Transcript 10 Drafting Guidelines - ASH > Action on Smoking & Health

Drafting Guidelines
Tobacco Control Policy
Development and Legislative
Drafting Workshop
SEATCA Tobacco Control
Training
Rose Nathan, JD, MPH
Global Public Health Law Services, LLC
Effective laws…
• are informed by evidence
• enjoy widespread support
– the need and benefits have been effectively communicated to the
public
– obligations under the law are explained to those who must
comply
• are drafted with painstaking precision
• are continuously monitored and enforced
– it is necessary to monitor the legislation’s effectiveness
and be prepared to make amendments
The law can fail if it…
• contains ineffective measures/measures not informed by
the evidence
– E.g., advertising restrictions rather than a comprehensive ban-known to be ineffective but may pave the way for effective
regulation later
• is not accepted by the public (a communications problem)
• is not tightly drafted and does not take account of interrelated provisions
• is not sensitive to local culture/circumstances
• Is not enforced
Challenges to effective tobacco
control law-making
• Lack of public support
• Lack of political will for strong and comprehensive
provisions
• Tobacco industry influence, arguments and tactics
– conducting false science
– creating fear on the part of policy makers, businesses
– financial resources
– ability to find loopholes and skillfully adapt tactics to
exploit them
• the worm and the patch syndrome
Disclaimer
The following guidelines are designed to help
avoid potential drafting pitfalls/traps common
under many (but not all) legal systems.
Different drafting rules do apply in different
countries and under different legal systems.
Examples are not intended to be, and are not,
comprehensive.
A local lawyer, and someone local with TC
expertise, should be involved with/review any draft
legislation.
10 Drafting Guidelines
1. Clearly identify all persons charged with a duty under
the law.
2. Provide suitable penalties for all legal obligations: a
range of penalties to allow tailoring to fit the violation,
along with sufficient inspection authority
3. Avoid too much detail in the law, yet provide enough
detail.
4. Pay attention to the use of the conjunctive (and) and
disjunctive (or)
5. Provide for reasonable exceptions and exemptions.
Drafting Guidelines, cont’d
6. Be as careful and think ahead when drafting:
learn from the lessons of others.
7. Define key terms.
8. Be careful with mandatory vs. permissive
language.
9. Avoid lists where possible.
10. Avoid using intent language.
1. Clearly identify all persons
charged with legal duties.
Unless it is clear who has a duty to comply/ensure
compliance, there may be no way to enforce law.
Example: Protection from tobacco smoke - duty on:
smoker not to smoke
employer/premises owner/operator to take
reasonable steps to prevent/stop smoking
government to enforce the law
Spot the difference
• “It shall be an offence to smoke in any enclosed
public place.”
• “It shall be the duty of every owner or operator of a
public place to take all reasonable steps to ensure
that no person smokes in violation of this chapter.
Reasonable steps include…”
2. Provide Appropriate Penalties For
All Legal Obligations…
Narrow and/or inappropriate penalties may deter
enforcement and/or encourage non-compliance.
Example 1: “Any person who smokes in violation of Sec. X, and any
owner/occupier or employer who fails to take reasonable measures
to prevent or stop smoking in violation of Sec. X, shall be guilty of
an offence and shall serve 6 months in jail.”
Example 2: “Any person who smokes in violation of Sec. X, and
any owner/occupier or employer who fails to take reasonable
measures to prevent or stop smoking in violation of Sec. X shall be
subject to a fine of 20 pesos.”
Provide a range of penalties to allow
tailoring to fit the violation
For example:
• Licensure sanction
• Fines
• Forfeiture of ill gotten gains
• Forfeiture of noncompliant products
• Jail
• Adverse publicity
And sufficient inspection and
enforcement authority
Empower government with good inspection authority
to inspect premises, copy records, interview employees,
take samples, etc.
subpoena power
clear lines of authority to all involved ministries/agencies
Provide a private right of action in the event of
government inaction, if appropriate under the legal
system
against violators, companies, government
e.g., France, Uganda
3. Avoid too much detail in the
law, yet provide enough detail.
Excessive detail can result in regulatory inflexibility.
