Tobacco Control Act of Bhutan 2010
Encyclopedia
The Tobacco Control Act of Bhutan
Bhutan
Bhutan , officially the Kingdom of Bhutan, is a landlocked state in South Asia, located at the eastern end of the Himalayas and bordered to the south, east and west by the Republic of India and to the north by the People's Republic of China...

 (Dzongkha: འབྲུག་གི་ཏམ་ཁུ་དམ་འཛིན་བཅའ་ཁྲིམས་ཅན་མ་; Wylie
Wylie transliteration
The Wylie transliteration scheme is a method for transliterating Tibetan script using only the letters available on a typical English language typewriter. It bears the name of Turrell V. Wylie, who described the scheme in an article, A Standard System of Tibetan Transcription, published in 1959...

: 'brug-gi tam-khu dam-'dzin bca'-khrims can-ma) was enacted by parliament
Parliament of Bhutan
The Parliament of Bhutan consists of the King of Bhutan together with a bicameral parliament.Constitution: Art. 1, § 3; Art. 10 This bicameral parliament is made up of an upper house, the National Council and a lower house, the National Assembly.Constitution: Art. 11; Art...

 on June 16, 2010.Tobacco Control Act (TCA): § 1 It regulates tobacco and tobacco products, banning the cultivation, harvesting, production, and sale of tobacco
Tobacco
Tobacco is an agricultural product processed from the leaves of plants in the genus Nicotiana. It can be consumed, used as a pesticide and, in the form of nicotine tartrate, used in some medicines...

 and tobacco products
Tobacco products
After tobacco has been processed, it is used to produce a number of different products.- Chewing tobacco :Chewing is one of the oldest ways of consuming tobacco leaves. Native Americans in both North and South America chewed the fresh leaves of the plant, frequently mixed with lime. Modern chewing...

 in Bhutan. The Act also mandates that the government of Bhutan provide counseling and treatment to facilitate tobacco cessation
Smoking cessation
Smoking cessation is the process of discontinuing the practice of inhaling a smoked substance. This article focuses exclusively on cessation of tobacco smoking; however, the methods described may apply to cessation of smoking other substances that can be difficult to stop using due to the...

. Premised on the physical health and well being of the Bhutanese people – important elements of Gross National Happiness
Gross national happiness
The assessment of gross national happiness was designed in an attempt to define an indicator that measures quality of life or social progress in more holistic and psychological terms than only the economic indicator of gross domestic product .-Origins and meaning:The term...

 – the Tobacco Control Act recognizes the harmful effects of tobacco consumption and exposure to tobacco smoke on both spiritual and social health.TCA: Preamble

Long before the enactment of the Tobacco Control Act, Bhutan's government had struggled against tobacco use. In 1916, the first King of Bhutan Ugyen Wangchuck
Ugyen Wangchuck
Gongsa Ugyen Wangchuck was the first King of Bhutan from 1907 to 1926.He was born in 1862 to Jigme Namgyal, penlop of Trongsa and Ashi Pema Choki. He succeeded his father as Penlop of Trongsa...

 promulgated a ban on the "most filthy and noxious herb, called tobacco."

No smoking laws

The consumption of tobacco is not altogether prohibited in Bhutan, though it is largely banned in places of public accommodation. The Act largely targets smoking
Smoking
Smoking is a practice in which a substance, most commonly tobacco or cannabis, is burned and the smoke is tasted or inhaled. This is primarily practised as a route of administration for recreational drug use, as combustion releases the active substances in drugs such as nicotine and makes them...

 in particular, though any form of tobacco is subject to the Act. The Tobacco Control Act establishes non-smoking
Smoking ban
Smoking bans are public policies, including criminal laws and occupational safety and health regulations, which prohibit tobacco smoking in workplaces and/or other public spaces...

 areas: commercial centers including markets, hotel lobbies, restaurants, and bars; recreation centers such as discotheques, cinemas, and playing fields; institutions and offices, both public and private; public gatherings and public spaces such as festivals, taxi stands, and the airport
Paro Airport
Paro Airport is the only international airport of Bhutan. The airport is located from Paro in a deep valley on the bank of the Paro river at an elevation of ....

; all public transportation; and any other places declared by the Tobacco Control Board.TCA: § 3 The Board also has the authority to designate smoking areas in public otherwise.TCA: § 26(b) Smoking areas are permitted in non-public areas of hotels (i.e., smoking floors or smoking rooms) at the discretion of the patron.TCA: § 9

The Act imposes a duty on persons in charge of these areas of public accommodation to display signs prohibiting smoking, demand smokers cease, report offenders who refuse to the police
Royal Bhutan Police
Law enforcement in Bhutan is the collective purview of several divisions of Bhutan's Ministry of Home and Cultural Affairs. Namely, the Ministry's Bureau of Law and Order, Department of Immigration, and Department of Local Governance are responsible for law enforcement in Bhutan...

