PLC Paper No. CB(2) 198
(These minutes have been seen
by the Administration and
cleared with the Chairman)
Ref : CB2/BC/19/96
Minutes of the Fourth Meeting of the Bills Committee on
the Smoking (Public Health) (Amendment) Bill 1997 and
the Smoking (Public Health) (Amendment) (No. 2) Bill 1997
held on Thursday, 12 June 1997 at 2:30 pm
in Conference Room A of the Legislative Council Building
Members Present :
Hon Christine LOH (Chairman)
Hon Mrs Selina CHOW, OBE, JP
Dr Hon LEONG Che-hung, OBE, JP
Dr Hon Philip WONG Yu-hong
Hon CHAN Wing-chan
Hon Andrew CHENG Kar-foo
Hon Paul CHENG Ming-fun
Dr Hon LAW Chi-kwong
Hon MOK Ying fan
Members Absent :
Hon Ronald ARCULLI, OBE, JP
Hon Michael HO Mun-ka
Dr Hon HUANG Chen-ya, MBE
Hon Eric LI Ka-cheung, OBE, JP
Hon James TIEN Pei-chun, OBE, JP
Hon CHOY Kan-pui, JP
Hon NGAN Kam-chuen
Public Officers Attending :
- Mr Gregory LEUNG, JP
- Deputy Secretary for Health & Welfare
- Mr Derek GOULD
- Principal Assistant Secretary for Health & Welfare
- Mr John WONG
- Senior Assistant Law Draftsman (Acting)
- Miss WONG Yuet-wah
- Assistant Secretary for Health & Welfare
Clerk in Attendance :
- Ms Doris CHAN
- Clerk Assistant Secretary CAS(2)3
Staff in Attendance :
- Mr LEE Yu-sung
- Senior Assistant Legal Adviser
- Miss Flora TAI
- Senior Assistant Secretary (2)3
I. Information for members to note
The Chairman informed members that: (a) the Secretariat had as at 11 June 1997 received 362 signature cards supporting a total ban on tobacco advertising and promotion, and/or designation of non-smoking areas in all public places including restaurants; and (b) the Asia Television Limited, Television Broadcasts Limited, Satellite Television Asia Region Limited and Wharf Cable Limited had set out their general position and specific position on the Bills in their letter dated 11 June 1997, issued vide LegCo Paper No. CB(2) 2666/96-97. Members also noted the following papers which were tabled at the meeting -
- a further submission from the Tobacco Institute of Hong Kong Limited
(LegCo Paper No. CB(2) 2696/96-97);
- a letter dated 11 June 1997 from Philip Morris Hong Kong Limited
(LegCo Paper No. CB(2) 2699/96-97 (01)); and
- a selection of published reports on the effects of advertising and sponsorship on initiation of smoking in young people and the effectiveness of advertising bans and other control measures compiled by Dr C L BETSON, Professor J M MACKAY and Professor A HEDLEY
(LegCo Paper No. CB(2) 2699/96-97 (02)).
2. The Chairman also informed members that Hon LEUNG Yiu-chung was considering moving amendments to the No. 2 Bill. In this connection, Senior Assistant Legal Adviser explained that the proposed amendments were on clause 11 and clause 14(c) of the No. 2 Bill. The effect was apparently to allow display of tobacco advertisement when the tobacco company was the sponsor of a event, and to refine the meaning of tobacco advertisement respectively. The Chairman suggested and members agreed that Mr LEUNG should be invited to explain his proposed amendments to the Bills Committee at the next meeting if possible. Members subsequently noted that Mr LEUNG was unable to attend the meeting.
