Sorting out the confusion in the vaping ban 

Published November 28, 2019, 12:05 AM

by Charissa Luci-Atienza & Bernie Cahiles-Magkilat



Atty. Joey D. Lina
Atty. Joey D. Lina

The sudden announcement by President Duterte last Tuesday night of the ban on vaping in public caught many by surprise.

“Smoking is dangerous. Vaping is also dangerous. I am banning it,” the President said in a Malacañang press conference. “You know why? Because it is toxic, and government has the power to issue measures to protect public health and public interest,” he stressed.

“Better stop it because I will order your arrest if you do it in a room. I am ordering the law enforcement agencies to arrest anybody vaping in public,” Mr. Duterte said.

The ban on vaping or use of electronic cigarettes was ordered after the Department of Health (DOH), which said there are about a million e-cigarette users in the country, recently confirmed that a 16-year-old girl from Central Visayas became the country’s first patient suffering from its hazardous effects.

Health Secretary Francisco Duque said that the girl “was not asthmatic, but had been vaping daily for four months since March, then started using both the device and traditional cigarettes until she was hospitalized on Oct. 21 after a sudden onset of difficulty of breathing.”

It was revealed that the girl “met the case criteria for vaping injury laid down by the US Centers for Disease Control and Prevention (CDC).” A published report said the CDC “has recorded at least 2,172 cases of lung injuries and 42 deaths associated with e-cigarettes and vaping.”

The supposedly harmful effects of vaping apparently prompted President Duterte’s swift action. “The e-cigarette is making it worse. There are chemicals that are added to nicotine which we do not know. And I am not about ready to allow the young people of the Philippines to get sick and to die,” he explained.

Sen. Bong Go, chairman of the Senate health committee and President Duterte’s staunchest ally, also expressed deep concern upon learning the plight of the girl who has fallen victim to the e-cigarette fad. “We oppose the unregulated use of these products and how it is easily accessed by minors,” he said about two days before the vaping ban was announced.

Sen. Go said data from the US CDC revealed that “e-cigarette users are 56% more likely to suffer from a heart attack and 30% more likely to suffer from stroke than non-users. E-cigarette products contain nicotine, a highly addictive substance, and other chemicals that are potentially toxic and carcinogenic.”

While many expressed support for the vaping ban, others questioned the legality of the President’s sudden move. Even his warning to the courts interfering with his order to arrest people caught vaping in public was met with some opposition.

“It sends the wrong signals that he can order the judiciary and that’s not right. He cannot order the judiciary because of the concept of separation of powers of government,” a law dean said in a radio interview.

And many law enforcers seemed unsure on what to charge those caught vaping. Philippine National Police officer-in-charge Lt. Gen. Archie Gamboa is said to have told cops to arrest but not detain those caught. The names of those arrested will just be listed in police blotters and they will then be released. But some raise the question: If one is arrested, isn’t it the inquest fiscal who is supposed to order the release?

A lawmaker who has distinguished himself as a legal expert also stressed that a law prohibiting vaping or e-cigarette smoking must first be passed before authorities can arrest vapers. He cited the legal principle of “nullum crimen sine lege,” meaning one “can only be arrested to face criminal punishment for acts that had been criminalized by law before he or she had committed it.”

Amid the apparent confusion over the legality of the ban, other legal experts explained President Duterte’s move to ban vaping products has legal basis indeed.

Sen. Francis Tolentino said that the Consumer Act of the Philippines or RA 7394 provides legal basis. The law states: “Any consumer product, the sale or use of which has been banned or withdrawn in the country of manufacture, shall not be imported into the country (Article 15).” He explained that there is a vaping ban in China’s Shenzhen City which is “home to companies producing about 95% of the world’s e-cigarettes.”  He added vaping is also banned in San Francisco, California where JUUL vape is manufactured.

There is also RA 9211 which says that “cigarette refers to any roll or tubular construction, which contains tobacco or its derivatives and is intended to be burned or heated under ordinary conditions of use.”

Likewise, RA 8749 or the Clean Air Act of 1999 provides that “the right to breathe clean air” is among the rights “to be recognized and the State shall seek to guarantee their enjoyment.” But amid the raging debate on whether the vaping ban stands on solid grounds, one thing is clear: The President is indeed duty-bound to protect public health.

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