The Tobacco Control Bill is coming up for its first hearing in the coming week. In a previous instalment, I provided some reasons to our MPs as to why they should support the bill.
It is quite interesting to note that all our MPs (or at least those that are voicing their opinions in public that is) seem to be in favour of tobacco control legislation, at least on the surface.
This is to be expected, because no elected representative of the people would ever be able to take a stand against any form of legislation that may be harmful to health.
Many of them have campaigned on pro-health issues, or even issues related to health such as the environment. So one would find it extremely surprising if they were now seen to be unsupportive of such a strong pro-health bill.
However, some MPs have stated that while they are strongly in favour of tobacco control, they may not be supporting the bill due to other reasons such as illicit trade.
For health advocates, this is nothing but obfuscation. The scientific evidence of tobacco control legislation has been proven many times over in multiple countries.
To state that you would not be able to support such a pro-health bill due to illicit trade merely is an attempt to pay lip service and hide from people who are going to call you out on the issue.
For those who genuinely seem to be taken in by the illicit trade argument, here are some points to help you change your mind or perhaps to become less persuaded by invalid ideas and assumptions being put forward by others.
Point 1: Logic flaw of not supporting the Tobacco Control Bill because there will be a lot more illicit trade
If you paraphrased this argument this is how it sounds like: since it is difficult to arrest, prosecute and sentence killers, we should not even have a law that punishes murderers.
Or since it is difficult to prove and prosecute rapists, we should not have any law that punishes rapists. These are ludicrous propositions, and the logic flaw of such arguments need to be called out as I am doing now.
The truth of the matter is this; it is legal foundations such as laws that manifest society’s normative views on a particular issue or behaviour. Murder is something fundamentally wrong in the eyes of society, and the law provides the ability for authorities to regulate this among all of society’s members.
Enforcement of this law will include a multi-centric, multi-stakeholder approach, including the legal fraternity, police and others. If we envision that enforcement is going to be difficult; strategies to improve enforcement can and should be put in place- not a knee-jerk spinal reflex to not create and pass a law in the first place.
When the Tobacco Control Bill is passed, we know that we may face enforcement challenges. This is why the government has already pledged to strengthen enforcement and initiate other upstream and downstream measures to improve the situation including in building enforcement resources and capacity.
These come hand-in-hand with the passing of any new law, the Tobacco Control Bill included. Believing that since enforcement may be difficult, new laws should not be passed in the first place is just wrong.
Point 2: There is already widespread illicit trade, so supporting the Tobacco Control Bill is going to have little, if any impact on it
Going by the industry narrative, it is alleged that more than 80% of all tobacco products in Malaysia are from illicit trade. This means that there is an abundance of illicit supply in the market.
Detractors of the Tobacco Control Bill are adamant that passing the Generational End Game, where young Malaysians born after 2005 will not be able to utilise tobacco products, will cause illicit trade to increase. This is a flawed, false idea. Why?
First, when the bill is passed, individuals born before 2005, who are the entirety of the smoking population today, continue to smoke and purchase tobacco products – be it through legal or illegal sources. Nothing changes. So there will be no increase or decrease of the illicit trade.
The only visible impact will be in 18 years time, when the amount of existing smokers will have decreased to the point that hopefully, illicit trade would also have declined.
However, even if every single individual born after 2005 decides to illegally utilise tobacco products, an illicit market will be, at worst, only equal to our current illicit market. So there can never be a growth of the illicit market. The numbers speak for themselves. To allege otherwise is simply inaccurate.
Point 3: Illicit supply is most directly correlated with pricing; not illegality
The cooking oil, chicken and eggs pricing and subsequent illicit supply as highlighted in the media recently has shown us most clearly that illicit trade is directly driven by price, and not merely its legal supply alone.
All these items are available legally. However, due to price controls different parties have been engaged in illicit trade of these products. The illicit trade is really then dominated by price more so than anything else.
The moment an item goes up in price due to authoritative measures such as tax or price controls, an illicit market comes into being as people try to avoid paying these prices.
As the case of tobacco products themselves show, despite them being available legally today, there is still a huge illicit market as alleged by the industry itself.
While making these products illegal to those born after 2005 may make some purchase them illegally, the supply for these products by themselves does not need to be from illicit trade at all.
They can be legally obtained products, sold to purchasers who should not be able to buy them. As such, the illicit trade is not really tied to the legality or the illegality of products; but rather on the price points and the external controls placed on them.
Point 4: Through the Tobacco Control Bill, the illicit trade will actually reduce over time
One of the important elements within the Tobacco Control Bill and its overall implementation is the licensing and registration of retailers. Licensing and registering retailers will mean that for the first time in our country, only known retailers will be able to sell tobacco-related products.
This makes it so much easier for enforcement officials as they would now know where to locate illicit suppliers (since they are aware of where licensed suppliers are); and where the downstream supply of these products is going to.
Coupled together with increased enforcement capabilities (as promised by the government and the customs department), this should lead to a decrease in illicit trade over time – rather than an increase as alleged.
A projection of the future scenario in terms of illicit trade is depicted in the accompanying graphic.
In current conditions, both legal and illicit supply is available to all retailers, since there is no distinguishing element between legal and illegal retailers. In the future however, illegal retailers (those not licensed) will only be able to obtain illicit supply due to regulations in place to prevent purchase of legal supply. Due to their illegal status, these illegal retailers can be easily identified by the authorities.
Licensing and registering retailers will have a positive effect since legitimising their businesses will provide them with other incentives already in place for small businesses including in obtaining loans, credit terms and other benefits. Investments to open and maintain legitimate businesses will also, in the long run, disincentivise illegal retailers to procure and sell illicit tobacco products. This has worked in many different landscapes and businesses – making it quite likely to work in this case too.
For all these reasons, snuggling behind the smuggling premise as a reason to not support tobacco control makes little sense when you look at it objectively. So my dear MPs, please stop using this as an excuse to not support the Tobacco Control Bill.- FMT
The views expressed are those of the writer and do not necessarily reflect those of MMKtT
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