Bill of Rights implications
3. As regards the case of RJR - MacDonald Inc. v. Canada(Attorney General), the Chairman asked and Senior Assistant LegalAdviser briefed members that the case concerned with a total ban on tobacco advertisement. He pointed out that the Canadian Supreme Court had ruled that: (a) the legislature had the competence to pass legislation banning tobacco advertisement for the protection of public health; and (b) having regard to the wording of the constitution of Canada, a total ban was not sufficiently justified on the facts of the case. However, Senior Assistant Legal Adviser reminded members that the wording of the Canadian Charter of Rights and Freedoms was slightly different from the Hong Kong Bill of Rights. In this connection, Mrs Selina CHOW requested that the Administration should state its stance clearly in relation to the implication of the case and to the total ban as proposed by the No. 1 Bill in particular. Mr Gregory LEUNG undertook to respond at the next meeting. However, he reiterated that it was the Attorney Generals Chambers view that the proposed restrictions in the No.2 Bill were permissible because they might properly be considered necessary for the protection of public health within the meaning of Article 16(3) of the Hong Kong Bill of Rights. The Chairman therefore suggested and members agreed that the issue of Bill of Rights implications would be discussed at the next meeting.
4. Having regard to the time constraint and the practical difficulties of examining the two Bills simultaneously, the Chairman asked and Dr LEONG Che-hung proposed that the No. 2 Bill should be used as a basis for discussion. Members noted that Dr LEONG would propose amendments to improve the provisions of the No.2 Bill and if his and other members proposals could make the Bill more effective in fulfilling the intended purposes of the No. 1 Bill, he would consider withdrawing the No. 1 Bill. Members supported the proposal and the Bills Committee therefore proceeded to discuss the main proposals of the No. 2 Bill. The gist of the deliberation is summarized in the following paragraphs.
Prohibition of display of tobacco advertisements
5. Mr Gregory LEUNG informed members that a two-year grace period would be granted period would be granted prior to implementation of the display ban. He acknowledged that some of the existing contracts may have yet to run out even at the end of this grace period but it would be unreasonable to delay implementation further. Public interest had also to be taken into account. The Chairman asked and Mr LEUNG explained that the Ordinance would come into operation on a day to be appointed by the Secretary for Health and Welfare by notice in the Gazette. Mr John WONG added that different commencement dates could be appointed for various provisions of the Ordinance. In this regard, Dr LEONG Che-hung asked whether the Administration had considered the implication on existing contractual obligations. He remarked that the period might be too long from the viewpoint of public interest. Mr LEUNG responded that two year was a reasonable period which had already struck a balance between public interest and the spirit of honouring contracts. Mr Derek GOULD supplemented that it was unrealistic to wait until all existing contracts had run out. The Chairman asked and Mr GOULD responded that it was the normal practice to allow a grace period for similar legislation in overseas jurisdictions. Mrs Selina CHOW requested the Administration to provide concrete examples for members reference. In this regard, Senior Assistant Legal Adviser drew members attention to the Tobacco Products Control Act in Canada which allowed a grace period of two and a half years. Mrs CHOW maintained that it was unfair for the Administration to set the grace period arbitrarily without giving regard to the impact on the existing contractual obligations. The Administration should therefore have consulted the industry and sought relevant information regarding the normal duration period of advertisement sign contracts.
6. Mr Philip WONG expressed concern that the Bill might set a bad precedent to make existing contracts voidable as it was of primary importance to respect contractual obligations in a free economy. Mr MOK Yin-fan shared a similar view. He cautioned that the provision would have implication on contracts other than advertisement sign contracts. However, Mr Andrew CHENG opined that under common law any contracts rendered illegal or unenforceable due to change of legislation would become voidable contracts. Mr John WONG and Senior Assistant Legal Adviser confirmed Mr CHENGs view by saying that in such a case both sides would no longer be bound to perform their obligations under the contract. Mr CHENG also reminded members that it was not uncommon for the LegCo to pass legislation which affected existing contracts.
