DTI/DOH, files a complaint or information

MTC - file information (if in Metro Manila or other chartered cities) : for a first-time violation of sections 5 and 6 of RA 9211 (rules on summary procedure apply) - file information or complaint: for violation of other provisions of RA 9211

RTC RTC (file complaint or information) - file complaint or information: for second and subsequent violation of sections 5 and 6 of RA 9211

Office of Prosecutor - file complaint: if in Metro Manila or other chartered cities for violations of RA 9211, except first time violation of sections 5 and 6.

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8.6. What are the steps involved, when the violation was discovered by a private individual? A private individual who discovers the commission of any violation under RA 9211 may report it to any of the following: 1. 2. 3. 4. 5. City or municipal mayor; City or municipal building official; Any member of the Philippine National Police; Any member of the MMDA (if within Metro Manila); Any official deputized for law enforcement by an LGU (e.g. Green Police of Pasig, MAPSA of Makati, OPSS personnel of Marikina, and other such local officials); 6. Any employee or personnel of any IAC-Tobacco Member Agency/ Organization. The private individual may also choose to file the case directly with the prosecutor. If reported to the city or municipal mayor and building official and any member of the PNP, these officials will conduct the necessary investigation of the premises or persons involved to verify and confirm the commission of the offense. The traditional procedure for investigating crimes shall be followed, and the usual standards of due process and other constitutional and statutory limitations will apply. (See flowchart under Part III A, 8.4 of this manual) If reported to any employee or personnel of any IAC-Tobacco Member Agency/ Organization, the following steps will apply: 257 1. Complaint There are two ways of filing the complaint with the IAC-Tobacco, to wit: 1. It may be filed personally with an IAC-Tobacco Member Agency/ Organization 2. It may be filed with a Pilot Agency via: a. b. c. d. Hotline; Private courier; Registered mail; or Electronic mail/message.

257 MEG (2008), Item V.

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2. Written Report

258

The employee/personnel of the IAC-Tobacco Member Agency/Organization or the Pilot Agency who receives the complaint shall prepare and submit to his/her agency/organization a written report concerning the same. The report shall be made within twenty-four (24) hours from receipt of the complaint. The report must contain the following: a. b. c. d. e. Name, age and contact information of the complainant; Description of the alleged violation; Date and time when the alleged violation occurred; Place where the alleged violation occurred; Name of person(s) who committed the alleged violation, if identified; and f. Other relevant additional information, if any. 3. Forwarding of Report to the Local Office of Pilot Agency Concerned The IAC-Tobacco Member Agency/Organization concerned shall forward the written report to the Local Office of the Pilot Agency concerned, in the place where the alleged violation was committed.259 4. Investigation Within ten (10) working days from receipt of the Report, the Local Office of the Pilot Agency shall conduct the appropriate research and investigation for purposes of gathering competent data and information on the alleged violation of RA 9211. 260 Within five (5) working days from the lapse of the 10-working day investigation period, the Local Office of the Pilot Agency shall prepare an Investigation Report. It shall furnish certified true copies thereof to the complainant and the IAC-Tobacco Secretariat. Within fifteen (15) days from receipt thereof, the IACTobacco Secretariat shall disseminate copies of the Investigation Report to the IAC-Tobacco Member Agencies/Organizations. 261

258 259 260 261

MEG (2008), Items V.2 & V.3. MEG, Item V.4. MEG (2008), Item VI.1. MEG (2008), Item VI.2.

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5. Filing of Complaint or Information Where the Investigation Report may involve criminal violation(s) of RA 9211, the Local Office of the Pilot Agency shall render the necessary assistance to the complainant(s) in filing criminal proceedings against the respondent(s) by a sworn affidavit complaint. 262 Considering that the maximum duration of imprisonment imposable under RA 9211 is three (3) years, no preliminary investigation is required.263 The criminal action may be instituted by the filing of a complaint or information directly with the Municipal Trial Courts, the Municipal Circuit Trial Courts or Regional Trial Court (whichever is applicable),264 or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor, unless otherwise provided in their charters.265 (See flowchart under Part III A, 8.5 of this manual) 9. What civil remedies are available against violators of RA 9211? RA 9211 allows the initiation of civil actions and the availment of civil remedies by private parties in connection with the tobacco industry or any provision of RA 9211. A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.266 In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence.267 RA 9211 allows the institution of any kind of legal action (including civil actions) in connection with the tobacco industry, in which case, it will be governed by the provisions of the Philippine Civil Code and other applicable laws.268 More particularly, the IRR provides that any legal action in connection with the tobacco industry that does not pertain to the violation of any provision of RA 9211 and its IRR, shall be governed by the provisions of the Philippine Civil Code, and other applicable laws.269

262 263 264 265 266 267 268 269

MEG (2008), Item VI.3; relate to IRR of RA 9211 (2004), Title VI, Rule II. Rep. Act No. 9211 (2003), Sec. 32; RULES OF COURT, Rule 112, Sec. 1. Supra, footnote 247. RULES OF COURT, Rule 110, Sec. 1. RULES OF COURT, Rule I, Sec. 3(a). RULES OF COURT, Rule 133, Sec. 1. Rep. Act No. 9211 (2003), Sec. 28. IRR of RA 9211 (2004), Title V, Rule I, Sec. 1.

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10. What administrative remedies are available against violators of RA 9211? RA 9211 allows the resort to administrative remedies, in the implementation or enforcement of its provisions, particularly with the Department of Health. Other administrative agencies may provide alternative venues, such as the DTI or the Environmental Public Works Management (based on the Consumer Protection Act and Trade and Industry Laws,270 and the Clean Air Act,271 respectively). Just recently, the Civil Service Commission issued Memorandum Circular No. 17 Series of 2009. The said circular deals with smoking in all equipment government offices and is based on a 100% smoke free environment policy. Violations of the said circular are considered grounds for disciplinary action. 272 In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 273 RA 9211 allows the institution of any kind of legal action (including administrative remedies) in connection with the tobacco industry, in which case, it will be governed by the provisions of the Philippine Civil Code and other applicable laws. 274 More particularly, the IRR provides that any legal action in connection with the tobacco industry that does not pertain to the violation of any provision of RA 9211 and its IRR, shall be governed by the provisions of the Philippine Civil Code, and other applicable laws. 275

270 271 272 273 274 275

See Rep. Act No. 7394 (1992), Exec. Order No. 133 and DTI Department Administrative Order No. 7. See Rep. Act No. 8749 (1999), Chapter V, Secs. 40-44. See CSC Memo Circular No. 17, Series of 2009. RULES OF COURT, Rule 133, Sec. 5. Rep. Act No. 9211 (2003), Sec. 28. IRR of RA 9211 (2003), Title V, Rule I, Sec. 1.

