SPECIAL TOPIC REPORT
Recognized APAA Group of the PHILIPPINES
Report to the Emerging IP Rights Committee
62nd Council Meeting in Hanoi, Vietnam
Development of Plain Packaging Legislation and Potential Implications
on Cigarettes and Other Products
By: Maria Trinidad “Leny” P. Villareal, Esq.
APAA Philippine Group
Emerging IP Rights Committee
1.
Development of plain packaging legislation in the Philippines
a)
Does the Philippine Constitution (or other relevant legislation in the Philippines) have
any provision that restricts the property rights (particularly IP rights) of a person?
There is no specific provision in the Philippine Constitution that restricts the property
rights of a person. In fact, the following provisions of our Constitution recognizes and protects
property rights, to wit:
i.
Article III, Section 1, Bill of Rights – No person shall be deprived of life,
liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
ii.
Article III, Section 2. Bill of Rights – 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
upon 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 or things to be seized.
iii.
Article III, Section 3 (1) and (2), Bill of Rights – (1) The privacy of
communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise
as prescribed by law; (2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any proceeding;
iv.
Article III, Section 9, Bill of Rights – Private property shall not be taken
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for public use without just compensation.
Our Constitution, in fact, under Article XII (National Economy and Patrimony), Section
13 (Science and Technology), provides that “The State shall protect and secure exclusive rights of
scientists, inventors, artists and other gifted citizens to their intellectual property and creations,
particularly when beneficial to the people, for such period as may be provided by law.
(Emphases, supplied)
Section 15 of Article IX of our Constitution (Accountability of Public Officers) provides
that the “right of the State to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees, shall not be barred by prescription,
laches, or estoppel”. Said Section 15 elevated to the level of a Constitutional provision, the
mandate of our Forfeiture Law or Republic Act 1379, that provides that the State has the power
to institute forfeiture proceedings against any public officer or employee, in order to recover
properties found to have been unlawfully acquired.
b)
Is there any legislation in the Philippines that recognizes and implements the principles of
Article 8 of TRIPS?
Yes. Article II (Declaration of Principles and State Policies), Section 15 provides as a
State policy, that “The State shall protect and promote the right to health of the people and instill
health consciousness among them.” In relation thereto, the police power of the State is
provided under Section 5, Article II of the Constitution, to wit: “The maintenance of peace and
orderl the protection of life, liberty and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of democracy.
In connection with the foregoing, under the Consumer Act of the Philippines or Republic
Act No. 7394, Filipinos have the right to obtain accurate information as to the nature, quality and
quantity of the contents of consumer products, as well as the right to be protected from deceptive,
unfair and unconscionable sales acts or practices.
There is in fact, the Philippine Tobacco Regulation Act of 2003 or Republic Act No. 9211
that was enacted to promote the general welfare, to safeguard the interests of the workers and
other stakeholders in the tobacco industry. Two of the purposes of the Act under Section 3, subparagraphs (c) and (d) thereof, are to regulate and subsequently ban all tobacco advertisements
and sponsorships; and regulate the labeling of tobacco products. Section 11 of the same Act
(Signage), in fact, states that the “Point-of-Sale establishments offering, distributing or selling
tobacco products to consumers, shall post the following statement in a clear and conspicuous
manner: 'SALE/DISTRIBUTION TO OR PURCHASE BY MINORS OF TOBACCO
PRODUCTS IS UNLAWFUL" or " IT IS UNLAWFUL FOR TOBACCO PRODUCTS TO BE
SOLD/DISTRIBUTED TO OR PURCHASED BY PERSONS UNDER 18 YEARS OF AGE".
Sections 13-27 of the Act provide for the restrictions on advertising of cigarettes/tobacco
products in all forms of media, as well as the absolute ban on sponsorships of events by tobacco
companies of their products. Specifically on the matter of tobacco products' trademarks, Section
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26 of the Act, provides for the total ban on tobacco or cigarette companies’ sponsorships of any
event, as well as of any individual and team athletes, artists or performers where such event
involves the advertisement or promotion of any cigarette or tobacco company, or cigarette or
tobacco brand, trademarks and similar or related indicia.
c)
Has the Philippines enacted, or have a plan to enact, a law that implements Articles 11
and 13 of the WHO Framework Convention on Tobacco Control (FCTC)?
