Tobacco legislation reform

CONCLUSION

Foundation for Defense of the Nation based on the results of an examination of draft federal law No. 163560-6 “On protecting public health from the effects of second-hand tobacco smoke and the consequences of tobacco consumption” with comments on amendments to the relevant laws in the field of tobacco.

The Foundation for Defense of the Nation carried out an examination of the draft federal law No. 163560-6 “On protecting public health from environmental tobacco smoke and the consequences of tobacco consumption,” introduced by the Government of the Russian Federation (hereinafter referred to as the bill).

The bill is fully consistent with the Concept for the Implementation of the State Policy to Combat Tobacco Consumption for 2010-2015 (hereinafter referred to as the Concept), signed by V.V. Putin.

According to D.A. Medvedev, based on data from the Russian Ministry of Health and the World Health Organization, “Russia is the most smoking country in the world; we lose 400 thousand citizens a year due to smoking.” At the same time, according to the Russian Ministry of Health, the Russian budget loses about 1.2 trillion rubles due to problems caused by smoking; 80% of the country’s citizens are passive smokers.

The bill implements the provisions of Articles 41 and 42 of the Constitution of the Russian Federation, according to which every citizen has the right to protect their health and the right to a favorable environment. These rights form the basis of the legal status of the individual in the Russian Federation (Article 64 of the Constitution of the Russian Federation), the protection of these rights is the prerogative of the state. The bill defines the principles of legal regulation in the field of protecting public health from the consequences of tobacco consumption, the rights and responsibilities of citizens and legal entities in the field of protecting public health from the consequences of tobacco consumption.

When preparing the conclusion, suggestions and comments from the Public Chamber of the Russian Federation and representatives of public organizations were taken into account.

The bill under consideration was developed in order to protect public health from the effects of environmental tobacco smoke and the consequences of tobacco consumption, as well as the implementation of the Framework Convention on Tobacco Control of the World Health Organization (hereinafter referred to as FCTC), ratified by the Russian Federation on April 3, 2008.

An examination of the presented bill allows us to state that the bill contains comprehensive measures, the implementation of which is aimed at achieving the goal of the Concept and the FCTC, namely “creating conditions to protect the health of Russians from the consequences of tobacco consumption and exposure to tobacco smoke.”

Unlike the Federal Law of July 10, 2001 No. 87-FZ “On Restricting Tobacco Smoking,” the proposed bill does not focus on restricting smoking, but on protecting the health of citizens from environmental tobacco smoke and the consequences of tobacco consumption.

Among the fundamentally important features of this bill is also the fact that its norms clearly demonstrate the relationship between public and private interests: the state is interested in protecting and protecting the health of citizens from the harmful effects of tobacco, and the citizens themselves are interested in preserving their health.

This bill contains certain measures that are fundamental in the fight against tobacco (a ban on smoking tobacco is introduced in certain areas, premises and facilities, special conditions for the retail sale of tobacco products, education and awareness of the population about the dangers of tobacco consumption, as well as a ban on sponsorship and promoting the sale of tobacco products and other measures). These measures lay the foundation, define the essence, and indicate the direction for the implementation in Russian legislation of all provisions of the Concept and the FCTC.

The Nation's Defense Foundation supports the introduction of all the measures outlined in the bill and calls for its speedy adoption in the State Duma in three readings before March 2013.

One of the main measures aimed at protecting public health from environmental tobacco smoke, introduced by Article 11 of the bill, is the ban on smoking in public places. Currently, smoking is allowed in most indoor public spaces, which infringes on the rights and interests of the population.

According to the current law "On the Restriction of Tobacco Smoking", smoking is prohibited in workplaces, in urban and suburban transport, on air transport with a flight duration of less than three hours (on which smoking is already prohibited by decision of the airlines), in indoor sports facilities, and healthcare organizations , cultural organizations, on the territories and premises of educational organizations, in premises occupied by government bodies, with the exception of smoking tobacco in specially designated places for smoking tobacco.

Thus, the main achievement of Article 11 of the bill in relation to the current law is the exclusion of smoking rooms and thus the introduction of a 100% smoking ban in a number of places, especially in catering establishments and workplaces, given their highest attendance. At the same time, the current provision of Article 11 of the bill leaves a loophole for catering establishments, which can be renamed to any other establishments not listed in the bills, for example, “cigar clubs,” thus bypassing the bill after it comes into force.