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B. IMPLEMENTATION AT THE LOCAL LEVEL 1. INTRODUCTION The national law on tobacco control, RA 9211 and its IRR, provides enough basis for local governments to act. However, most local officials find it necessary that an ordinance providing details addressing local concerns be first passed. However, it is pointed out that there is no need for an ordinance to implement a national law, because a national law is applicable throughout the whole breadth and length of the state.276 Where there is both an ordinance and a law, like in the case of smoking, both find application and must both be implemented in the local government unit.277 It would be absurd to think that a law cannot be implemented in a local government unit because an ordinance was not enacted. A municipal corporation can enact legislation that is more restrictive, because it deems them more injurious in their localities than the state.278 This is to better serve the needs of the population, under the general welfare clause of the Local Government Code. The enlargement upon the provision of a statute of the state, as by the imposition of additional penalties, does not result in inconsistency.279 Furthermore, there may be questions on whether those ordinances which have been passed earlier than RA 9211 have already been repealed by the latter. Indeed, a later law repeals an earlier law on the same subject, either expressly by providing for a repealing clause, or impliedly when the two are so inconsistent such that they cannot stand together. RA 9211 contains a general repealing clause. Nevertheless, existing ordinances on tobacco control should still be implemented, if it is not inconsistent with RA 9211. Hence, a violator may be charged under either the local ordinance or RA 9211 in cases where both are applicable. If an act is covered by an ordinance alone or RA 9211 alone, then such law will apply. Moreover, each local government has developed its own system for implementing laws, including RA 9211 and tobacco-related ordinances. This has evolved through time and practice, and finds their legal basis either in the respective tobacco ordinances of the LGUs or other ordinances passed in earlier years or even national laws. Given the variety of methodologies and systems among the various LGUs in the Metropolitan Manila, a discussion of the implementation mechanisms that have been adopted and exercised in each city shall be necessary.
276 US v. Joson, 26 Phil. 1 (1913). 277 Under Sections 389(b)(1), 444(2) & 465(2) of Rep. Act 7160, the Chief Executive of a local government unit (barangay chairman, mayor and governor) is mandated to enforce all laws and ordinances within the jurisdiction of the local government unit. 278 US v. Joson, 26 Phil. 1 (1913). 279 People v. Chong Hong, G.R. No. L-45363 ,June 13, 1938.

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2. MAKATI CITY 2.1. Profile of Implementation in Makati City Makati City has the best record with respect to the implementation of tobacco-related measures. Indeed, its success in the enforcement of its tobacco ordinance has caught the attention of the national as well as the international audience, and has marked the city as a model for other communities to emulate. Several factors contributed to their success, particularly the following: 1. Strong political will of its leader/chief executive, Mayor Jejomar Binay; 2. Relatively clear and existing system of enforcement, to which the requirements and prohibitions of its tobacco ordinance have been integrated; 3. Proactive and close mutual coordination among the relevant government agencies; 4. Resources of the City; 5. High level of publicity and media coverage; and 6. Robust public support and awareness. The IRR of its ordinance created the Makati Anti-Smoking Task Force, to implement City Ordinance No. 2002-090 and monitor its strict enforcement. The Task Force includes representatives of the City Health Department, the Engineering Department/City Building Official, the Treasury Department, the Information and Community Relations Department, the Makati Police Department, and other concerned agencies from the local government and the private sector.280 The Task Force is being coordinated by the City Health Department. All department members regularly submit updates and reports to the City Health Department. The Task Force, as a whole, is required to submit a Progress Report on the enforcement of the ordinance to the Office of the Mayor and the City Council every six (6) months.281 The Makati Anti-Smoking Task Force has the following powers and functions:

280 IRR of Makati City Ordinance No. 2002-090, Rule VI, Sec. 1. 281 IRR of Makati City Ordinance No. 2002-090, Rule VI, Sec. 1.

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1. To conduct anti-smoking campaigns and programs and deputize local enforcers who shall apprehend violators of the anti-smoking ordinance together with or aside from the police, MAPSA, city health and building official personnel. 2. To authorize barangay officials to form their own anti-smoking task forces, whose members shall be duly deputized by the Task Force to apprehend violators and collect corresponding fines within the territorial jurisdiction of their respective barangays. 3. To conduct special operations to apprehend violators through a composite team composed of its deputies and members of the Makati Police and MAPSA personnel. 4. To establish links with transport-based organizations, such as MJODAP and FEJODAP, to promote awareness of the ordinance among drivers of public conveyances and ensure their full cooperation. 5. To closely coordinate with the management of business, commercial, and entertainment establishments in the city to effectively monitor their strict compliance with the ordinance. 6. To conduct random, unannounced ocular inspections on concerned establishments and impose corresponding penalties on those found to be in violation of the ordinance. 7. To establish a computerized database, through the City Treasurys Miscellaneous Division, that would facilitate the monitoring and recording of violations, to ensure the imposition of sanctions appropriate to the frequency of violations. 282 Makati City has in place a system of enforcement, including a ticketing system. Its various agencies coordinate with each other closely in carrying out their tasks. The requirements of RA 9211 and its tobacco ordinance were simply integrated into this existing scheme in Makati City, resulting in little to no disruption in their work and ease in implementation. Thus, tobacco control standards and requirements are simultaneously included as the City Health Department conducts its annual sanitation standard check among establishments with its Sanitation Inspectors. The City Engineering Department/Building Official also conducts annual monitoring of the mechanical/ventilation compliance of establishments, particularly those which have designated smoking areas. These departments usually conduct the inspections together as a team. On the other hand, the Makati Police Department, Makati Public Safety Officials and local deputies (Bantay Bayan) conduct constant surveillance of
282 IRR of Makati City Ordinance No. 2002-090, Rule VI, Sec. 2.

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the streets, public areas, and commercial establishments. Mall securities are likewise asked to coordinate in the enforcement of the ordinance. Since the implementation of the ordinance in 2003, no violation has merited a court case yet. Nevertheless, more than two hundred (200) establishments have been given warnings due to non-compliance; these establishments have subsequently complied. Thus far, nine (9) establishments have been subject to Closure Order. As regards individuals, a total of one hundred seventy-two (172) have been fined. 2.2. What are the steps in proceeding against individuals who violate the tobacco ordinance in Makati? The steps involved in proceeding against individual offenders are as follows: 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. Any member, employee or personnel of any of the component agencies of the Makati Anti-Smoking Task Force, such as the City Health Department or the City Engineering Department/City Building Official, b. Any member of the Philippine National Police stationed in Makati City or the Makati Police Station, c. Any member of the Makati Public Safety Department (formerly MAPSA) d. Other duly deputized local enforcers, including members of Bantay Bayan. 3. The proper local law enforcer shall apprehend the violator. This refers to the latter three of those enumerated above, i.e. a. Any member of the Philippine National Police stationed in Makati City or the Makati Police Station, b. Any member of the Makati Public Safety Department (formerly MAPSA) c. Other duly deputized local enforcers, including members of Bantay Bayan. 4. The proper law enforcer shall issue an Ordinance Violation Receipt or citation ticket, and shall instruct the offender to pay the fine, either immediately or at the City Treasurers Office within a given period of time. 5. Payment of fine a. If the violator does not contest the violation and is willing to pay

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the fine, he may voluntarily pay the fine. This will allow him to avoid criminal prosecution, particularly if done prior to the institution of a criminal action. b. If the violator does not pay the fine, the law enforcer shall institute the proper criminal action. The violator in this case either contests the violation and refuses to pay the fine, or simply fails to pay the fine for any other reason. 6. The fees collected by the enforcers shall be remitted on a daily basis to the City Treasury through the Miscellaneous Division. On the other hand, fees collected by task force deputies based in barangays shall be remitted on a daily basis to the corresponding Barangay Treasury.283 2.3. What are the steps in proceeding against establishments which violate or fail to comply with the tobacco ordinance in Makati City? The steps involved in proceeding against offending establishments are as follows: 1. Discovery of the commission of a violation; 2. Any concerned citizen may report the violation to: a. Any member, employee or personnel of any of the component agencies of the Makati Anti-Smoking Task Force, such as: i. The City Health Department or ii. The City Engineering Department/City Building Official, b. Any member of the Philippine National Police stationed in Makati City or the Makati Police Station, c. Any member of the Makati Public Safety Department (formerly MAPSA), d. Other duly deputized local enforcers, including members of Bantay Bayan. 3. The proper law enforcers shall inspect the premises of the reported establishment, for purposes of verifying the commission of the offense. This is usually a team, composed of personnel and members of the Anti-Smoking Task Force, including inspectors from the City Health Department and the City Engineering Department/City Building Official, the police and/or MAPSA members or local deputies.
283 IRR of Ordinance No. 2002-090, Rule V, Section 3 & 4.

