An Examination of the Legal Framework for the Promotion of Tobacco and Other Related Products in Nigeria

AUTHOR: GBOREMI OGUNDIPE

Student (LL.B), Faculty of Law, University of Lagos.

INTRODUCTION

This essay highlights efforts by the Nigerian government at regulating the use of tobacco among its population through implementation of the National Tobacco Control Act (FRN Official Gazette.; No.70 Lagos – 10^th June, 2015; Vol. 102); and is also aimed at discussing the challenges of implementing the tobacco controls more specifically the loopholes that may be found therein and paying specific attention to the “peculiar” Section 12 of the National Tobacco Control Act in conjunction with the First Schedule of the National Tobacco Control Act, which contains the laws with respect to the Prohibition of Tobacco Advertising, Promotion and Sponsorship.

Although, as established by the Nigeria Global Adult Tobacco Survey (GATS) and published by the WHO 2012 Report, results showed that Nigeria has a relatively low smoking prevalence rate compared to other countries across the globe, it also showed that there exist a population of almost 13 million smokers, and that 18bn cigarettes are sold each year at a value of about $931m.

Also, lot of Nigerians are also exposed on a daily basis to Environmental Tobacco Smoke (ETS) also known as ‘second-hand smoke’, and in fact, exposure to second-hand smoke is one of the leading causes of preventable deaths, as established in a recent study published in the Journal of American Medical Association, (JAMA 2015).

The harmful effect of tobacco use is what has motivated countries over the world to implement control measures on the consumption and advertisement of tobacco. Nigeria is one of the three largest tobacco markets in Africa, others being Egypt and South Africa; and over the years, the Nigerian government has implemented measures aimed at controlling tobacco consumption among its population.

GOVERNMENT EFFORTS AT CONTROLLING TOBACCO CONSUMPTION

The history of Nigerian Tobacco Laws dates from The Tobacco Smoking (Control) Decree (No. 20) 1990; to The Tobacco Smoking (Control) Act (1990 No. 20); A Law to Prohibit the Advertisement of Cigarette and Other Tobacco-Related Products (2002, No. 4); Nigerian Industrial Standard (NIS) 463:2008, Standard for Tobacco and Tobacco Products – Specifications for Cigarettes; Nigerian Industrial Standard (NIS) 463:2014, Standard for Tobacco and Tobacco Products – Specifications for Cigarettes;

The current law regulating Tobacco consumption in Nigeria is The National Tobacco Control Act, 2015 2015 (FRN Official Gazette.; No.70 Lagos – 10^th June, 2015; Vol. 102); And some progress has been achieved by the Act majorly via establishing a National Tobacco Control Committee/Control Unit; a Tobacco Control Fund; Regulation of Smoking in public places, Prohibition of Tobacco Advertising, Promotion and Sponsorship; Tobacco Product Sales; Regulation of Tobacco Products, Tobacco Product Contents and Emissions Disclosures; Tobacco Product Packaging and Labelling; Licensing of Tobacco Dealer; Enforcement; Education, Communication, Training and Public Awareness; and of course Penalties for non-compliance.

Nigeria became a party to the WHO Framework Convention on Tobacco Control on January 18, 2006 to which the National Tobacco Control Act shares similarities; but as will be explained below, there remain some challenges with the Act that need to be addressed.

CHALLENGES WITH AND LOOPHOLES IN THE LAW

As established by virtue of the Explanatory Memorandum of the National Tobacco Control Act 2015,

“This Act provides the legal framework for the protection of present and future generations of Nigerians from the devastating health, social, economic and environmental consequences of tobacco use and exposure to tobacco smoke; and to give effect to the obligations to protect citizens against tobacco-related harms in the promotion of health and other human rights as contained in the WHO Framework Convention for Tobacco Control and other related treaties to which Nigeria is a party.”

The aim of the Act is therefore to provide regulations as to ensure that health, social and economic factors are controlled and protected as much as possible, and NOT to completely curtail or put an end to the rights of citizens’ to sell and smoke tobacco; and this in itself may amount to a challenge in the law.

The questions being answered in this paper are:

1. Whether giving free samples of cigarette packs falls within the restriction/prohibition of the Act;
2. Whether the giving of gifts, tokens, and souvenirs of cigarette packs falls within the restriction/prohibition of the Act;
3. Where the answer to these two questions fall in the positive, that is, that are prohibitions within the Act, what exceptions can be made/implied as within the Act?

In a view to giving a meaningful and well-explained analysis of these provisions in relation to the above questions, the writer will attempt to “re-arrange” the provisions in an order further expounding the order as given by the Act.

Section 12 (1) of The Act states that “Except as otherwise provided in this Act, no person shall –

• Promote or advertise tobacco or tobacco products in any form;
• Sponsor or participate in any programme or event which is aimed at whole or partially promoting or advertising tobacco or tobacco products; or
• Engage or participate in any tobacco advertising promotion or sponsorship as a media or event organiser, celebrity or other participant, as a recipient of any sponsorship contribution, or as an intermediary that facilitates any such contribution.”

Upon reading and understanding this provision, the next question that comes to the mind of a lawyer, is “what acts will constitute promotion or advertisement of a product?”