Example: Package labeling/advertising - avoid:
Prescribing content of health messages in the law itself
Prescribing constituent disclosure content in the law
itself
Example: Product regulation
Too many scientific unknowns at this time
Instead, provide ministerial authority to regulate
constituents, additives, design features, etc.
Spot the difference
“Tobacco product packages and advertisements
shall display tar and nicotine levels in a clear and
conspicuous manner.”
“The Minister shall have the authority to prescribe
what ingredients, constituents and additives shall
be required on tobacco product packages.
Additionally, the Minister may prescribe the
location, size, and all other details related to
ingredients, constituents, and additives
disclosures.”
4. Pay attention to the use of the
conjunctive (and) and disjunctive (or)
Be careful with the use of “and” versus “or”.
Example 1: “The advertising ban in the previous section
applies to any person who commissions, publishes, and
pays for any tobacco advertisement.”
Example 2: “The advertising ban in the previous section
applies to any person who commissions, publishes, or
pays for any tobacco advertisement.”
What is the difference?
5. Provide for reasonable
exceptions and exemptions.
Provide common sense interpretations of what
does/does not constitutes prohibited conduct.
E.g.: Individual and incidental display of a personal
pack of cigarettes
E.g.: Private conversations about tobacco products
Reasonable exemptions/phase-ins
periods, cont’d
E.g.: Specified time period to end contracts (e.g.,
sponsorships)
E.g.: Exemption of thousands of small retailers
from licensure
Additional option: provide ministerial authority to
provide rules to avoid unintended consequences
(as is the case in South Africa).
6. Be as careful and forward thinking
as possible in drafting.
Learn from the lessons of others.
E.g., “light” and “mild” and colors
Brazil
E.g., tamper proof packaging and labeling
Package flaps or stickers that can cover the
warning messages
E.g., allowing point of sale advertising without
being clear on the limits
S. Africa
Inattentive
drafting
• “A retailer of tobacco
products may indicate
the availability of
tobacco products and
their price only by
means of signs that (a) do not exceed one
square meter in size; and
(b) are placed within one
meter of the point of
sale.”
7. Define key terms.
Terms can be defined in any way, as long as the
definition is clear (but departure from established definitions
may create confusion).
Define terms precisely and comprehensively, yet clearly.
E.g.,“advertising”: should include direct and indirect forms;
all media; any indicia of tobacco product, manufacturer,
brand; that promotes, makes aware, portrays in positive light,
etc.
If terms like “clear and conspicuous”, “prominent”, “adequate”
etc. are used, the regulations must provide precise measures
for them.
8. Be careful with mandatory vs.
permissive language.
When making something an obligation, use the
correct term that means mandatory rather than the
term that means something is permissive
E.g. “Employers shall (or must) protect their workers
from exposure to tobacco smoke by ….”
E.g., “Employers should protect employee from
exposure to tobacco smoke smokes…”
E.g., “Restaurant owners/operators may designate
separate smoking rooms”
Which is mandatory under your legal system?
9. Avoid lists where possible.
Use of lists, even with the phrase “including but not
limited to”, can limit the law’s application to those
items in the list.
Example: “Public places means all places open to the
public, and include, but are not limited to: schools, health
care facilities, sporting or entertainment venues, banks,
libraries, and shopping centers.”
What about banks? Restaurants? Stores outside of
shopping centers?
10. Avoid using intent language.
Intent language is virtually impossible to prove.
E.g., “No person shall advertise in any manner
intended to attract a youth audience or in a
magazine intended to reach youth audiences”.
E.g.,“No person shall publish any tobacco
advertisement targeted at women.”
Living with the enabling authority
• What is contained in the law limits what can be done in
regulations
– Ministry can address only the topics authorized by the law
– Ministry can fill in details, but cannot change what is required
• E.g., if the law requires that tar and nicotine levels be
displayed on the package (as so many do because the
SACTOB warning is only recent), and gives the Ministry
authority to prescribe the details about their display, the
Ministry can seek to minimize the prominence of the
disclosures, but cannot avoid the disclosures
• Broad authority to the Ministry with the some direction for
carrying out legislative objectives can help assure an
effective, yet flexible result