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4. If found to be non-compliant or to have committed a violation, the Makati Health Department shall recommend the immediate closure of the erring establishment to the City Administrators Office. At the same time, the inspector shall issue a warning letter, a request for payment of the fine, and a request for compliance to the erring establishment. 5. The City Administrators Office shall issue a Closure Order against the erring establishment. 6. The establishment shall pay the fine. 7. The establishment has two possible courses of action. It may either: a. Continue to violate the ordinance or to take no action. In case of continued non-compliance or inaction, the Closure Order shall be executed and the establishment shall be closed; or b. Submit a written request for re-inspection of the premises, and pay the re-inspection fee. 8. If the establishment follows Step 7(b), the proper law enforcers shall re-inspect the premises of the requesting establishment. Upon reinspection, the inspector may find that the establishment either: a. Continues to violate the ordinance. In case of continued non-compliance, the Closure Order shall be executed and the establishment shall be closed. b. Complies with the ordinance. If found to be compliant, the establishment shall secure an endorsement from the Makati Health Department for the lifting of the Closure Order. 9. In case Step 8(b) applies, the endorsement of the Makati Health Department shall be forwarded to the City Administrators Office for final approval. 10. Upon final approval of the City Administrators Office, the Closure Order shall be lifted and the establishment may continue to operate.

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2.4. Enforcement Flowchart

INDIVIDUALS

Violation

- smoking in public places declared as absolutely smokefree areas - smoking in non-smoking area of other public places - smoking in public conveyances - failure to post no smoking sign in vehicle

Penalties 1st offense: P1,000.00 fine 2nd offense: P2,000.00 fine 3rd offense: P3,000.00 fine or imprisonment for not less than three (3) days but not more than six (6) days or both at the discretion of the court

ESTABLISHMENTS - toleration of smoking in absolutely smoke-free areas - toleration of smoking in non-smoking areas - toleration of smoking in public conveyances - non-compliance with specifications in the designation of smoking and non-smoking areas - operation of designated smoking areas without prior approval or clearance from the City Engineering and City Health Departments - provision of ashtrays within the establishment in violation of Rule III, Section 2 of IRR - operation of defective/inadequate facilities and equipment in designated smoking areas - non-compliance with specifications and requirements on signages in proper areas and in public conveyances

Report violation to: - Makati Police Station - Makati Public Safety Dept. (formerly MAPSA) - DOH local office or hotline

Issuance of Ordinance Violation Receipt

Penalties 1st offense: P1,000.00 fine 2nd offense: P2,000.00 fine 3rd offense: P3,000.00 fine or imprisonment for not less than three (3) days but not more than six (6) days or both at the discretion of the court

Payment of fine

File complaint with prosecutor

Report violation to: - Makati Police Station - Makati Public Safety Dept. (formerly MAPSA) - Makati Health Dept. - Makati Engineering Dept. - DOH local office or hotline

Verification and inspection of premises

Issuance of Closure Order by the City Administrators Office

Establishment submits a written request for re-inspection of the premises + payment of re-inspection fee

Execution of Closure Order, in case of continued noncompliance In case of continued non-compliance, Closure Order shall be executed

If found compliant, establishment shall secure an endorsement from the Makati Health Dept. for the lifting of the Closure Order

Lifting of Closure Order, upon final approval of the City Administrators Office

Endorsement of the Makati Health Dept shall be forwarded to the City Administrators Office for final approval

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3. MANDALUYONG CITY 3.1. Profile of Implementation in Mandaluyong City Mandaluyong has a tobacco ordinance as well as an IRR whose provisions equal or even exceed the standards of the best tobacco control ordinances in Metro Manila. Its ordinance is almost a carbon copy of Makati City Ordinance No. 2002-090. Now, Mandaluyong is vigilant in implementing RA 9211 and its own anti-smoking ordinance. Mayor Benjamin Abalos is at the forefront of mayors in Metro Manila who is pushing for the implementation and enforcement of the law. Presently, it is the Mandaluyong Health Department which conducts activities in relation to tobacco control and regulation. The city now focuses its efforts on raising awareness on the health effects and hazards of smoking, in the hope of rousing private initiatives towards a 100% smoke-free policy in establishments therein. What is included in this manual in the succeeding pages, is the recommended method of implementation as provided in their ordinance and its implementing rules. The IRR of the Mandaluyong ordinance created the Mandaluyong AntiSmoking Task Force, to implement City Ordinance No. 347-2005 and monitor its strict enforcement. The Task Force includes representatives of the City Health Department (MHD), the Engineering Department/City Building Official, the Treasury Department, the Public Information Office (PIO), the Mandaluyong Police Department (MPD), and other concerned agencies from the local government and the private sector. 284 The Task Force is required to submit a Progress Report on the enforcement of the ordinance to the Office of the Mayor and the City Council every six (6) months. 285 The powers and functions of the Mandaluyong Anti-Smoking Task Force includes the following: 1. To conduct anti-smoking campaigns and programs and deputize enforcers who shall apprehend violators of the anti-smoking ordinance together with or aside from the police, Public Order and
284 IRR of Mandaluyong Ordinance No. 347, S-2005, Rule VI, Sec. 1. 285 IRR of Mandaluyong Ordinance No. 347, S-2005, Rule VI, Sec. 1.

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Safety (POS), city health and building official personnel. 2. To authorize Barangay Officials to form their own anti-smoking task force, whose members shall be duly deputized by the Task Force to apprehend violators and collect corresponding fines within the territorial jurisdiction of their respective Barangays. 3. To conduct special operations to apprehend violators through a composite team composed of its deputies and members of the Mandaluyong Police and Public Order and Safety (POS) personnel. 4. To establish links with transport-based organizations, such as the MJODAP and FEJODAP, to promote awareness of the Ordinance among drivers of public conveyances and ensure their full cooperation. 5. To closely coordinate with the management of business, commercial, and entertainment establishments in the city to effectively monitor their strict compliance with the ordinance. 6. To conduct random, unannounced ocular inspections on concerned establishments and impose corresponding penalties on those found to be in violation of the Ordinance. 7. To establish a computerized database, through the City Treasurys Miscellaneous Division, that would facilitate the monitoring and recording of violations, to ensure the imposition of sanctions appropriate to the frequency of violations. At present, the City Health Department coordinates all information and promotion campaigns on tobacco control through its health workers and sanitation inspectors. Its sanitation inspectors conduct annual sanitation standard checks among establishments. Moreover, the City Health Department collaborates with non-government organizations such as FCAP to help it in its pursuit of a 100% smoke-free policy in establishments within its jurisdiction. On the other hand, the City Engineering Department/Building Official likewise conducts annual monitoring and inspection of the mechanical/ventilation compliance of establishments which have designated smoking areas. Since the enactment of the ordinance, no violation has merited a court case yet. The previous Task Force Secretariat had records and files of violations and penalties. Survey interviews conducted in public areas report that violators in public conveyances are indeed apprehended and fines collected. 3.2. What are the steps in proceeding against individuals who violate the tobacco ordinance in Mandaluyong City? 1. Discovery of the commission of a violation

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2. Any concerned citizen may report the violation to: a. Any member, employee or personnel of any of the component agencies of the Mandaluyong Anti-Smoking Task Force, such as the City Health Department or the City Engineering Department/City Building Official (this is not available at present, because the said Task Force is currently defunct), b. Mandaluyong Health Department c. Any member of the Philippine National Police stationed in Mandaluyong, or the Mandaluyong Police Department, d. Any Mandaluyong Public Order and Safety (POS) personnel, e. Other duly deputized local enforcers. 7. The proper local law enforcer shall apprehend the violator. This refers to the latter three of those enumerated above, i.e. a. Any member of the Philippine National Police stationed in Mandaluyong or the Mandaluyong Police Department, b. Any member or personnel of the Mandaluyong Public Order and Safety (POS) Department, c. Other duly deputized local enforcers. 3. The proper law enforcer shall issue an Ordinance Violation Receipt or citation ticket, indicating the fine imposed. He shall instruct the offender to pay the fine at the City Treasurers Office within a given period. 4. Payment of fine a. If the violator does not contest the violation and is willing to pay the fine, he may voluntarily pay the fine to the City Treasurer. This will allow him to avoid criminal prosecution, particularly if done prior to the institution of a criminal action, and the process ends. b. If the violator does not pay the fine, the law enforcer shall institute the proper criminal action. The violator in this case either contests the violation and refuses to pay the fine, or simply fails to pay the fine for any other reason. 5. Fees collected by enforcers shall be remitted on a daily basis to the City Treasury through the Miscellaneous Division. Fees collected by task force deputies based in Barangays shall be remitted on a daily basis to the corresponding Barangay Treasury.

