The Manx Nationalist Party - Advocating Republican Independence since 1963
|The following submission was
the Isle of Man DHSS in response to views sought on proposed
anti-smoking legislation. November 2005.
The document should be read in conjenction with the DHSS's consultation
to draft control of tobacco legislation.
In summary, this appears to forbid the production and distribution of tobacco advertising in any form in the Island, except for purposes of advertising within the trade itself.
This excepts those who do not carry on business in the Island and advertise by internet and the production of advertising for such persons.
This does not appear to specify that such business may benefit from such advertising.
Accepting that the production of the advertising is for commercial gain, it seems to say that commercial gain from tobacco advertising is acceptable providing such advertising is not benefiting a person operating in the Isle of Man.
This shows an inconsistency of intent.
There is also the question of the sale, exchange etc., of antiques and memorobillia which may well include tobacco advertising. This must surely be exempted from the proposals.
Sections 2 and 3 appear to reinforce the aforementioned inconsistency by further excepting advertising production etc when the Isle of Man is not the primary market.
Section 5 appears to give the Department unilateral power to dictate the nature of advertising, display etc on premises on an individual basis.
Section 6 - 1 - Too many "ifs" in first line - draughting error?
Section 8. This is too vague and open to abuse in both directions.
Section 9 - Enforcement. Should the OFT be doing this?
Section 10 - Powers of entry. This gives yet another group of people to gain entry to premises on, essentially, their own authority. There must be clear prima face evidence of transgression.
Section 11 - Similarly.
Section 12 - That this fundamental premise of justice needs to be stated reveals the desperate lack of fundamental, constitutionally recognised human rights in the Island.
This is what we consider to be the most important part of the proposals yet receives the least attention.
19. What does this mean and what is its intention?
20 (1) is very confused and appears to require correction if smoke from cooking or striking a match or burning a candle is not to become subject to the legislation. We suggest:
"In this Part, 'smoke' means smoke from tobacco, or any substance or mixture which includes smoke from tobacco in a form where it may reasonably be expected to be inhaled or ingested by anyone using the premises in a normal fashion. A person is to be taken as smoking if the person is holding or otherwise in possession or control of tobacco and producing tobacco smoke as defined in this paragraph."
The handing of substantial powers to the Department to define so many critical aspects of the legislation is very dangerous and will undoubtedly lead to inconsistency of application and confusion. It takes powerful prescriptive powers with broad latitude of interpretation out of the hands of elected representatives and puts it in the hands of civil servants and officers.
The lack of definition of "tabacco product" causes problems. If branded products are intended, then this should be stated. Loose leaf tobacco is a tobacco product and, as such, a person producing or wearing a T-shirt, poster or such like stating something like "See it, roll it, smoke it" or "Cigarettes are good" can be deemed guilty of an offence. This is an infringement of freedom of expression. Any film containing images of people smoking could be deemed to be illegal.
The draft apparently seeks to prevent tobacco advertising in the Isle of Man to the length of making it illegal to even make an advert on someone's behalf. Such prohibition is not intended where the advert is not for consumption in the Isle of Man.
It apparently accepts that the inconvenience that may result of applying the law consistently to publications not primarily intended for the Isle of Man and, in doing so, actively seeks to disadvantage publications produced for the Isle of Man. The whole thing smacks of double standards and hypocrisy.
We reiterate our original submission, which seeks to protect people from passive smoking. This document seeks to go a lot further and ventures into territory where ethical arguments must be addressed before leaping into proscriptive legislation.
To absolutely ban tobacco product promotion on such a broad scale is to effectively say that adults are not capable of making up their own minds on such issues. To then completely negate this where the source of advertising is not under the immediate influence of the Department and to further compound an ethically dubious stance with the exceptions given renders the proposals as unsupportable.
The proposals go so far beyond the question of passive smoking as to suggest a desire by the Department to completely suppress smoking. This being the case, it should take the courage of its convictions and propose the outlawing of tobacco and its products in the Island.
Though lacking any solid definition, Part Two effectively means that a smoking room would be illegal. A smokers' club would be illegal. This puts the legislation firmly in the arena of protecting people from themselves, rather than from others.
This presents us with the already unpleasant site of smokers congregating in the public street to indulge their habit in full view of children. Surely this cannot be the desire of the Department.
We believe, to be more practical, ethical and consistent, the the legislation should be redraughted with the following sole objectives:
That people be protected from unwanted passive smoking by making smoking illegal in enclosed public places other than those designated as smoking rooms / areas. A requirement for certain ventillation standards may be incorporporated for such designated spaces.
Advertising of branded tobacco products in public places e.g. bill-board posters, signage etc. can reasonably be made illegal.
The banning of incidental tobacco advertising through sponsorship and public broadcast advertising can reasonably be made illegal. That should, however, prevent a person or business that deals in tobocco products from sponsorship as long as the product itself is not referred to.
Beyond that, however, the moves become impractical and inconsistent in application.
Whilst tobacco remains a legal, even if controlled substance, there can be no reasonable argument for preventing its display and advertising within places licensed for its sale. As long as it will be legal to carry a tobacco advertising in publications available in the Isle of Man, it is inconsistent and hypocritical to ban it in those which the Department feels it has the power to do so.
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