7. The Chairman then invited views from members as to whether display of any tobacco advertisement in writing or other permanent or semi-permanent form should be prohibited as a matter of policy. Mrs Selina CHOW accepted that such kind of display should be phased out eventually on the condition that a reasonable grace period would be allowed. In view of the fact that members agreed in principle that display of tobacco advertisement should be banned in the long run, Dr LEONG suggested that the Administration should gather information about the duration of existing contracts so that an acceptable grace period could be set. In response to the Chairmans enquiry, Mr Gregory LEUNG explained that it was difficult to set a cut-off date to allow natural termination of all existing contracts. However, Mrs CHOW disagreed. She held the view that the Bill could, in addition to the grace period, allow natural termination of contracts which were in existence at the time of the enactment of the Bill. Mr LEUNG expressed concern that: (a) it might create a loophole so that contracts with very long duration would be signed before enactment of the Bill; and (b) there would be difficulties in implementation as some advertisement signs could still be legal after the grace period had lapsed. In this connection, Mr John WONG reminded members that the Bill even if enacted would not have any legal effect until a commencement date had been appointed. After discussion, members asked and Mr Gregory LEUNG agreed to address members concern at the next meeting and if possible prepare Committee stage amendments for consideration.
8. Dr LEONG Che-hung raised the issue about definition of advertisement display for discussion. Mr Gregory LEUNG clarified that display of tobacco products at the point of sale was permissible as the purpose was not for advertising but for selling only. However, display of an umbrella showing the brandname would be considered as an advertisement and thus would be prohibited. Dr LEONG agreed with the Administrations position. However, the situation of small individual retailers might warrant special consideration. He also opined that the drafting of the relevant provisions should be improved in order to avoid any confusion. Mrs Selina CHOW asked whether the Administration would consider permitting display of advertisement at point of sale having regard to the plight of small individual retailers and the fact that people approaching the point of sale were normally smokers. Dr LEONG was concerned that an overall exemption would not be feasible as the term "point of sale" could be interpreted widely. Mr LEUNG cautioned that as point of sale included convenience stores and supermarkets etc, such an exemption would give rise to implementation difficulties and loopholes. In response to members query about the definition of advertisement, Mr John WONG drew members attention to section 14 of the principal Ordinance regarding the meaning of tobacco advertisement which was limited to any express or implied inducement or announcement. According to his interpretation, display of an umbrella showing the brandname only was not an advertisement. However, Senior Assistant Legal Adviser was of the view that display of an umbrella showing the brand name of cigarettes at the point of sale might be regarded as a tobacco advertisement within the meaning of the existing section 14 of the principal Ordinance since they could be perceived as a suggestion to smoke. After discussion, Dr LEONG Che-hung informed members that he would propose an amendment in this respect to accommodate the small group of small individual retailers for members consideration. Members also noted that Mrs Selina CHOW would propose an amendment to allow display of advertisement at point of sale.
9. With reference to proposed section 12(2), Mr Andrew CHENG was concerned that manufacturer of tobacco products might make use of the exemption by appointing all retailers as wholesale dealers so that tobacco advertisement could be displayed at their premises. Mr Gregory LEUNG explained that display of tobacco advertisement at the premises of manufacturers or wholesale dealers were allowed because the public would not be able to see the display. In response to Mr CHENGs enquiry, Senior Assistant Legal Adviser explained that a loophole was unlikely in the light that: (a) the display had to be not visible from outside the premises; and (b) the meaning of a wholesale dealer was clearly that he could not be a person who sells a product directly to a consumer. Mr John WONG added that the tobacco advertisement would only be exempted if it was for the purpose of dealing by wholesale in tobacco products.
