The Law Must Not Leave Loopholes for Tobacco Interests

The upcoming third review of the "Advertising Law (Revised Draft)" to be submitted to the Standing Committee of the National People's Congress stipulates that tobacco advertisements can be published indoors at tobacco product retail points, and tobacco product manufacturers can also send tobacco advertisements to sellers. "As long as there is a loophole for tobacco advertising and promotion, the tobacco industry will inevitably find ways to break through the dam, turning tobacco advertising into a raging flood," expressed Shen Jinjing, a representative of the National People's Congress and Director of the Disease Prevention and Control Center in Yancheng, Jiangsu Province.

■ Tobacco advertising must be completely banned
"If tobacco retail points cannot be included in the ban, prohibiting tobacco advertising and promotion will be mere empty talk," Shen said. Currently, the tobacco industry is taking advantage of legal loopholes or regulatory gaps to engage in extensive tobacco advertising and promotion, especially at tobacco retail points. Additionally, tobacco companies also use the guise of "social responsibility" to sponsor education, sports, culture, and other causes, which in essence is tobacco marketing, enticing more people to smoke.
Tobacco product retail points include specialty stores, image stores, demonstration stores, supermarkets, shopping malls, grocery stores, convenience stores, newsstands, and various public places. Currently, there are over 5.4 million tobacco retail points nationwide, densely distributed around schools.
Wang Longde, a representative of the National People's Congress and an academician of the Chinese Academy of Engineering, stated that the "Advertising Law" enacted in 1994 only prohibits tobacco advertising in five traditional media categories: "broadcasting, film, electric regulations, newspapers, and journals," and in four types of public places such as theaters. Therefore, for many years, outdoor tobacco advertising and disguised advertising have not been effectively banned, and with the emergence and rapid proliferation of new media such as the internet and mobile networks, tobacco advertising and promotion have become increasingly rampant.
Shen Jinjing noted that the second draft of the "Advertising Law (Revised Draft)" has expanded and increased the media, forms, locations of prohibited tobacco advertising, and the conditions that allowed tobacco advertising must meet. However, despite the progress in the second draft, it still fails to keep pace with the development needs of law and practice.
"If this loophole is opened, it will create countless contradictions for law enforcement by the business administration departments. Because the 'Advertising Law' prohibits all tobacco advertising in indoor and outdoor public places, but tobacco retail points are public places that the public can enter and are ubiquitous," Shen said.
Currently, the World Health Organization's "Framework Convention on Tobacco Control" has been in effect in China for nine years. Article 13 clearly requires that all contracting parties should prohibit all tobacco advertising, promotion, and sponsorship within five years after the convention comes into effect. (Continued on page 2) (Continued from page 1)
In response, representatives and committee members expressed that the best and most effective way to prohibit tobacco advertising is to clearly state "to prohibit all tobacco advertising, promotion, and sponsorship" without leaving any room for loopholes.
Wang Longde proposed that under the premise of "completely prohibiting all tobacco advertising, promotion, and sponsorship," the draft for public consultation should also add the following content: prohibit outdoor tobacco advertising; prohibit using cigarette packaging for advertising; prohibit tobacco companies from promoting tobacco advertising and promotion under the guise of supporting charity, public welfare, environmental protection, or corporate social responsibility; prohibit tobacco companies from sponsoring tobacco advertising and promotional activities in any form; films and TV dramas must not feature tobacco brand logos and related content, nor should they include smoking scenes that do not comply with national regulations.
■ Tobacco control legislation must break out of the "empty promise" dilemma
It is understood that although the "Convention" has been in effect in China for nine years, the legal guarantee environment for fulfilling the "Convention" is still lacking. Article 8 of the "Convention" clearly requires that parties should take legislative measures to prevent exposure to tobacco smoke in indoor workplaces, public transport, and indoor public places; Article 11 requires tobacco packaging to carry graphic warning labels; relevant provisions clearly state that minors should be protected from the harm of tobacco. However, to date, China has not yet formulated national laws and regulations for a smoke-free environment, although some provinces (cities) have introduced some local laws and regulations, but lack effective supervision and enforcement.
National Committee member and Deputy Director of the Acupuncture Institute of the China Academy of Chinese Medical Sciences, Yang Jinsheng, is particularly concerned about the issue of secondhand smoke. He suggested that the national level should quickly introduce the "Regulations on Controlling Smoking in Public Places," clearly define what constitutes a public place, implement strict enforcement, and link tobacco control work with the year-end assessments of government agencies and institutions, making it a key performance indicator for unit leaders, with a veto for units that are detrimental to tobacco control.
It is reported that currently, except for schools, hospitals, and government agencies, enterprises, tourist attractions, parks, stations, public transport, sports venues, shopping malls, hotels, and restaurants have not been prioritized for tobacco control work. As of the end of 2014, 16 cities in China had enacted tobacco control legislation, covering nearly 1/10 of the population. Yang Jinsheng believes that the timing for national-level tobacco control legislation is now basically mature, and he suggests that the "Regulations on Controlling Smoking in Public Places" be included in the State Council's first-class legislative plan and promulgated as soon as possible.
Furthermore, due to the lack of enforcement entities and a supervisory environment, the difficulty of enforcement is also a major dilemma facing tobacco control work in China. According to a relevant person in charge of the Beijing Municipal Health Committee, the city currently faces a severe shortage of supervisory law enforcement personnel for tobacco control. "The Municipal Health Office has only one person managing tobacco control; the tobacco control personnel in various districts (counties) are all part-time, effectively only half a person. In the city's resident population, there are 1.88 million smokers aged 15 and above, while the supervisory law enforcement force is merely a drop in the bucket."
Shen Jinjing pointed out that from the perspective of practical law enforcement, the implementation effect of tobacco control legislation is very poor, and the phenomenon of lax enforcement is very common. Operators and managers of public places often turn a blind eye to violations, and in many places, no fines have been issued for over a decade, making enforcement difficulties another major obstacle to advancing tobacco control work. He proposed that tobacco control legislation must break out of the "empty promise" dilemma and should adopt multiple measures, with public place owners, operators, and other units and individuals needing to consider the overall situation, reduce departmental interests, and form a joint enforcement effort.