Therefore, we propose to supplement part 1 of article 11 with paragraph 12 as follows:

“in premises intended to provide services in conjunction with meals.”

The Civic Chamber of the Russian Federation believes that the measures outlined in Article 11 of the bill, as well as the proposed amendment to the bill, can protect non-smokers from the consequences of inhaling second-hand tobacco smoke, significantly reduce the level of tobacco consumption by smokers and reduce the possibility of attracting new tobacco users.

A complete ban on smoking in restaurants, cafes and bars leads to an increase in the total income of restaurateurs, due to the fact that people more often eat outside the home, including with the whole family, etc. This is the case in Ireland, Norway, and those US states that introduced a complete ban on smoking in restaurants and bars, the turnover of these establishments increased by 5-10%. After the introduction of the law in 2006 in Buenos Aires, cafe income increased by 7-10%; studies conducted in the USA (in 30 states) showed an increase in the profits of cafes, restaurants and bars. Two years after the ban was introduced in Washington state, bar and restaurant revenues were $105.5 billion higher than expected.

Indeed, the short period of time of operation of isolated premises for smokers may not recoup the high cost of equipping isolated premises, but the purpose of this provision of the bill was not to create conditions for the organization of such premises after the entry into force of the law, but to preserve these already organized premises during the transition period.

Ventilation results in only a very small reduction in exposure to occupants. Thus, the most powerful ventilation systems can recirculate only a small part of the air. Air filtration is not able to filter out the numerous toxic substances contained in tobacco smoke. ASHRAE, the leading American association of ventilation professionals, has concluded that ventilation technologies cannot cope with all the harmful elements that make up tobacco smoke.

Thus, the requirement to install ventilation systems in smoking areas after the law comes into force should be rejected as an ineffective measure, which is also a trap set by the tobacco industry.

At the same time, we consider it necessary to shorten the time frame for introducing a complete ban on smoking in indoor public places until January 1, 2014. This will prevent more deaths and diseases in the coming years.

In our opinion, this period will be sufficient to prepare all organizations for a complete ban on smoking indoors, but at the same time it is critical given the timing of ratification of the FCTC. At the same time, we believe that hotels, like any public indoor places, should also be free from tobacco smoke, therefore we do not consider it advisable to maintain smoking rooms in them on a permanent basis. Introducing a complete ban on smoking in indoor public places is an urgent and immediate solution.

At the same time, it is worth reducing the time frame for introducing a ban on the retail trade of tobacco products with the display and demonstration of tobacco products in a retail facility, as well as the time period for introducing a ban on the sale of tobacco products in small retail outlets.

In this regard, we propose a number of changes.

Part 2 of Article 23 of the bill should be stated as follows:

“Clause 2,3,5 and 6 of Part 1 of Article 11, Parts 4 and 5 of Article 18, Parts 1, 2 and Clause 3 of Part 7 of Article 18 of this Federal Law come into force on January 1, 2014.”

Parts 3 and 4 of Article 23, paragraphs 1,3,4 of part 2 of Article 11 are excluded from the text of the bill, paragraph 2 of part 2 of Article 11 is recognized as paragraph 1 of the same part of the same article, paragraph 5 of part 2 of Article 11 is recognized as paragraph 2 of the same part the same article.

Public transport stops and pedestrian crossings are places where there are large crowds of people, including children and non-smoking adults.

In this regard, we propose to supplement paragraph 4 of part 1 of Article 11 with the following text:

“at public transport stops, above-ground and underground pedestrian crossings having a roof and limited on one or more sides by walls made of any material, regardless of whether they are temporary or permanent.”

Article 12 of the bill “Price and tax measures aimed at reducing demand for tobacco products” provides that in addition to increasing the excise tax on tobacco products, a minimum retail price for them will be established. The methodology for calculating minimum retail prices for tobacco products should provide for their annual increase at a level exceeding the consumer price index for food products.

Note that a similar method of price regulation is applied to alcohol. This provision is enshrined in Federal Law No. 171-FZ of November 22, 1995 “On state regulation of the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products and on limiting the consumption (drinking) of alcoholic products” (hereinafter referred to as Federal Law No. 171-FZ), and is an adequate additional barrier to its acquisition, including by minors.

