Drafting Guidelines

1. Drafting Guidelines Tobacco Control Policy Development and Legislative Drafting Workshop SEATCA Tobacco Control Training Rose Nathan, JD, MPH Global Public Health Law Services, LLC

2. 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

3. 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 inter-related provisions • is not sensitive to local culture/circumstances • Is not enforced

4. 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

5. 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.

6. 10 Drafting Guidelines • Clearly identify all persons charged with a duty under the law. • Provide suitable penalties for all legal obligations: a range of penalties to allow tailoring to fit the violation, along with sufficient inspection authority • Avoid too much detail in the law, yet provide enough detail. • Pay attention to the use of the conjunctive (and) and disjunctive (or) • Provide for reasonable exceptions and exemptions.

7. Drafting Guidelines, cont’d 6. Be as careful and think ahead when drafting: learn from the lessons of others. 7. Define key terms. • Be careful with mandatory vs. permissive language. • Avoid lists where possible. • Avoid using intent language.

8. 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

9. 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…”

10. 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.”

11. 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

12. 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

13. 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.

14. 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.”

15. 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, orpays for any tobacco advertisement.” What is the difference?

16. 5. Provide for reasonable exceptions and exemptions. Provide common sense interpretationsof 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

17. 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).

18. 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

19. 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.”

20. 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.

21. 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?

22. 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?

23. 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.”

24. 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