The Philippines signed the FCTC, on September 4, 2005, and following the country's
ratification of the FCTC having secured the Constituionally-required concurrence two-thirds vote
of the Philippine Senate, the FCTC is considered to be part of the laws of the land.
In view of the aforecited provisions of our Tobacco Regulation Act, the Philippines may
be considered to have a piece of legislation in place that is compliant with Article 13 of the
FCTC.
With regard to Article 11 of the FCTC, there are at present, pending with the 16th
Congress of the Philippine Senate, two Bills, No. 499 and 27, respectively introduced by
Senators Franklin Drilon and Pia Cayetano, both with the short titles, “Picture-Based Health
Warning Act of 2013”, which in a nutshell, prescribe that all cigarette packages and other
tobacco products found in the market, including cartons or master cases, must bear highly visible
full-color picture-based health warnings.
There is also in place, Department of Health (DOH) Administrative Order No. 2010-0013
requiring graphic health information on tobacco product packages, adopting measures to ensure
that tobacco product packaging and labeling do not promote tobacco by any means that are false,
misleading, deceptive or likely to create an erroneous impression.
d)
Is a move to plain packaging in the Philippines possible under Philippine laws?
It depends on which party is being asked such a question. If the party being asked is a
DOH official or a staunch health advocate, the answer is yes, and the basis will be the earliercited Constitutional provisions on the police power of the state/state policy to promote the health
and general welfare of the populace.
From a purely intellectual property law standpoint, however, a move towards plain
packaging is seen as a violation of the Intellectual Property Code of the Philippines, Republic
Act No. 8293, as well as salient provisions of various IP international law treaties, to which the
Philippines is a signatory. Yes, the matter of whether smoking is generally hazardous to one's
health is a valid concern, but resorting to plain packaging per se is not solely a health and
environmental concern issue, but involves the curtailment of IP and commercial property rights
of the owners of marks for tobacco/cigarette products. The IP right is divorced from the health
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issue rights. One must distinguish between these two types of rights, and it is arguable that
resorting to plain packaging will curb or eradicate smoking of cigarettes or tobacco products.
The matter is reminiscent of the fairly recent tug-of-war arguments raised in relation to
our controversial Generics Act and Cheaper Medicines Act.
e)
What are the positions of the Philippine government, the legislature and the general
public, in relation to plain packaging legislation for tobacco products?
The government, legislature and the general public are divided on the issue. There is
very strong lobbying from either side – health advocates vs. tobacco products' brand owners.
2.
Potential losses of trademark rights under plain packaging legislation, and related
compensation issues and obligations
a)
Can the Philippine government stop or restrict the use of a trademark or trade dress use,
and if so, under what circumstances?
From a strict interpretation of the applicable provisions of our IP Code and those
provisions of IP-related international treaties to which the Philippines is a signatory, (e.g., Article
20 of the TRIPS Agreement that states that “The use of a trademark in the course of trade shall
not be unjustifiably encumbered by special requirements, such as use with another trademark,
use in a special form or use in a manner detrimental to its capability to distinguish the goods or
services of one undertaking from those of other undertakings. This will not preclude a
requirement prescribing the use of the trademark identifying the undertaking producing the
goods or services along with, but without linking it to, the trademark distinguishing the specific
goods or services in question of that undertaking.”; Emphases, supplied), it does not appear that
the Philippine government can validly stop or restrict te use of a trademark or trade dress,
without being considered to be in violation of our IP Code/treaty commitments.
There will have to be a separate piece of legislation enacted amending the current IP
Code provisions.
b)
If the Philippine government can stop trademark use, does the government need to
compensate the (trademark) owner?
Yes, I believe so. Article 2199 of the Philippine Civil Code states that “Except as
provided by law or stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual
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or compensatory damages”. (Emphasis, supplied) Article 2200 of the same Code provides that
“Indemnification for damages shall comprehend not only the value of the loss suffered, but also
that of the profits which the obligee failed to obtain”.
3.
Restriction of advertising of cigarettes and other tobacco products
a)
Can the Philippine government stop or restrict the advertising of tobacco products, and if
so, under what circumstances?
Yes, as already cited above under the Tobacco Regulation Act.