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3.2. What are the steps in proceeding against establishments who violate the tobacco ordinance in Mandaluyong City? 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. Any member, employee or personnel of any of the component agencies of the Mandaluyong Anti-Smoking Task Force, such as the City Health Department or the City Engineering Department/City Building Official (this is not available at present, because the said Task Force is currently defunct), b. Mandaluyong Health Department c. Mandaluyong Engineering Department d. Any member of the Philippine National Police stationed in Mandaluyong, or the Mandaluyong Police Department, e. Any Mandaluyong Public Order and Safety (POS) personnel f. Other duly deputized local enforcers. 3. The proper law enforcers shall inspect the premises of the reported establishment, for purposes of verifying the commission of the offense. 4. If found to be non-compliant or to have committed a violation, the Mandaluyong Health Department shall recommend the immediate closure of the erring establishment to the City Administrators Office. At the same time, the inspector shall issue a warning letter, together with a request for payment of the fine and a request for compliance, to the erring establishment. 5. The City Administrators Office shall issue a Closure Order against the erring establishment. 6. The establishment shall pay the fine. 7. The establishment has two possible courses of action. It may either: a. Continue to violate the ordinance or to take no action. In case of continued non-compliance or inaction, the Closure Order shall be executed and the establishment shall be closed; or b. Submit a written request for re-inspection of the premises, and pay the re-inspection fee. 8. If the establishment follows Step 7(b), the proper law enforcers shall re-inspect the premises of the requesting establishment.

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Upon re-inspection, the establishment either: a. Continues to violate the ordinance. In case of continued noncompliance, the Closure Order shall be executed and the establishment shall be closed. b. Complies with the ordinance. If found compliant, the establishment shall secure an endorsement from the Mandaluyong Health Department for the lifting of the Closure Order. 9. In case Step 8(b) applies, the endorsement of the Mandaluyong Health Department shall be forwarded to the City Administrators Office for final approval. 10. Upon final approval of the City Administrators Office, the Closure Order shall be lifted, and the establishment may continue to operate.

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3.4. Enforcement Flowchart

INDIVIDUALS Penalties 1st offense: P1,000.00 fine 2nd offense: P2,000.00 fine 3rd offense: P3,000.00 fine or imprisonment of 3 days but not more than 6 days or both at the discretion of the court

Violation

- smoking in public place declared as absolutely smokefree - smoking in non-smoking area of other public places - smoking in public conveyances - failure to post no smoking sign in vehicle

Report violation to: - Mandaluyong Police Dept. - Mandaluyong Public Order and Safety personnel (POS) - Mandaluyong Health Dept - DOH local office or hotline

ESTABLISHMENTS - toleration of smoking in absolutely smoke-free areas - toleration of smoking in non-smoking areas or despite being classified as a smoke-free establishment by the City Health Department - toleration of smoking in public conveyances - non-compliance with specifications for designated smoking areas - operation of designated smoking areas without prior approval or clearance from the City Engineering and City Health Departments - provision of ashtrays within the establishment in violation of Rule III, Section 2 hereof - operation of defective/inadequate facilities and equipment in designated smoking areas - non-compliance with specifications and requirements on signages in proper areas and public conveyances - non-provision of no-smoking signages as prescribed in the Ordinance Penalties 1st offense: P1,000.00 fine 2nd offense: P2,000.00 fine 3rd offense: P3,000.00 fine or imprisonment for not less than 3 days but not more than 6 days or both at the discretion of the court *The City Government may order the closure of a public place that violates this ordinance

Issuance of Ordinance Violation Receipt

Payment of fine

File complaint with prosecutor

Report violation to: - Mandaluyong Police Dept. - Mandaluyong Public Order and Safety personnel (POS) - Mandaluyong Health Dept - Mandaluyong Engineering Dept. - DOH local office or hotline

Verification and inspection of premises

Mandaluyong Health Dept. shall recommend the immediate closure of the erring establishment to the City Administrators Office Inspector shall issue a warning letter and request for compliance to the erring establishment

Issuance of Closure Order by the City Administrators Office

Establishment submits a written request for reinspection of the premises + payment of re-inspection fee Endorsement of the Mandaluyong Health Dept shall be forwarded to the City Administrators Office for final approval

Execution of Closure Order, in case of continued noncompliance

Lifting of Closure Order, upon final approval of the City Administrators Office

If found compliant, establishment shall secure an endorsement from the Mandaluyong Health Dept for the lifting of the Closure Order

In case of continued non-compliance, Closure Order shall be executed

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4. MANILA CITY 4.1. Profile of Implementation in Manila City Manila has had a tobacco ordinance since 1969, which regulated smoking in public places. Subsequent amendments and additions to the said ordinance aims to curb smoking among minors and the youth. The recent thrust of the Manila City government however, is to enforce RA 9211, the national law on tobacco regulation, in contrast to other local governments in Metro Manila. This is a welcome development, as the law is broader in scope as regards the regulation of smoking in public places than most local ordinances. Moreover, it addresses other aspects of tobacco control which such ordinances may have overlooked, such as advertisements, promotions and sponsorships. This can bee seen in the recent issuances of its local government. For instance, City Council Resolution No. 89, issued on August 2, 2007 urges the mayor to dismantle billboards, leaflets, posters and similar outdoor advertising materials containing tobacco advertisements, except inside the premises of point-of-sale retail establishments, in implementation of RA 9211. Executive Order (EO) No. 36, series of 2007, issued last December 14, 2007, created the Manila AntiSmoking Task Force for purposes of enabling the strict implementation of RA 9211. These demonstrate Manilas support for national anti-smoking initiatives. The Manila Anti-Smoking Task Force is an inter-agency task force, specifically tasked to take necessary steps for the strict implementation of RA 9211. According to the EO, the City Mayor shall be its Honorary Chairperson; the Chief of Staff, the Chairperson; and the City Administrator, the Co-Chairperson. Its members include: the City Legal Officer; the City Engineers/Building Official; the City Health Officer; Chief of the Business Promotion & Development Office; City Information Officer; Commander, District Special Project Unit (DSPU), Manila Police District; and the City Tourism Director .286 Each member carries out his respective role based on the basic mandate of his department and/or office. They closely coordinate with each other in performing their functions as part of the Anti-Smoking Task Force. They hold regular monthly meetings to discuss and plan activities as a group. The meetings also serve as a venue for evaluating the accomplishments of each member. More specifically, the task force was given the following duties and responsibilities:

