Anyone comparing the packets of tobacco products in Bangladesh and some other countries may notice that the packets in Bangladesh are awfully inadequate to give sufficient information about the constituent elements of tobacco products. The packets of tobacco products marketed in Bangladesh contain a basic statutory warning stating that smoking is injurious to the health and contains virtually no information on the proportion of harmful constituent elements. Thus, a consumer of tobacco products has no means to choose a less harmful tobacco product, even if she/he wishes to.
This trend is a violation of Article 11 of the World Health Organization's (WHO) Framework Convention on Tobacco Control, 2003 (the Convention). On 16 June 2003 Bangladesh signed the Convention and in the following year, it ratified the same. Article 11(2) of the Convention demands that “[e]ach unit packet and package of tobacco products and any outside packaging and labelling of such products shall, in addition to the warnings specified in paragraph 1(b) of this Article, contain information on relevant constituents and emissions of tobacco products as defined by national authorities.” Article 11(3) of the Convention provides that “[e]ach Party shall require that the warnings and other textual information specified in paragraphs 1(b) and paragraph 2 of this Article will appear on each unit packet and package of tobacco products and any outside packaging and labelling of such products in its principal language or languages.” This Convention does not provide any scope for reservation from any of its provisions, and hence, Bangladesh is under an international legal obligation to make sure that packaging of all tobacco products contains information on relevant constituents of tobacco products. Indeed, this absence of any scope for reservation connotes that the drafters of the Convention felt that in order to achieve the objectives of the Convention, it is necessary that all state parties implement all provisions of the Convention without any choosing and picking.
To implement the Convention, Bangladesh has passed the Smoking and Tobacco Product Usage (Control) Act, 2005. Preamble to the said Act explicitly declares that the Act is being introduced to implement the provisions of the Convention in Bangladesh. Unfortunately, the Act only requires the statutory warning to be included in the packets. Section 11 requires that the importer of a tobacco product, at the time of importing would furnish a report to the Government in which the amount of each element used in the imported product. However, even in this case, the law does not require that such information is contained in the packet of the product itself. As Sub-articles 2 and 3 of Article 11 of the Convention obliges the state parties to require tobacco manufacturers and sellers to contain information on the packets as to the relevant constituents and emissions of tobacco products in addition to the statutory warning, it is evident that Sections 10 and 11 do not fully comply with the packaging provisions as contained in the Article 11 of the Convention.
The absence of any information about the constituent elements of tobacco products would not allow numerous consumers of tobacco products to choose a less harmful product. Thus, this would deprive them of a chance to mitigate the adverse impact on their health resulting from consumption of tobacco products. This may arguably amount to a violation of the right to life as enshrined in Articles 31 and 32 of the Constitution. If we take note of some decisions rendered by the Supreme Court of Bangladesh, we would find that citizens of Bangladesh have been constitutionally guaranteed a right to life which includes the right to a healthy life.
For instance, the High Court Division (HCD), in Dr. Mohiuddin Farooque v Bangladesh (1996) 48 DLR (HCD) 438, at 442 has found a quite wide scope of the right to life and has observed that “right to life is not only limited to the protection of life and limbs but extends to the protection of health…maintenance and improvement of public health by creating and sustaining conditions congenial to good health.” Similarly, in Dr. Mohiuddin Farooque, Secy. General (BELA) v Bangladesh (2002) 22 BLD 534, at para 18, has underscored the importance of the constitutional pledge of the right to life and its integral nexus with the right to a healthy life. In Professor Nurul Islam v Bangladesh (2000) 52 DLR (HCD) 413, the HCD, even in the absence of a specific law, did not shy away from banning a promotional voyage of a tobacco company entitled 'Voyage of Discovery'. Thus, it is apparent that the state would have to be vigilant to protect the health of its citizens.
One may contend that as neither the Act nor any other law in force in Bangladesh demands that packets of tobacco products contain information as to its constituent elements, the Parliament deliberately omitted to give effect to Article 11 of the Convention. However, a textual interpretation of the Act would not support such a contention. The Preamble to the Act clearly states that the Act has been enacted to implement the provisions of the Convention in Bangladesh. As it does not refer to any parts of Convention, rather refers to the Convention in its entirety. The Act does explicitly oust the application of any part of the Convention in Bangladesh. Hence, it is natural to conclude that the Parliament wanted to apply all the provisions of the Convention. Moreover, as there is no inconsistency between the objective of the Convention and the Act, the provisions of the Convention should be applicable in Bangladesh. Hence, it would be fitting if the Government takes necessary measures to ensure that all tobacco manufacturers and sellers in Bangladesh be obliged to provide adequate information as to the constituent tobacco elements in their products so that consumers can make an informed choice.
The writer is an Associate Professor, School of Law, BRAC University.