, and comply with inspections.TCA: §§ 4–8

Trade and commerce of tobacco products

The Act prohibits the cultivation, harvest, manufacture, supply, and distribution of tobacco, as well as the manufacture, supply, distribution, sale, and purchase of tobacco products within Bhutan.TCA: § 11

The Act allows individuals to import tobacco and tobacco products for personal consumption according to limits set by the Tobacco Control Board subject to duties and taxes it imposes. Those who bring their own tobacco or tobacco products into Bhutan must bear proof of taxation, may only bring goods that display required health warnings, and must not bring goods that promote tobacco by means that are false, misleading, or likely to create an erroneous impression about its characteristics, health effects, or hazards.TCA: §§ 12–17 (Cf. descriptors such as "light" or "mild")

The Act thoroughly prohibits tobacco advertisement, promotion and sponsorship, restricting the appearance of tobacco in domestic videos and movies to educational clips produced for the purpose of health promotion.TCA: §§ 18–19

The Act's chapter on "Educational Measures" authorizes the government of Bhutan to form agencies in order to promote health awareness, prevent smoking in non-smokers, and strategize tobacco control. In conjunction, the Act also authorizes programs for government research and surveillance of tobacco use.TCA: §§ 20–21

Enforcement agencies

The Tobacco Control Act establishes two new government institutions to regulate tobacco use in Bhutan: the Tobacco Control Board and the Tobacco Control Office. The members of both the Board and the Office serve concurrently in government anti-narcotics offices.

The Tobacco Control Board is the same body as the preexisting Bhutan Narcotic Control Board, now charged with regulating tobacco and enforcing that regulation under the Act. The Board provides guidance and direction to the tobacco Control Office and other law enforcement agencies regarding tobacco law enforcement and is permitted to propose amendments to parliament on the Tobacco Control Act itself.TCA: §§ 24–27 Any amendments to the Act must be approved by a simple majority in both the National Council
National Council of Bhutan
The National Council is the upper house of Bhutan's new bicameral Parliament, which also comprises the Druk Gyalpo and the National Assembly. It is the subordinate house, and cannot author monetary or budget-related bills...

 and National Assembly
National Assembly of Bhutan
The National Assembly is the elected lower house of Bhutan's new bicameral Parliament which also comprises the Druk Gyalpo and the National Council. It is the more powerful house.- Current National Assembly :...

, or by at least two-thirds of a quorum of parliament
Parliament of Bhutan
The Parliament of Bhutan consists of the King of Bhutan together with a bicameral parliament.Constitution: Art. 1, § 3; Art. 10 This bicameral parliament is made up of an upper house, the National Council and a lower house, the National Assembly.Constitution: Art. 11; Art...

, and the amendments must not undermine the Bhutan Narcotic Control Agency.TCA: § 59

The Act mandates the Tobacco Control Board, through the Tobacco Control Office, to provide cessation programs in health facilities and to work with rehabilitation centers in diagnosing and counseling tobacco dependence. To this end, the Act authorizes the government to facilitate affordable access to treatment, including pharmaceutical products.TCA: §§ 22–23 The Act further provides a procedural framework for the functioning of the Board. TCA: § 28

The Tobacco Control Office is occupied by the Bhutan Narcotic Control Agency and headed by its executive director. The Office acts as the agent
Government agency
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types...

 of the Board responsible for coordinating most of the actual implementation of Bhutan's tobacco policy.TCA: §§ 29–32

The Act tasks other government institutions and agencies with implementing its terms and the rules promulgated by the Tobacco Control Board. The Ministry of Health, Ministry of Economic Affairs, Ministry of Finance, Ministry of Education, and Ministry of Home and Cultural Affairs
Ministry of Home and Cultural Affairs
The Bhutanese Ministry of Home and Cultural Affairs is the government ministry within the Lhengye Zhungtshog which oversees law and order; the civil administration; immigration services; the issuance of citizenship documents, and other related documents; the...

 are all responsible for implementing the laws in the Act and the policies of the Board in specified arenas.TCA: §§ 33–37, 42 Ancillary government institutions, such as the Royal Bhutan Police
Royal Bhutan Police
Law enforcement in Bhutan is the collective purview of several divisions of Bhutan's Ministry of Home and Cultural Affairs. Namely, the Ministry's Bureau of Law and Order, Department of Immigration, and Department of Local Governance are responsible for law enforcement in Bhutan...