286 Exec. Order No. 36, Sec. 2.

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1. Monitor the strict compliance and implementation of RA 9211 and its IRR specifically pertaining to smoking ban, access restrictions, pointof-sale establishments, and cinema and outdoor advertising; 2. Take necessary steps, such as the institution of criminal proceedings against violators of the provisions of RA 9211 and its IRR as well as to cause the closure of non-compliant cinema and removal of outdoor advertising, and tobacco-related self-service facilities as the case may be; 3. Coordinate with the City Engineers Office/Office of the City Building Official for the purpose of determining if the designated smoking area is in conformity with the provisions of PD1096 and the Society of Mechanical Engineers Code as mandated by Title II, Rule I of the IRR of RA 9211; 4. After determining with the City Engineers Office/Office of the City Building Official that the designated smoking area is in conformity with PD1096 and the Society of Mechanical Engineers Code, to issue a Certificate of Conformity in favor of owner, proprietor, operator, manager, or administrator of the subject establishment and recommend to the City Mayor through the Business Promotions and Development Office the closure of the establishment(s) which violates the provision(s) of RA 9211 and its IRR and other related laws and ordinances; 5. Submit a Monthly Report to the City Mayor pertaining to its duties and accomplishments; 6. Perform such other duties and functions as may be directed by the City Mayor or its duly authorized representative in connection with RA 9211 and its IRR, and other related laws and ordinances.287 The EO also provides for the Secretariat of the Task Force. The Secretariat shall be headed by the Manila Health Department, and will have a Support Staff composed of the Assistant City Legal Officer or Representative, the Assistant City Engineer or Representative, the Business Promotions and Development Office Representative, and a DSPU Representative.288 The Secretariat coordinates all information and activities among the members of the Task Force. It makes sure that all relevant information are circulated among its members, keeps relevant records, minutes of meetings, and other related tasks.
287 Exec. Order No. 36, Sec. 1. 288 Exec. Order No. 36, Sec. 2.

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The Task Force has just commenced its functions. According to its members, they have printed no smoking signs and posted them in the City Hall corridors; are continuing to post no smoking signs in schools, public buildings, and public areas including sari-sari stores; have taken down tobacco advertisement billboards along highways, major thoroughfares, as well as sari-sari stores as provided by RA 9211; cancellation of permits issued to tobacco companies for the putting up of signboard ads in the city; banned all cigarette vendors inside the City Hall; more stringent measures in the designation of smoking areas in establishments, which are carried out under the supervision of sanitary inspectors and building officials; undertaken inspections of commercial establishments in the city, which are required to comply with the standards specified in RA 9211 as a condition for the issuance of permits; smoke ban in malls, except in cafes with designated smoking areas; required all establishments to make their own signages. Minors are also strictly prohibited from smoking and establishments are likewise prohibited from selling cigarettes and other paraphernalia to minors. What will be discussed in the following pages is an integration of adopted methods of enforcement and recommendations based on existing ordinances in Manila and related laws. 4.2. What are the steps in proceeding against individuals who violate the tobacco ordinance in Manila City? 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. Any member, employee or personnel of any of the component agencies of the Manila Anti-Smoking Task Force, such as the City Health Department or the City Engineers Office/City Building Official. b. Any member of the Philippine National Police stationed in Manila, or the Manila Police District, 3. The proper law enforcer shall apprehend the violator. In Manila, this refers to any member of the Philippine National Police, or the Manila Police District. 4. The law enforcer shall proceed with the normal process in recording and investigating crimes. The law enforcer shall bring the offender to the nearest police station or to a prosecutor. 5. The law enforcer shall institute the proper criminal action.

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4.3. What are the steps in proceeding against establishments which violate or fail to comply with the tobacco ordinance in Manila City? 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. Any member, employee or personnel of any of the component agencies of the Manila Anti-Smoking Task Force, such as the City Health Department or the City Engineers Office/City Building Official. b. Any member of the Philippine National Police stationed in Manila, or the Manila Police District, 3. The proper law enforcers shall inspect the premises of the reported establishment, for purposes of verifying the commission of the offense. This will be composed of the inspectors of the proper government agencies, including the City Health Department and the City Engineers Office/City Building Official, together with members of the Philippine National Police. 4. If found to be non-compliant or to have committed a violation, the inspector shall issue a warning letter together with a request for compliance within a certain period to the erring establishment. 5. Upon expiration of the given period, the proper law enforcers shall re-inspect the establishment. Upon re-inspection, the inspector may find that the establishment either: a. Complies with the ordinance. If found to be compliant, the process ends and the establishment may continue to operate. b. Continues to violate the ordinance. In case of continued noncompliance, the inspector shall issue a second warning letter together with a request for compliance within a discretionary period to the erring establishment. 6. Upon expiration of the given period, the proper law enforcers shall re-inspect the establishment. Following this third re-inspection, the inspector may find that the establishment either: a. Complies with the ordinance. If found to be compliant, the process ends, and the establishment may continue to operate. b. Continues to violate the ordinance. In case of continued noncompliance, i. The inspector shall require the establishment to pay the fine or serve other penalty provided in RA 9211 or the proper ordinance, such as the closure of the establishment or the

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revocation of its business license or permit to operate. ii. The proper law enforcer shall institute the proper criminal action against the establishment, by filing a complaint with the prosecutor, or a complaint or information with the proper court. If convicted, the owner, manager or operator of the establishment shall be required to pay a fine, or serve time in prison, or serve other penalties that may be provided in RA 9211 or the proper ordinance. 4.4. Enforcement Flowchart
Violation

INDIVIDUALS

ESTABLISHMENTS

- MINORS smoking at any time (even if accompanied by any person not a minor) - ANY PERSON selling or conveying any cigarette or cigarette paraphernalia to any minor - ANY PERSON smoking in prohibited places: (1) bars, restaurants, and other enclosed public eating places; (2) dancehalls, nightclubs and restaurants; (3) factories, plants and retail stores; (4) public theaters and motion picture houses; (5) places for storage or carriers of inflammable and explosive materials; (6) inside elevators; (7) passenger buses, jeepneys, and other public convenience; (8) inside bazaars, department stores, markets, bookstores, warehouses and the like; (9) inside classroom and within the premises of all schools, (for collegiate and higher levels, the prohibition shall apply only to classrooms and other enclosed rooms); (10) inside all hospitals and clinics; (4) inside all enclosed public places where more than 2 persons congregate

- any establishment selling or conveying any cigarette or cigarette paraphernalia to any minor - restaurants and similar establishments allowing minors to stay or loiter at designated smoking areas - restaurants and similar establishments not posting the required signage (Children below 18 years old are not allwed to loiter , stay or be seated at designted smoking areas) - establishments whose designated smoking areas do not comply with the law

Penalties - MINORS Community service and P500 fine for subsequent violations - SELLING TO MINORS Fine of P200 (first offense), P500 (second offense) and P1000 or 6 months imprisonment or both (for third offense) - SMOKING IN PROHIBITED PLACES P300 fine or 2 days imprisonment

Penalties - SELLING TO MINORS Fine of P200 (first offense), P500 (second offense) and P1000 or 6months imprisonment or both (for third offense) - ALLOWING MINORS TO LOITER, NON POSTING OF SIGN Fine of P5,000 or 60 days imprisonment for first offense, revocation of permit for repeat violations

Report to: - Any PNP-Manila officer

Report to: - Any PNP-Manila officer - City Engineers office, to determine if smoking areas are in conformity with the law