10. Mr Andrew CHENG and Mr Paul CHENG also queried why exemption to bear a health warning or the tar and nicotine yield should be granted under proposed section 12(3). Mr Derek GOULD explained that a distinction had been made between a trade advertisement and an advertisement to the public. Exemption to bear a health warning was given because it was considered a trade advertisement. Mr CHENG opined that such an exemption could not be justified as young people might work in these premises as well. He was of the view that the requirement for health warning and tar and nicotine yields should extend to tobacco advertisements in the premises of any manufacturer of tobacco products or any wholesale dealer of tobacco products in order that the staff concerned might also be made aware of the warnings and for consistency with other advertisements. Mrs Selina CHOW held a different view. She pointed out that rigid application without exemption would create unnecessary restriction and operational difficulties to the trade. In this regard, Senior Assistant Legal Adviser commented that the exclusion in this case was reasonable because, as he saw it, the intent was to cover the display of brand name not for the purpose of advertising. In this connection, Mr Andrew CHENG informed members that the Democratic Party might consider moving an amendment to proposed section 12(3). The Chairman also asked the Administration to consider possible amendments to address members concerns.
Tobacco advertisements in printed publications
11. Mr Gregory LEUNG pointed out that the Bill only proposed minor changes to tobacco advertisements in printed publications. Clause 10 repealed the exemption to bear a health warning granted under section 11 to local newspapers with a circulation in Hong Kong which was less than 10 000 copies and which constituted not more than 20 per cent of the papers total circulation. An overall exemption would be given to printed publications for circulation entirely outside Hong Kong. He further explained that: (a) in addition to the health warning already required, the advertisements would be required to show the tar and nicotine yields instead of the tar group designation; and (b) any person caused such advertisement to be published would also be held responsible.
12. Dr LEONG Che-hung considered that as the proposed arrangement was not much different from the existing arrangement, it would not be able to meet the tobacco-advertising-free target by Year 2000 set by the World Health Organization Western Pacific Region. He therefore asked and Mr Gregory LEUNG responded that the Administration preferred to adopt a gradual approach with no specific timetable set for the next move. The Administration needed time to review and to decide the pace. In this regard, Dr LEONG expressed disappointment at the lack of commitment on the part of the Administration to meet the 1999 deadline to achieve the tobacco-advertising-free target. Dr LEONG held the view that a ban on tobacco advertisements in printed publications by 31 December 1999 was necessary and would move an amendment to such an effect. He supplemented that his proposed amendment would not have much impact on the contractual obligation as advertisement contracts in printed publications were normally of a short duration. Mr Andrew CHENG informed members that the Democratic Party supported Dr LEONGs proposed amendment. However, Mrs Selina CHOW said that she preferred the gradual approach as proposed by the Administration
Giving-away of gift items at point of sale for tobacco product
13. Mrs Selina CHOW informed members that retailers of cigarettes had been hard hit by competition from contraband cigarettes and one way to increase their competitiveness was giving-away of gift items such as a lighter to consumers. Mrs CHOW pointed out that a person who approached the point of sale would already have the intention to buy cigarettes. She therefore urged the Administration and members to allow giving-way of gift items at point of sale. In response, Mr Gregory LEUNG said that the Administration was committed to fight against contraband cigarettes. However, the Administration was of the view that giving-away of these gift items might attract more people to smoke and thus should be prohibited. Dr LEONG said that he would consider Mrs CHOWs proposal but cautioned that it was a matter of law enforcement to combat contraband cigarettes. Mrs CHOW stressed that the problem of contraband cigarettes should not be ignored and selling of cigarettes was a legitimate business. Retailers should not be prevented from protecting their business. In this regard, members noted that Mrs CHOW might move an amendment to exempt giving away of gift items at the point of sale.
Meaning of tobacco advertisement
14. Mr Gregory LEUNG informed members that clause 14 only sought to refine the meaning of tobacco advertisements and to provide exemption. Members noted that: (a) proposed section 14(1)(c) would include any action which illustrated or mentioned smoking or cigarettes in the meaning of tobacco advertisement; and (b) proposed section 14(2)(iii) would allow the name of any company or body corporate associated with the manufacture or marketing of tobacco product to be used as the sponsor of an event. Mr LEUNG explained that the existing arrangements would be followed so that any name identified with the trade name in association with any product not being tobacco could be used as the sponsor of an event. In response to Dr LEONG Che-hungs enquiry, Mr LEUNG cautioned that many trade names were associated with other non-tobacco products and their right to advertise should not be deprived of and it would be difficult to set a rigid guideline. It would therefore have to be judged on the basis of each case, depending on the way of presentation. Mr Andrew CHENG expressed concern that it might create problem about burden of proof in the future. He therefore suggested the Administration to refine the provisions to avoid grey area as much as possible.