The Tobacco Regulation Act of 2003 defines the term “sponsorship” to refer to “any
public or private contribution to a third party in relation to an event, team or activity made with
the aim or promoting a brand of tobacco product, which event, team or activity would still exist
or occur without such contribution”
Section 26 of the Act provides for the total ban on tobacco or cigarette companies’
sponsorships of any event, as well as of any individual and team athletes, artists or performers
where such event involves the advertisement or promotion of any cigarette or tobacco company,
or cigarette or tobacco brand, trademarks and similar or related indicia.
The term “sponsorship” is considered related to the term “sales promotion”, which is
defined under our Consumer Act under Article 4 (bm) to mean “techniques intended for broad
consumer participation which contain promises of gain such as product, security service or
winning in contest, game, tournament and other similar competitions which involved
determination of winner/s and which utilize mass media or other widespread media of
information. It also means techniques purely intended to increase the sales, patronage and/or
goodwill of a product”
b)
If the Philippime government can stop advertising does the government need to
compensate the (trademark) owner?
Yes, as discussed above under item 2 b).
4.
Potential restriction of use and advertising of trademarks on other goods deemed
harmful to the public health
a)
Have use and advertising of trademarks on other goods which are legal been restricted in
the Philippines due to their potential harmful effects? Please expand (discussion),
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particularly with respect to how these restrictions affect IP owners – trademarks, common
law public reputation, patents etc...
Yes. Our Consumer Act in Chapter VI thereof, provides in relevant parts, as follows:
“Article 112. Special Advertising Requirements for Food, Drug, Cosmetic,
Device or Hazardous Substance
i.
No claim in the advertisement may be made which is not contained in the
label or approved by the concerned department (of the Department of
Trade & Indistry; “DTI”).
ii.
No person shall advertise any food, drug, cosmetic, device, or hazardous
substance in a manner that is false in impression regarding its character,
value, quantity, composition, merit, safety.
iii.
Where a standard has been prescribed for a food, drug, cosmetic, or device,
no person shall advertise any article or substance in such a manner that it
is likely to be mistaken for such product, unless the article complies with
the prescribed standard or regulation.
iv.
No person shall, in the advertisement of any food, drug, cosmetic, device,
or hazardous substance, make use of any reference to any laboratory report
of analysis required to be furnished to the concerned department (of the
DTI), unless such laboratory report is duly approved by such department.
v.
Any businessman who is doubtful as to whether his advertisement relative
to food, drug, cosmetics, device, or hazardous substance will violate or
does not conform with this Act or the concerned (DTI) department's
pertinent rules and regulations may apply to the same advertisement is
disseminated to the public. In this case, the concerned (DTI) department
gives its opinion and notify the applicant of its action with thirty (30) days
from the date of application; otherwise, the application shall be deemed
approved.
vi.
No person shall advertise any food, drug, cosmetic, device, or hazardous
substance unless such product is duly registered and approved by the
concerned (DTI) department for such use in any advertisement.
DTI Administrative Order (“DAO”) No. 10-02 of 2010 strengthening the provisions of
the Consumer Act expands the said Act’s provisions on advertising and sales promotions to
include sponsorship of game shows and similar activities, that requires that conducting said
activities requires the prior approval of the DTI.
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Although not a government body, there is a strong private association of
advertisers/advertising companies known as the Advertising Board of the Philippines (the
“Adboard) that polices its own members through its own Code of Ethics that have been in place
for more than 20 years now.
The Adboard’s Code of Ethics also require as follows:
b)
i.
No pharmaceutical product may be advertised unless it has been duly
registered with the Bureau of Food and Drug (now known as the Food
and Drug Administration (“FDA”). Only non-prescription drugs may
be advertised in the mass media; prescription drugs can only be
advertised through publications solely intended for the medical and allied
professions.
ii.
With respect to alcoholic beverages, no advertisement should (a) state
that drinking is essential to social success or acceptance; (b) feature or
promote excessive drinking; (c) be aimed at minors (i.e., those below 18
years of age) as the target audience. All advertisements should carry the
device “Drink moderately”.
What are the consumer goods which are legal but listed under the laws as harmful to the
public health or deemed harmful to the public health in the Philippines?
Alcoholic drinks / liquor / prescription drugs when dispensed without doctors'
prescriptions.
Apaa 2013. Special Topic Report EIPRC