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5. MARIKINA CITY 5.1. Profile of Implementation in Marikina City Marikina is in the difficult situation of having a tobacco company within in its territorial jurisdiction, which additionally happens to be its biggest taxpayer. Despite this quandary, Marikina has made considerable efforts to promote the health and general well-being of its inhabitants, particularly that of minors, garnering its classification as a Healthy City by the World Health Organization. It is also a member of the Alliance for Healthy Cities, an international network of cities and other organizations who seek to protect and enhance the health of city dwellers. 289 Marikina has two ordinances relating to tobacco, both concerning minors. One prohibits the selling of cigarettes and other tobacco products and paraphernalia to minors, and the other prohibits minors from smoking cigarettes and other tobacco products. A resolution seeking to regulate smoking in public places was passed in 1994, which adopted an MMA (now MMDA) ordinance concerning smoking. Finally, Marikina has just recently passed the Marikina Peace and Order Code of 2006, which compiles in one document all local legislations pertaining to peace, order, public safety and security. It also covers their penalties, implementing agencies and their respective powers and functions, guidelines on the implementation of the code, alternative penalties and penalties for minors, and penalty sharing. Marikina has no centralized anti-smoking task force. Instead, the aforementioned tobacco ordinances expressly provide for the agencies responsible for their implementation. The ordinances identify the City Health Office as the agency in charge of monitoring compliance therewith.290 On the other hand, the Office of Public Safety and Security, School Directors and Offices in Marikina City, Barangay officials, Kagawad, and Tanods of the Barangay, shall be in charge of strictly enforcing the ordinance prohibiting minors from smoking;291 whereas the Business Permit and Licensing Office and the Office of Public Safety and Security shall strictly enforce the ordinance prohibiting the sale, transfer and/or conveyance of cigarettes and cigarette paraphernalia to minors. 292

289 See Marikina City Ordinance No. 105, Series of 2007. 290 Marikina City Ordinance No. 200, Series of 2001, Sec. 6; Marikina City Ordinance No. 201, Series of 2001, Sec. 6. 291 Marikina City Ordinance No. 201, Series of 2001, Sec. 6.

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The OPSS has a City Ordinance Task Force which enforces all ordinances of Marikina. It apprehends violators who are issued tickets and brought to the City Hall to pay the fine. It is highly recommended that this system and/or perhaps this agency be the primary implementing agency of the tobacco control ordinance and the Tobacco Regulation Act. It is also suggested that the city develop a regular system for updating its law enforcers on the laws and ordinances which should be implemented by them. 5.2. What are the steps in proceeding against individuals who violate the tobacco ordinance in Marikina City? 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. Any member or employee of the City Health Office, b. School Directors and Offices in Marikina City, c. Any member of the Philippine National Police stationed in Marikina, or the Marikina Police Department, d. Any member of the Office of Public Safety and Security (OPSS), particularly the OPSS City Ordinance Task Force e. Barangay Officials, Kagawad, Tanods of Barangays f. Any member of Bantay Bayan 3. The proper law enforcer shall apprehend the violator. The proper law enforcer for this purpose refers to the last four in the above enumeration, namely: a. Any member of the Philippine National Police stationed in Marikina, or the Marikina Police Department, b. Any member of the Office of Public Safety and Security (OPSS), particularly the OPSS City Ordinance Task Force, c. Barangay Officials, Kagawad, Tanods of Barangays, d. Any member of Bantay Bayan. 4. The law enforcer shall issue an Ordinance Violation Receipt or citation ticket, indicating the fine imposed. He shall instruct the offender to pay the fine at the City Treasurers Office or the Barangay Treasurers Office, or to serve the penalty provided in the ordinance, such as community service in the case of the ordinance prohibiting minors from smoking, within a given period. 5. Payment of fine or service of penalty provided in the ordinance a. If the violator pays the fine or serves the penalty provided in the ordinance, within the given period, the process ends. This will allow him to avoid criminal prosecution, or other lengthy proceedings.

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b. If the violator does not pay the fine nor serve the penalty provided in the ordinance, within the given period, the law enforcer shall institute the proper criminal action. 5.3. What are the steps in proceeding against establishments which violate or do not comply with the tobacco ordinance in Marikina City? 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. Any member or employee of the City Health Office, b. Any member or employee of the Business Permit and Licensing Office of Marikina c. Any member of the Philippine National Police stationed in Marikina, or the Marikina Police Department, d. Any member of the Office of Public Safety and Security (OPSS), particularly the OPSS City Ordinance Task Force, e. Barangay Officials, Kagawad, Tanods of Barangays, f. Any member of Bantay Bayan. 6. The proper law enforcers shall inspect the premises and/or conduct the necessary investigation of the reported establishment, for purposes of verifying the commission of the offense. 7. If found to have committed a violation, the proper law enforcer shall issue an Ordinance Violation Receipt or citation ticket, indicating the fine imposed. He shall instruct the offender to pay the fine at the City Treasurers Office or the Barangay Treasurers Office within a given period. 8. Payment of fine a. If the violator does not contest the violation and is willing to pay the fine, he shall pay the fine at the City Treasurers Office or the Barangay Treasurers Office within the given period. This will allow him to avoid criminal prosecution, particularly if done prior to the institution of a criminal action, and the process ends. b. If the violator does not pay the fine within the given period, the law enforcer shall institute the proper criminal action. The violator in this case either contests the violation and refuses to pay the fine, or simply fails to pay the fine for any other reason. 9. A third offense shall merit the temporary closure of the business establishment concerned for one (1) week.

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5.4. Enforcement Flowchart

Violator

INDIVIDUALS - buying or selling of cigarettes in public places - minors smoking cigarettes and other tobacco products - any person selling and/or conveying cigarette products to minors

ESTABLISHMENTS - establishments selling, transferring and/or conveying cigarette products to minors - use, consumption or trade of cigarettes inside internet cafes/ computer rental shops/ computer gaming shops or centers

Penalties - Buying or selling cigarettes in public places - P1,000 fine. - Alternative penalty: (in case of incapacity to pay the fine) 4 hours of community service * If the offender is a minor, the parents or guardian shall pay the fine or render the community service.

Penalties
Business establishments catering to minors For first offense - Fine of P5,000. In case of incapacity to pay, offender shall render 16 hours (8 hours per day) community service. For second offense Fine of P5,000 and revocation of business permit and license to operate. Criminal complaint may also be filed in court.

Report to: - Any PNP-Marikina officer - Office of Public Safety and Security (OPSS), particularly the OPSS City Ordinance Task Force - Barangay tanods and Bantay Bayan

Officer issues the ORDINANCE VIOLATION RECEIPT or CITATION TICKET to person or entity apprehended

Officer gives instructions to the violator to pay the fine at the City Treasurers Office or Barangay Treasurers Office

Fine paid/ alternative penalty rendered within 24 hours?

YES Process ended until further violations

NO - Officer files appropriate action in court

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6. PASIG CITY 6.1. Profile of Implementation in Pasig City Pasig Citys tobacco ordinance dates back to 1996. It totally prohibits smoking in certain public places and conveyances, and requires other establishments to provide smoking areas. Covered public places are also required to post smoking and no smoking signs in the proper areas. It has no implementing rules or guidelines. The Pasig City government has successfully enforced their citys tobacco ordinance, albeit as part of its environmental program, the Pasig Green City Program, which is spearheaded by the City Environment and Natural Resources Office (CENRO). CENROs tasks include the inspection of establishments and the apprehension of violators. The CENRO conducts annual inspections of establishments. For this purpose, the CENRO has a Business Permits and Licensing Desk which issues environmental permits to establishments which do comply with environmental standards, including those on the specifications of smoking and non-smoking areas. For the apprehension of violators in public places and conveyances, the CENRO has a team of volunteer and deputized local enforcers called the Green Police. The Green Police monitor compliance with, and apprehend violators of environmental laws, ordinances and other issuances, basically functioning as an environmental police. They have environmental violation tickets or ordinance violation receipts which are issued to offenders who are then required to pay the corresponding fine. CENRO also coordinates with the Philippine National Police, although the latters functions are more general in character. Moreover, the City Health Office has initiated activities on tobacco control, including training programs for health workers and community workers. 6.2. What are the steps in proceeding against individual violators of the tobacco ordinance in Pasig City? 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. Any member or employee of the City Environment and Natural Resources Office, b. Any member of the Philippine National Police stationed in Pasig, or the Pasig Police Station c. Any member of the Pasig Green Police

