Banning vaping
SKETCHES - Ana Marie Pamintuan (The Philippine Star) - November 22, 2019 - 12:00am

Being allergic to tobacco smoke, and all types of fumes, for that matter, I am one of those applauding President Duterte’s order banning vaping in public places.

Electronic cigarettes might smell nice, like fruits and menthol, but so do oil burner fragrance oils and fabric conditioners, which also trigger allergic rhinitis and respiratory infections in me. And as in tobacco smoke, I resent being assaulted with e-cigarette smoke wafting from vape shops and individuals who vape in public.

Duterte, who has acknowledged suffering from at least two illnesses related to his nicotine habit in his younger years, understands the health risks posed by smoking and second-hand smoke.

He has ordered a nationwide ban on smoking in public places. Now this has been followed by the vaping ban.

Implementing the ban is the tricky part. Confusion reigned on Day One of the ban on Wednesday. There is some debate on the legal basis for the ban, and Malacañang is still finalizing the executive order that Duterte had said would follow his verbal directive. Let’s hope the vaping EO won’t be as vague and confusing as the one designating Vice President Leni Robredo as co-chair of the Inter-Agency Committee Against Illegal Drugs.

The joke the other day was that Duterte, who was fulminating against Robredo during his late-night press conference, had actually wanted to ban the “VP” – but “vaping” was the word that came out of his mouth.

For the vaping industry, of course, the ban is no joking matter, especially because Duterte also ordered the “arrest” of violators.

*      *      *

EO 26 dated May 18, 2017, cited by the police, the Department of Health (DOH) and Department of Justice, orders the creation of “smoke-free environments in public and enclosed places.” It imposed a nationwide ban on smoking in public.

The EO invokes provisions of the Clean Air Act of 1999 or Republic Act 8749, which covers only enclosed spaces. RA 9211 or the Tobacco Regulation Act of 2003 is also invoked, but as the title implies, it covers mainly tobacco products.

EO 26 does not specifically refer to the new products that fall under the categories of vaporizers or electronic cigarettes, although some of these products also carry nicotine, which is present in tobacco.

It could be a gray area that the president of the republic can interpret in his own way. Duterte indicated as much in his announcement of the ban: he’s President and he is ordering its imposition.

So the Philippine National Police, which was specifically ordered by Duterte to carry out his order, dutifully did, saying the apprehension of those vaping in public would be in the nature of a warrantless arrest.

*      *      *

For some people, this brings to mind the campaign against idlers or tambays, which netted thousands of individuals for offenses that included loitering or walking around half-naked in public places, and yes, for smoking.

But the anti-tambay campaign, including the roundup of half-naked men getting some air outside their cramped shanties, was backed by numerous local ordinances.

In the ban on public vaping, Ferdinand Rodrigo, president of the Vapers Alliance Philippines, told “The Chiefs” last Wednesday on Cignal TV’s One News that some of their members reported having cops visiting vape shops and advising the operators to shut down.

Nowhere in his press conference did Duterte say anything about shuttering vape shops.

I wouldn’t mind a total ban on vaping. But I see the point in the argument of party-list Reps. Bernadette Herrera Dy of Bagong Henerasyon and Mike Defensor of Anakalusugan, who told The Chiefs that a total ban could simply drive vapers underground, even farther out of reach of public health and business regulators.

PNP spokesman Brig. Gen. Bernard Banac explained that public vapers would be apprehended, taken to a police station and recorded in the blotter, given a warning and then released.

This is not as benign as it sounds. The blotter is an official record of police activities. If there is a computerized version of the police blotter, an apprehension for violating the ban on public vaping can be on one’s record forever. It’s not a criminal record, but it could slow down processing of requests for clearances needed for employment, for example, or for a gun license.

*      *      *

Rodrigo told us that legal action was an option their alliance is considering. But at this point, it looks like the group has little appetite to take on Duterte. Especially after the President warned the courts not to interfere in his ban.

In fact the judicial intervention happened weeks ago. On Oct. 1, Judge Ira Fritzie Cruz-Rojo of the Manila Regional Trial Court’s Branch 67 issued a temporary restraining order, stopping the Food and Drug Administration from implementing an order of the DOH to regulate the vaping industry. Judge Teresa Soriaso of the Manila RTC followed suit weeks later with another TRO on the FDA.

The injunctions have remained in place despite the DOH report that it had recorded the first case in the country of a lung injury associated with e-cigarettes, involving a 16-year-old girl.

This case surely influenced Duterte’s decision to announce the ban, without waiting for the TRO to be lifted or for Congress to pass legislation curbing vaping.

The ban is in a legal gray area, with vague parameters for implementation, and Duterte’s warning to the courts undermines the authority and independence of the judiciary.

On the other hand, the order gets things done, cutting through legal efforts to stop the FDA from doing its job.

For now I’m sure I’m not the only one relishing the vape-free public spaces.

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