According to the National Defense Fund, a high price for tobacco products is the most effective measure to reduce demand for them. As international experience shows, the high price of cigarettes reduces their overall consumption, as well as their availability for children, which in turn reduces the likelihood of developing tobacco addiction from childhood.

As has been shown, tobacco is a specific product that requires special regulatory conditions, and representatives of small retail trade are asked to either expand the area of ​​their premises or focus on any goods other than tobacco and alcohol.

Article 15 of the bill proposes to introduce measures to ban advertising, promotion of tobacco sales and sponsorship by tobacco companies. A complete ban on advertising and promotion of tobacco products, according to international data, significantly reduces the number of smokers and the number of cigarettes smoked. According to Article 13 of the FCTC, only “a complete ban on advertising, promotion and sponsorship will reduce the consumption of tobacco products.” According to paragraph 2 of Article 13 of the FCTC, each party “shall impose a complete ban on all advertising, promotion and sponsorship of tobacco products.” Russia should also introduce a complete ban on advertising, as provided for in the Concept.

The bill takes into account the ban on displaying tobacco products and the process of their consumption. The issue of a smoking ban in cinema is welcomed by the Defense of the Nation Foundation, but the guidelines for the implementation of Article 13 of the FCTC say that the ban on advertising and all types of promotion of tobacco should be complete. If the tobacco industry is left with a loophole, it will certainly devote its efforts to promoting tobacco through channels that remain not prohibited. The bill makes a distinction between audiovisual works intended for children and adults. While smoking is prohibited in works intended for children, a disclaimer is made in works intended for adults. Part 2 of Article 15 states: “Demonstration of tobacco products and the process of their consumption in newly created audiovisual works intended for adults, including television and video films, in theatrical performances, in radio, television, video and newsreels is not permitted. programs, as well as public performance, broadcasting, cable communication and any other use of these works, performances, programs that contain a demonstration of tobacco products and the process of their consumption, except when such action is an integral part of the artistic concept." This formulation is very vague and, in fact, makes it possible to include scenes of smoking in any work, explaining them with stress, depression, joy, grief and other reasons that prompted the characters to smoke. Such scenes are undoubtedly a way to promote the sale of tobacco products and should be prohibited. The only manifestation of smoking in cinema and television can be an adequate attempt to show the damage caused by smoking to an individual, family and society, which would not be offset by the positive qualities of smoking characters.

In addition, Part 3 of this article provides for the possibility of demonstrating smoking, taking into account information about the dangers. This gives the tobacco industry even greater opportunities to advertise tobacco products, subject to formal harm communication. At the same time, we consider it advisable to leave the possibility of showing anti-tobacco social advertising on television. Thus, we believe that all anti-tobacco information campaigns must be approved by the Ministry of Health of the Russian Federation.

Thus, it is proposed that paragraph 5 of part 1 of Article 15 be stated as follows:

"demonstration of tobacco products and the process of their consumption in newly created audiovisual works, including television and video films, in theatrical performances, in radio, television, video and newsreel programs, as well as public performance, broadcasting, and cable and any other use of the specified works, performances, programs that contain a demonstration of tobacco products and the process of their consumption."

Part 2 of Article 15 shall be deleted, Part 3 of Article 15 shall be considered part 2 of the same article.

In order to prevent double interpretation, amend part 2 of article 15, assigning to the Ministry of Health of the Russian Federation the right to approve anti-tobacco advertising.

Part 2 of Article 15 should be stated as follows:

"It is permitted to demonstrate tobacco products and the process of their consumption when informing the population about the dangers of tobacco consumption and the harmful effects of second-hand tobacco smoke in the media during information campaigns aimed at combating tobacco, approved by the federal executive body charged with the function of developing and implementing state policy and legal regulation in the field of health care."

Part 4 of Article 15 shall be recognized as part 3 of the same article.

One of the important measures proposed by the bill is a ban on the production, import and sale of non-smoking tobacco products, the display and demonstration of tobacco products at points of sale, the introduction of additional restrictions on places of sale of tobacco products, including a ban on trade in tents and kiosks in urban areas , a ban on sales via the Internet, imposing on the seller the obligation to require a document to establish the buyer’s age if there are doubts about his reaching the age of majority.

Clause 1 of Article 18 of the bill determines that “retail trade in tobacco products in cities and towns is carried out in stationary retail facilities with an area of ​​at least 50 square meters.” These requirements are similar to the requirements for the sale of alcohol by Federal Law No. 171-FZ, which has shown its effectiveness in reducing problems associated with alcohol consumption, as well as reducing sales of alcohol to minors. At the same time, a number of provisions of the bill require clarification and adjustment.