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3. The proper law enforcer shall apprehend the violator. The proper law enforcer refers to the last two in the above enumeration: a. Any member of the Philippine National Police stationed in Pasig, or the Pasig Police Station, b. Any member of the Pasig Green Police. 4. The law enforcer shall issue an Ordinance Violation Receipt or Environmental Violation Ticket or citation ticket, indicating the fine imposed. He shall instruct the violator to pay the fine at the City Treasurers Office within a given period. 5. Paymen of Fine a. If the violator does not contest the violation and is willing to pay the fine, he may voluntarily pay the fine to the City Treasurer. This will allow him to avoid criminal prosecution, particularly if done prior to the institution of a criminal action, and the process ends. b. If the violator does not pay the fine, the law enforcer shall institute the proper criminal action. The violator in this case either contests the violation and refuses to pay the fine, or simply fails to pay the fine for any other reason. 6.3. What are the steps in proceeding against establishments which violate or do not comply with the tobacco ordinance of Pasig City? 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. Any member or employee of the City Environment and Natural Resources Office, b. Any member of the Philippine National Police stationed in Pasig, or the Pasig Police Station, c. Any member of the Pasig Green Police, d. Business Permits and Licensing Office. 3. The proper law enforcers shall inspect the premises of the reported establishment, for purposes of verifying the commission of the offense. 4. If found to be non-compliant, the law enforcer shall issue an Ordinance Violation Receipt to the owner, proprietor, administrator, operator or manager of the establishment. He shall furthermore instruct the violator to pay the fine within a certain period at the City Treasurers Office.

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5. The violator shall pay the fine at the City Treasurers Office. a. If the violator does not contest the violation and is willing to pay the fine, he shall pay the fine. This will allow him to avoid criminal prosecution, particularly if done prior to the institution of a criminal action, and the process ends. b. If the violator does not pay the fine and/or contests the findings, the law enforcer shall institute the proper criminal action. The violator in this case either contests the violation and refuses to pay the fine, or simply fails to pay the fine for any other reason. 6. A third time offense shall merit the closure of the establishment, the revocation of its permit or license, as well as the rendering of eight (8) hours of community service.

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6.4. Enforcement Flowchart Violation

INDIVIDUALS - tolerating smoking in areas where totally prohibited - smoking in non-smoking areas Penalties 1st offense: P100.00 fine 2nd offense: P300.00 fine 3rd offense: P500.00 fine

ESTABLISHMENT - tolerating smoking in areas where totally prohibited and in designated non-smoking areas - failure to designate smoking areas in the following places: --> bars, restaurants, etc. --> dance halls, or other public places offering facilities for dining and dancing --> department stores, markets, etc. --> factories and plants - designation of smoking areas where there are fire hazards, flammable liquids or gases - failure to post signages in proper areas - absence of Environmental Permit to Operate (EPO) - non-compliance with environmental rules and regulations

Report violation to: - Pasig Police Station - Pasig Green Police - Pasig Health Dept. - DOH local office or hotline

Penalties 1st offense: P100.00 fine 2nd offense: P300.00 fine 3rd offense: P500.00 fine In case of failure to post signages: 1st offense: P2,000.00 fine 2nd offense: P5,000.00 fine 3rd offense: revocation of permit and eight (8) hours community service In case of failure to secure EPO: P5,000.00 fine In case of refusal of entry of inspector: P2,500.00

Issuance of Ordinance Violation Receipt

Report violation to: - Pasig Police Station - Green Police - Business Permits and Licensing Office

Payment of fine

File complaint with prosecutor

Verification and Inspection of Establishment

Issuance of Ordinance Violation, Receipt to owner, proprietor, administrator, operator, or manager

Issuance of Ordinance Violation, Receipt to owner, proprietor, administrator, operator, or manager

Payment of fine *In case of 3rd time offense, closure of establishment + rendering of 8 hours community service

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7. QUEZON CITY 7.1. Profile of Implementation in Quezon City Quezon City has had an ordinance on tobacco since 1974. It has been amended more recently by the adoption of certain provisions of RA 9211 and its IRR, i.e. Sections 5 and 6 of RA 9211, and Title II, Rule I, Sections 4 and 5 of its IRR. Implementing rules for the ordinance have yet to be updated, to incorporate these recent amendments. In sum at present, Quezon City prohibits smoking in certain public places, allowing smoking only in designated smoking areas. Also, it is prohibited for minors to sell, purchase or smoke cigarettes and other tobacco products. Implementation of the ordinance is still hampered by the persisting lack of knowledge as to its contents, both by enforcers as well as by the community at large. Enforcers have stated that although they are willing to enforce the tobacco ordinance, they are still unclear about their role and what they can or should do in enforcing it. Second, there is also the problem of the size of the territory of Quezon City. This makes it more difficult to implement laws, including the anti-smoking ordinance, as there is a wider area of jurisdiction which enforcers must watch over. Third, and compounded by the problem of territorial size, is the relative deficiency in the number of possible enforcers, or a lower law enforcer-civilian ratio. That is, each enforcer has a larger number of civilians to look after. Finally, there is yet no centralized anti-smoking task force in Quezon City. A centralized task force can coordinate with greater efficiency the various departments and offices in the implementation of the tobacco ordinance, thus making them more effective in enforcing their roles. Despite the difficulties faced by Quezon City in enforcing the tobacco ordinance and RA 9211, the city has been relatively successful in other aspects. It has been conducting Information, Education and Communication Campaigns on the harmful effects of smoking. Moreover it has started enforcing the prohibition on smoking in a number of the public places and public conveyances. 7.2. What are the steps in proceeding against individuals who violate the tobacco ordinance in Quezon City? 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. City Mayor 293 b. City Engineers Office 294
293 IRR of RA 9211 (2004), Title VI, Rule II, Sec. 2 294 IRR of RA 9211 (2004), Title VI, Rule II, Sec. 2.

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c. Any member of the Philippine National Police stationed in Quezon City, or the Quezon City Police Station d. Teachers, barangay captains and kagawads, BSDOs, Peoples Patrol 295 e. Other duly deputized local enforcers. 3. The proper law enforcer shall apprehend the violator and bring him to the nearest police station for investigation. 4. The proper law enforcer shall institute the proper criminal action. 7.3. What are the steps in proceeding against establishments which violate or do not comply with the tobacco ordinance in Quezon City? 1. Discovery of the commission of a violation 2. Any concerned citizen may report the violation to: a. City Mayor 296 b. Business Permits and Licensing Office c. City Engineers Office 297 d. Any member of the Philippine National Police stationed in Quezon City, or the Quezon City Police Station e. Teachers, barangay captains and kagawads, BSDOs, Peoples Patrol 298 f. Other duly deputized local enforcers. 3. The law enforcer shall inspect the premises of the reported establishment, for purposes of verifying the commission of the offense. 4. If found to be non-compliant, the law enforcer shall issue a warning letter together with a request for compliance within a certain period to the erring establishment. 5. Upon expiration of the given period, the proper law enforcers shall re-inspect the establishment. Upon re-inspection, the inspector may find that the establishment either: a. Complies with the ordinance. If found to be compliant, the process ends and the establishment may continue to operate.
295 Exec. Order No. 14, Series of 1990, Chapter IV, Sec. 1. 296 IRR of RA 9211 (2004), Title VI, Rule II, Sec. 2. 297 IRR of RA 9211 (2004), Title VI, Rule II, Sec. 2. 298 Exec. Order No. 14, Series of 1990, Chapter IV, Sec. 1.