15. In response to the concerns expressed by the electronic media about appearance of a smoking act, Mr Gregory LEUNG pointed out that proposed section 14(3) had clearly stated that any accidental or incidental appearance of any tobacco product or the trade mark where no valuable consideration had been or was intended to be given for such appearance was not a tobacco advertisement. In this connection, the Chairman asked whether the Administration would consider the amendments proposed by the electronic media (LegCo Paper No. CB(2) 2666/96-97 referred). Mr LEUNG maintained that proposed section 14(3) had already provided sufficient protection and thus further amendments were not necessary.
16. Mr Andrew CHENG expressed concern that tobacco company might make use of the new section 14(2)(iii) which allowed the name of any company or any name associated or identified with any tobacco products to be used as the sponsor of an event or in congratulating another person or thing on an achievement. He therefore queried the need for the provision relating to congratulating another person or thing on an achievement. Dr LEONG Che-hung pointed out that such a provision might be abused to promote the name of a company which did not associate with products other than tobacco product. In response to Dr Philip WONGs enquiry, Mr John WONG said that new section 14(1)(1A) provided that an advertisement was not regarded as a tobacco advertisement if its purpose was to discourage smoking. However, an advertisement would be regarded as a tobacco advertisement if it had a hidden purpose to encourage smoking. Mr Gregory LEUNG said that the Administration would retain the provision but might consider further amendment to ensure effectiveness in implementing the relevant provisions if circumstances made it necessary. In this connection, Dr LAW Chi-kwong informed members that the Democratic Party would consider: (a) deleting the provision as it served no purpose for the good of the society; and (b) moving amendment to refine the meaning of tobacco advertisement in a more definitive manner, particularly in relation to proposed section 14(1)(c). In response to the Chairmans enquiry, Senior Assistant Legal Adviser agreed that the definition in proposed section 14(1)(c) was not very clear. He suggested members to consider including the exemption of subsection 3 in proposed section 14(1)(c) so as to ensure certainty. The Chairman then asked and Mr John WONG responded that an announcement mentioning only the name of a company of tobacco product would not be considered as tobacco advertisement as it did not mention about smoking. Mr LEUNG added that the wording in proposed section 14(1)(c) was not new and only the phrase "unless the contrary is proved" was deleted from the existing section for the purpose of avoiding any uncertainty. Dr LAW also remarked that proposed section 14(2)(b)(i) seemed to be redundant. The Administration undertook to consider this drafting point.
Designation of no smoking area
17. Mr Gregory LEUNG explained that clause 3 of the Bill empowered the manager of any premises specified in Schedule 4 to designate any such premises or part thereof as a no smoking area. The premises included in Schedule 4 were restaurants, department stores, shopping malls, supermarkets and banks. The manager of such premises would have the legal power to request any person who smoked in no smoking area to leave and to take legal action against such person. Dr Philip WONG expressed reservation that burden of enforcing the law was shifted to the citizens. Mr LEUNG responded that in the existing Ordinance, managers of, for example, public transport carriers, were already given this power to enforce the no smoking requirement inside public transport carriers.
18. Mr Andrew CHENG asked what principle did the Administration adopt in drawing up Schedule 4 and whether karaokes should be included as well. In response, Mr Gregory LEUNG explained that: (a) the principle was to avoid non-smokers being affected by second-hand smoking, thus public places and enclosed areas were included; and (b) karaokes would be included if they had a restaurants license. Mr John WONG supplemented that section 6A(4) of the principal Ordinance had already defined a restaurant as one licensed pursuant to the Public Health and Municipal Services Ordinance (Cap. 132). Mr LEUNG undertook to consider including karaokes in Schedule 4. Mr CHENG further suggested that some office premises visited by the public should be included because the public might very offen need to visit law firms and accountants firms. Mr LEUNG expressed reservation about the suggestion because it might intrude into private premises. However, he undertook to consider the suggestion. Mr CHENG cautioned that many areas included in Schedule 4 were private premises as well. In this connection, Mr John WONG pointed out that it might create a drafting problem in relation to the definition of workplace. More time would be required to refine the definition.