The wording “retail trade” can be used as a loophole for the sale of cigarettes “wholesale” in two packs. We propose to replace the wording “retail trade” in Article 18 with “trade”.

According to paragraph 4 of Article 18, “the sale of tobacco products with the display and demonstration of tobacco products in a retail establishment is prohibited.” A showcase with cigarettes in an attractively designed, colorful packaging is a large advertising stand. The location in the windows of outlets of tobacco products stimulates smoking and rushing to smoke citizens to acquire it.

The above norm fully complies with the provisions of the Law of the Russian Federation of February 7, 1992 No. 2300-1 "On the Protection of Consumer Rights", Article 10 of which stipulates that "the manufacturer (contractor, seller) is obliged to provide the consumer with the necessary and reliable information about goods (work, work, services), providing the possibility of their right choice. " It is emphasized that this should be such an information that allows the consumer to make the right choice when buying the appropriate goods. Part 2 of Article 10 of the this law contains the main criteria that constitute the content of the general information about the product, while the calculation and demonstration of the goods cannot be considered as the only form of ensuring the distribution of mandatory information. The price list in the trading floor and the packaging of the tobacco product, which, turning to the seller, the consumer will be able to familiarize themselves, also contain comprehensive information about the product.

Article 19 prohibits the sale of tobacco products by minors and minors, however, judging by the style of the article, the seller has excessive responsibility to determine the age of the buyer, who outwardly may be significantly older than his years.

The text of part 2 of Article 19 is posted as follows:

"If the seller has doubts about the buyer to achieve tobacco products of 35 years of age, the seller is obliged to demand an identity document from the buyer (including an identity document of a foreign citizen or stateless person in the Russian Federation) and allowing the buyer's age. List of relevant documents are established by the authorized by the Government of the Russian Federation by the federal executive body. "

Part 3 of Article 19 to state as follows:

"The seller is obliged to refuse the buyer to sell tobacco products, if the buyer has doubts about reaching him 35 years of age, and a document proving the identity of the buyer and allows him to establish his age is not presented."

In case of violation of a number of provisions of Article 22 of the Law, civil liability may occur. Based on this, we propose to state article 22 as follows:

"For violation of the legislation of the Russian Federation in the field of public health protection from the effects of the surrounding tobacco smoke and the consequences of tobacco consumption, disciplinary, administrative, civil and criminal liability in accordance with the legislation of the Russian Federation is established.

We consider it necessary to give the authority the state authorities of the constituent entities of the Russian Federation and local authorities to introduce additional restrictions and prohibitions of the sale of tobacco products, as well as additional restrictions and prohibitions of tobacco smoking in certain territories, in premises and facilities.

It is proposed to supplement Article 6 with paragraph 7 of the following content:

"The establishment of additional restrictions and prohibitions of the sale of tobacco products, as well as additional restrictions and prohibitions of smoking tobacco in certain territories, in premises and facilities."

It is also necessary to supplement Article 7 of paragraph 4 of the following content:

"The establishment of additional restrictions and prohibitions of the sale of tobacco products, as well as additional restrictions and prohibitions of smoking tobacco in certain territories, in premises and facilities."

The Foundation "Protection of the Nation" supports the introduction of all measures indicated in the bill and calls for its speedy adoption in the State Duma in three readings until March 2013.

However, the law will not work without amendments to a number of other laws, because this is a law of not direct action. That is, firstly, measures specified in the law will not be carried out if punishments are not established for violations of the indicated measures. Secondly, some provisions are spelled out in other laws that the basic bill refers to.

According to reliable research, the price of tobacco products seriously affects demand. It is necessary to increase excise taxes to 4000 rubles. per 1000 cigarettes. Thus, it is necessary to amend the Tax Code. An increase in excise taxes depends on the position of the Ministry of Finance of the Russian Federation.

We offer to make the following changes to Article 193 of the Tax Code regarding cigarettes and cigarettes:

accept from January 1 to December 31, 2014 inclusive the tax rate for cigarettes and cigarettes equal to 1,500 rubles per 1000 pieces + 8.5 percent of the estimated cost, calculated on the basis of the maximum retail price, but not less than 3,000 rubles per 1000 pieces;

To accept from January 1 to December 31, 2015 inclusive the tax rate for cigarettes and cigarettes equal to 2000 rubles per 1000 pieces + 9 percent of the estimated cost, calculated on the basis of the maximum retail price, but not less than 4000 rubles per 1000 pieces.