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b. Continues to violate the ordinance. In case of continued noncompliance, the inspector shall issue a second warning letter together with a request for compliance within a certain period to the erring establishment. 6. Upon expiration of the given period, the proper law enforcers shall re-inspect the establishment. Following this third re-inspection, the inspector may find that the establishment either: a. Complies with the ordinance. If found to be compliant, the process ends, and the establishment may continue to operate. b. Continues to violate the ordinance. In case of continued noncompliance, i. The inspector shall require the establishment to pay the fine or serve other penalty provided in RA 9211 or the proper ordinance, such as the closure of the establishment or the revocation of its business license or permit to operate. ii. The proper law enforcer shall institute the proper criminal action against the establishment, if the establishment contests the violation. If convicted, the owner, manager or operator of the establishment shall be required to pay a fine, or serve time in prison, or serve other penalties that may be provided in RA 9211 or the proper ordinance.

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7.4. Enforcement Flowchart

Who is the violator?

INDIVIDUALS- Prohibited Acts: -smoking in public places

-any person selling and/or conveying and/or purchasing cigarette and other tobacco products to minors -selling/distributing cigarettes within 100 meters from any point of perimeter of schools, playgrounds or any other facility frequented by minors How Punished: FINE: (smoking in public places) First offense: 500-1000 Second offense: 1000-3000 Third offense: 3000-5000 FINE AND/OR IMPRISONMENT (selling to minors): First offense: 500 peso fine or imprisonment of five days or both at the discretion of the court Second offense: 1000 fine or imprisonment of ten days or both at the discretion of the court Third offense: 2000 peso fine or imprisonment or both at the discretion of the court If minor is caught, the provisions of Article 189 of the Child and Youth Welfare Code shall apply

ESTABLISHMENTS - Prohibited Acts -establishments selling cigarette products to minors - non-smoking areas having no visible signs saying NON-SMOKING AREA or NO SMOKING - establishments not posting SMOKING AREA signs for the designated smoking area and/or establishments not having designated smoking areas - designated smoking areas not following specifications/ standards
How Punished: SELLING TO MINORS-In addition to the penalties of fine and/or imprisonment, the owner, proprietor, president, or manager thereof shall be punished with the imposition of the penalties indicated, in addition to the revocation of the business permit or license to operate business. NON-POSTING/NOT FOLLOWING STANDARDSFINE: First offense: 500 -1,000 Second offense: 1,000 - 3, 000 On the third offense, in addition a fine of not less than 3000 but not more than 5000, the business permits and licenses shall be revoked. To ensure that establishments follow the ordinances with regard to the standards imposed, the mayor upon the recommendation of the City Engineers Office is authorized to institute criminal proceedings against the violators.

Complaint is lodged at the nearest police station or city engineers office for investigation and appropriate filing of charges before the office of the City Prosecutor. Violator may also be brought directly to the nearest police station. For business establishments, the City Engineers Office and Business Permit Licensing Office are tasked to inspect and certify the appropriateness of the designated smoking areas provided by service establishments taking into consideration the air quality standards provided in the ordinance.

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APPENDIX

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FORM A: COMPLAINT INITIATED BY PNP Republic of the Philippines City of Manila COMPLAINT The undersigned, , accuses the (tobacco manufacturer & advertiser) and its officers of the crime of the violation of the Tobacco Regulation Act of 2003 otherwise known as Republic Act No. 9211, specifically the provision: The crime was committed as follows: 1. That on or about (month day, year), in the City of _______, and within the jurisdiction of this court, the said accused, did then and there unlawfully (cite the acts that constitute the elements of the violation): 2. That the aforesaid acts are done against the specific requirements of Section 13(c) Republic Act No. 9211 which requires that ; as a measure to protect the populace from hazardous products, promote the right to health, and instill health consciousness. Contrary to law. (Day) (Month) (Year), (City) Chief of Police SUBSCRIBED AND SWORN to before me this _____ day of (month) (year), complainant , before me exhibiting his Residence Certificate No. issued on -at . Doc. No. ; Page No. ; Book No. ; Series of (year) WITNESSES: FORM B: FORMAL CHARGE BY THE ) ) s.s.

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CITY MAYOR, BUILDING OFFICIAL OR MEMBER OF THE PNP FORMAL CHARGE Based on reports and actual verification, you have been reported to have violated the provisions of the Tobacco Regulation Act of 2003 otherwise known as RA 9211, specifically: . Pursuant to the Local Government Code provisions on the duty of the mayor to enforce all laws relative to the governance of the city as well as Title IV Rule 2 Section 2 of the Implementing Rules and Regulations of RA 9211, undersigned, as the officials duly authorized to initiate action to effectively implement RA 9211, hereby formally charges you for the violation above. In reaction thereto, you are hereby notified and commended to appear on (Day, month year) at am./p.m. for the FORMAL INVESTIGATION of the charge/s against you, independent of any criminal and/or civil actions which may be prosecuted for the same violation. In the meantime, pending the commencement of the formal investigation and pursuant to Section in undersigned hereby ORDERS the following: . For this purpose, the PNP concerned are hereby instructed to assist and/or implement the above and ensure compliance until further orders from this office. FOR STRICT COMPLIANCE AND ENFORCEMENT Done in the Philippines on this UNDER THE AUTHORITY OF THE CITY MAYOR concerned building official member of the PNP day of (Month, year),

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Republic Act 9211

SAMPLE LETTER TO MAYOR/CONCERNED LOCAL GOVERNMENT OFFICIAL

(Insert Name of Mayor/Concerned Local Government Official) Dear Sir/Madam: Good day! We are , (insert name of civil society group) a concerned civil society group that has its main purpose the , (insert primary corporate purpose) represented by (insert name of representative). We would like to call your attention to the violation/s of Republic Act 9211 or the Tobacco Regulation Act occurring in your jurisdiction. The following are the violation/s that we have witnessed, and the person/s responsible for the violations: 1.) 2.) 3.) (Insert violations of the Tobacco Regulation Act and the violator.) Attached to this letter is/are photo/s and other proof that we have taken. We hope that you will act urgently on this matter and respond to this letter of ours. Thank you. Name of Representative

Republic Act 9211

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SAMPLE FOLLOW-UP LETTER

(Insert name of City Mayor/ Concerned Local Government Official) Dear Sir/Madam: Good day! We are , (insert name of civil society group) a concerned civil society group that has its main purpose the (insert primary corporate purpose) represented by (insert name of representative). On (insert date), we sent a letter to your office calling your attention to violation/s of Republic Act 9211 or the Tobacco Regulation Act occurring in your jurisdiction. Since that date, fifteen (15) working days has already passed, we have not received any response to the letter or any action regarding the violation/s. Attached is a copy of the letter we sent to your office. According to Section 5(a) of Republic Act 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees, quoted below: In the performance of their duties, all public officials and employees are under obligation to: 1. Act promptly on letters and requests-All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams, or other means of communication sent by the public. The reply must contain action taken on the request. We would like to remind your good office of your duty to enforce Republic Act 9211 or the Tobacco Regulation Act, and your obligation under the law just cited to act on our letter. We hope you will act favorably on this letter of ours. Thank you. Name of the representative

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Republic Act 9211

LETTER OF APPRECIATION

(Insert Name of Mayor/Concerned Local Government Official)

Dear Sir/Madam: Good day! We are ,(insert name of civil society group) a concerned civil society group that has its main purpose the , (insert primary corporate purpose) represented by (insert name of representative). We would like to thank your good office for the favorable action you took regarding the letter we sent last . (Insert Date) Attached is the letter we sent. The success of tobacco control efforts in the Philippines can only be achieved with your continued vigilance in the enforcement of the law. In our groups efforts to curb the tobacco epidemic, we hope that you will be always be our partner. Thank you.

Name of Representative