Will giving a free sample of a cigarette amount to an act of advertisement/promotion or not? Will the giving of gifts, token and souvenirs amount to an act of advertisement/promotion or not? The Act responds to these questions in s.12 (3), with reference to the First Schedule, stating that

(3): “Without limiting in any way the broad application of the provision of this section, the First Schedule to this Act provides examples of tobacco advertising, promotion and sponsorship that are prohibited under the Act.”

This therefore means that the First Schedule of the Act, could very well have been written under this provision, rather than having been put in a different section of the Act.

In the First Schedule, 21 examples (which do not limit the broad application of the Act) are given, and therein (Paragraphs 8 and 9) specific mention is made to offer of gifts, and samples respectively.

8. Provision or offer of gifts or discounted products, such as key rings, T-shirts, baseball hats, cigarette lighters, CDs, other trinkets or tobacco products.
9. Supply or offer of free samples of tobacco products including in conjunction with marketing surveys and taste testing.

In view of this (and in answering the first and second questions), it can be safely concluded that giving of free samples of tobacco products, and giving of gifts, both fall within the restriction/prohibition of the Act.

However, in view of the fact that a law must never be read in isolation, the provision of section 12 (2) must therefore also be analysed to obtain a wholesome knowledge of the possible exceptions under this Act, where such acts/examples can be brought within the meaning of the Act. It provides thus;

(2) “The provisions of subsection (1) of this section does not apply to communication between –

(a) tobacco manufacturers and wholesalers or retailers and vice versa

(b) manufacturers, retailers of tobacco or tobacco products and any consenting person who is 18 years of age or above ; and

(c) manufacturers, distributors, sellers and tobacco plant farmers.

With respect to the above provision, it has therefore been brought within the law, in the case of the above listed persons, such acts of “giving free tobacco pack samples” and “giving of gifts” when such communication takes places between/among the above mentioned individuals.

Also worthy of note is the fact that “Communication” is the sole form through which “Advertisement, Prohibition and Sponsorship” can possibly take place, whether via audio, visual or audio-visual means, and this comes with its perks and complications especially in this Internet Era. This can be explained in the following scenarios;

• If therefore, a gift, token, souvenir or discount given on tobacco or a tobacco-product can be given to any consenting person who is 18 years and above, at what point considering the digital era implications can it be said that such an 18 year old or above individual has “consented”?
• As regards manufacturers, wholesalers, retailers, distributors, sellers and tobacco plant farmers (can it be safely assumed that they will all be of the age 18 and above?).

Chances are that a “Tobacco plant farmer” just might be below the age of 18, as due regulations are expectedly in place, and can even be implied for the other individuals (wholesalers, retailers, distributors, sellers). Has he therefore automatically consented by way of by way of being a tobacco farmer, seeing as he is clearly not of age?

While by way of basic means of communication, issues and complications will hardly arise, with the coming of Internet dissemination of information as a means of communication between individuals, caution must therefore be taken, and these acts by way of internet circulation must be structured as best as possible to ensure that it is so done within the required exceptions of the Act, especially as regards the issue of “consent” and ensuring that such information is not made available to individuals other than those provided by the Act.

CONCLUSION AND RECOMMENDATIONS

Although Nigeria has secured a victory through the passage of the Tobacco Control Act, other significant hurdles remain which must be addressed if her goal of effectively regulating tobacco consumption is to be achieved.

One major issue with respect to the Act is the influence from the “Big Tobacco Companies” in the industry, which continue to use lobbying and front groups to successfully block and weaken Nigeria’s tobacco control. Furthermore, the fact that, no matter how much Nigeria tries to protect tobacco control policies from the tobacco industry’s vested interests and to vigorously implement the provisions of the WHO FCTC, the fact still remains that these companies have a strong hold on the Nigerian economy.

The influence of the industry in this way can be linked to the failure of the Tobacco Control Act to address:

– Smokeless tobacco (which remains a very viable alternative and other option);

– Counter-productive CSR programs by Tobacco companies (because of the economic benefits the industry brings); and

– The failure of the Nigerian law to completely ban tobacco advertising, promotion, and sponsorship at the point of sale, in domestic print media, and other media such as pamphlets and flyers by inserting a clause specifying that consenting adults can have advertisement and promotion extended to them (as discussed above).

Also, issues exist as to implementation, for instance; there exists a provision in the Act authorizing the Ministry of Health to issue a set of health warnings to be rotated at least every 24 months. This has neither been done nor has it received the necessary subsequent approval from both Houses of the National Assembly.

The WHO warns that if unchecked, tobacco-related deaths will increase to more than eight million per year by 2030, more than 80 per cent of those deaths will be in low- and middle-income countries such as Nigeria.

In developing countries generally, tobacco consumption is a policy issue because of the increasing health implications. Looking at the bigger picture of health and development, Nigeria is set to lose in the long run if it does not act quickly enough to stop tobacco consumption.

Addressing some of the policy issues and weaknesses as highlighted in the above analysis will go a long way towards achieving the goals of regulating tobacco consumption and therefore improving the health status and development of the country, and this makes it imperative that the legislature work relentlessly to strengthen the existing tobacco control laws through the instruments of regulations and amendments.
Gboremi Ogundipe is the Deputy Editor-in-Chief of the Unilag Law Review, with great interests in Mooting, MUNs, Arbitration and International law/diplomacy; and a dream to making notable contributions to current and evolving world problems, while most importantly touching the lives of women and children in more ways than one.