It is very important to prohibit not only direct, but also indirect tobacco advertising. It is necessary to amend the Law "On Advertising", this must be coordinated with the Federal Antimonopoly Service of Russia (FAS Russia).

We offer to make the following changes to Article 23 of the Federal Law "On Advertising":

Part 2 shall be stipulated in the following edition:

"Advertising tobacco, tobacco products and smoking supplies, including tubes, hookah, cigarette paper, lighters and other similar goods are prohibited."

Part 3 to recognize the strength.

Part 4 to recognize part 3 and state in the following edition:

"Carrying out advertising shares accompanied by distribution of samples of tobacco products is prohibited."

For the sale of cigarettes to minors, for smoking in electric trains there are no sufficient fines. Fines for the sale of minors should be high, up to the closure of the outlet. Fines are established by the Code of Administrative Offenses (Code of Administrative Offenses), and amendments to it must be coordinated with the Ministry of Justice.

Add Article 6.14. "Smoking in the wrong place", supplementing it part 1 of the following content:

"Smoking in the wrong place entails the imposition of an administrative fine in the amount of one thousand to five thousand rubles."

Part 3 of Article 11.17 shall be stated in the following edition:

"Smoking in wagons (including in the vestibules) of a suburban train, in places not installed for smoking on a local or long -distance train, or on a ship of sea or domestic water transport, or in a aircraft, with a flight duration of less than three hours, a warning or imposition entails a warning for less than three hours an administrative fine of one thousand rubles to five thousand rubles. "

Supplement Article 14.21. "Violation of the rules for the sale of tobacco, tobacco products and smoking accessories, including tubes, hookah, cigarette paper, lighters and other similar goods" The following content:

"1. Violation of the rules for the sale of tobacco, tobacco products and smoking accessories, including tubes, hookahs, cigarette paper, lighters and other similar goods, except in cases set forth in Punts 2 and 3 of this article, entails the imposition of an administrative fine on officials in officials the size of fifty thousand to a hundred thousand rubles with confiscation of this product - from two hundred thousand to three hundred thousand rubles with confiscation of this product.

2. Supply or retail sale of tobacco, tobacco products and smoking supplies, including tubes, hookahs, cigarette paper, lighters and other similar goods without properly executed goods transportation documents, without a certificate to the freight customs declaration or without a copy of the seals of the previous seals of the previous the owner (for imported products) or without a certificate of the consumer goods invoice (for domestic products) entails the imposition of an administrative fine on officials in the amount of four thousand to five thousand rubles with confiscation of alcohol and alcohol -containing products; on legal entities - from forty thousand to fifty thousand rubles with confiscation of these products.

2.1. The retail sale of tobacco, tobacco products and smoking supplies, including tubes, hookahs and other similar goods, if this action does not contain a criminal act, entails the imposition of an administrative fine in citizens in the amount of thirty thousand to fifty thousand rubles; for officials - from one hundred thousand to two hundred thousand rubles; on legal entities - from three hundred thousand to five hundred thousand rubles. "

To give the rights to municipalities to expand, for example, places where it is forbidden to smoke, it is necessary to amend the laws of the 131st-“On the General Principles of the Organization of Local Self-Government in the Russian Federation” and the 184th-“On the General Principles of the Organization of Legislative (Representative) and Representatives) executive bodies of state power of the constituent entities of the Russian Federation. "

We offer to amend the Federal Law "On the General Principles of the Organization of Local Self-Government in the Russian Federation" (Law on MSU) dated 06.10.2003 No. 131-ФЗ:

Part 1 of Article 14 should be supplemented with paragraph 25 of the following content:

"Introduction of additional restrictions on smoking and selling tobacco products in premises, in territories and facilities."

We propose to amend the Federal Law "On the General Principles of the Organization of Legislative (Representative) and Executive Bodies of State power of the constituent entities of the Russian Federation" No. 184-ФЗ:

Supplement part 2 of article 5 clause B of the following content:

"Additional restrictions on smoking and sale of tobacco products in premises, in territories and facilities are established."