19. Dr LAW Chi-kwong sought the Administrations view on the proposal to extend the designated no smoking areas to cover any hospital, clinic, educational institute, child-care institute, children playground, airport in the No. 1 Bill. Mr Gregory LEUNG undertook to consider including these areas in Schedule 4. However, he pointed out that the Hospital Authority had already been empowered to designate no smoking area in public hospitals and the Civil Aviation Department also had similar powers over Kai Tak Airport Passenger Terminal. Mr Andrew CHENG then asked and Mr LEUNG said that there would be difficulties in implementation if these areas were to be included in Schedule 2 because prohibition to smoke would be applied rigidly in every part of these areas. Dr LEONG Che-hung remarked that it could specify in Schedule 2 that only public areas were to be covered. In addition, specifying the areas in Schedule 2 might make it easier for the manager to enforce the no-smoking rule. In order to include restaurants in Schedule 2, Dr LAW Chi-kwong further asked the Administration to consider allowing the manager to designate smoking areas for use on the condition that these areas had independent ventilation system. Mr John WONG cautioned that a manager might make use of the loophole to designate 90% of the area in a restaurant as smoking area. He therefore was of the view that more time was required to refine the concept of designated no smoking area. Mr LEUNG added that problems in implementation needed to be carefully considered In this regard, the Chairman remarked that the Administration should consider any further proposals for future implementation if it was committed to discourage smoking.
Removal and disposal of tobacco advertisement
20. With reference to the concern expressed by a deputation that clause 15 seemed to confer excessive power on the Secretary for Health and Welfare to remove and dispose of any tobacco display or advertising structure which existed in contravention of the Ordinance, Mr Andrew CHENG asked and Mr Gregory LEUNG informed members that the Administration was considering an amendment to improve the provisions to the effect that due process would be required. He undertook to prepare a Committee stage amendment for members consideration at the next meeting.
21. Mr Gregory LEUNG explained the other proposals in the Bill to members including the prohibition of sale of cigarettes in a packet of less than 20 sticks, the prohibition of the use of vending machines for selling tobacco products, the restriction of the use of tobacco product in promotional activities, and other restrictions on the selling of tobacco products. In this regard, members indicated support for these proposals. In response to Dr LEONG Che-hung, Mr LEUNG said that the proposed section 15A(2) would prohibit giving a tobacco product to any person for the purposes of promotion or advertisement. Mr LEUNG added that the Bill would also prohibit the use of certain words which implied a cigarette had a low tar yield, unless it had a tar yield of 9 milligrams or below. He explained that the purpose was to avoid using brand name to mislead consumers despite the fact that the tar content would be specified on the cigarette packet.
III.Any other business
22. The Chairman reminded members that 13 June 1997 was the deadline date to give notice of Committee stage amendments. Members noted that the Presidents approval to waive the notice requirement would need to be applied individually with justification. The President would consider such requects on a case-by-case basis. In this connection, Dr LEONG Che-hung pointed out that reasonable time should be allowed for members to consider the Committee stage amendments so that they would have a chance to move further amendments, if necessary.
IV.Date of next meeting
23. The Chairman reminded members that the next meeting would be held on the following day from 8:00 am to 10:30 am in the Chamber to discuss the Committee stage amendments to be proposed by the Administration and members.
24. There being no other business, the meeting ended at 6:00 pm.
Provisional Legislative Council Secretariat
24 July 1997
Last Updated on 20 October 1997