, the Civil Society Organization, and the Road Safety and Transport Authority are also authorized with enforcement and coordinating awareness on tobacco control.TCA: §§ 38, 40–42 Likewise, local-level Thromde
Thromde
A thromde is a third-level administrative division in Bhutan. The legal administrative status of thromdes was most recently codified under the Local Government Act of 2009, and the role of thromdes in elections in Bhutan was defined in the Election Act of 2008.-Thromde administration:Thromde...

s (municipal governments) are also to coordinate and conduct awareness programs on tobacco control.TCA: § 39

Enforcement laws

The Act also provides a substantive and procedural framework for enforcement by authorized officers of the above government bodies.TCA: §§ 42–46 If officers believe there is tobacco within, they are authorized to enter and inspect public and business places, and any place pursuant to a search warrant, at any reasonable time. They are also authorized to stop and inspect vehicles on the road and examine containers at checkpoints if they believe tobacco is inside. Officers may also demand proof of tax and duty payment at any reasonable time. According to regulations established by the Board, officers are also empowered to confiscate and destroy contraband.TCA: § 43 The powers of confiscation, search and seizure are subject to the provisions of the Penal Code and the Civil and Criminal Code.TCA: §§ 44–45

The Act lists eight new offenses and corresponding penalties, ranging from fines for smoking in non-smoking areas to fourth-degree (lowest degree) felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...

 charges for smuggling. Fourth-degree felonies are punishable by imprisonment for three to five years. Anyone in possession of more tobacco than the import limit is guilty (strictly liable
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...

) of smuggling. Those caught selling tobacco in Bhutan receive reduced sentences if their crime is mitigated by disclosing the tobacco's source to authorities.TCA: §§ 47–54

In addition, depictions of tobacco use in motion media other than for health promotion constitute a petty misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...

; as such, the Act also provides for a content-based restriction on speech
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...

.TCA: §§ 47–54

Enforcement practices and controversy

In practice, enforcement has resulted in some high profile cases, however at least one citizen has complained publicly that enforcement is spotty and arbitrary. Another has come forth to highlight the disparate treatment among classes and of tobacco among other addictive habits widespread in Bhutan such as ara
Ara (drink)
Ara, or Arag, is a traditional alcoholic beverage consumed in Bhutan. Ara is made from rice, maize, millet, or wheat, and may be either fermented or distilled. The beverage is usually a clear, creamy, or white color.-Production:Ara is most commonly made from rice or maize at private homes or farms...

, doma, emadatshi and phak sha sikam, and to decry that tobacco possession in Bhutan could be punished with the same sentence as for rape of the elderly.

In the first major prosecution under the Act, a 23-year old ordained monk named Sonam Tshering from Langpa in Haa
Haa District
This page is about the area Haa. For information about the airships, please see high-altitude airship.Haa District is one of the 20 dzongkhag or districts comprising Bhutan. Per the 2005 census, the population of Haa dzongkhag was 11,648, making it the second least populated dzongkhag in Bhutan...

 was caught on January 24, 2011 with 480 grams of chewing tobacco (purchased for Nu.120) en route from Phuentsholing to Thimphu
Thimphu
Thimphu also spelt Thimpu, is the capital and largest city of Bhutan. It is situated in the western central part of Bhutan and the surrounding valley is one of Bhutan's dzongkhags, the Thimphu District. The city became the capital of Bhutan in 1961...

. This was the first such prosecution under the Tobacco Control Act. A private individual informed the police that Tshering possessed tobacco. Under current customs schedules, a tax of 100 percent was levied on tobacco from India, and 200 percent on tobacco from all other countries of origin, with a maximum of 150 grams of tobacco per month. Although Tshering revealed the source of his tobacco, to mitigate and qualify his offense as a misdemeanor, he failed to identify the location and supplier of the tobacco, apparently somewhere in the border town of Jaigaon
Jaigaon
Jaigaon is a small town in Jalpaiguri district in the Indian state of West Bengal, near the Bhutan border. The town lies at the gateway to Bhutan - Phuentsholing, and is thus a very thriving place of trade...

. He was thus convicted of a felony, whose minimum sentence is three years. Although the Constitution of Bhutan
Constitution of Bhutan
The Constitution of Bhutan was enacted July 18, 2008 by the Royal Government. The Constitution was thoroughly planned by several government officers and agencies over a period of almost seven years amid increasing democratic reforms in Bhutan...

 guarantees all persons the right to be represented by a jabmi (attorney), the Thimphu District Court
Dzongkhag Court
The Dzongkhag Court exists in each of Bhutan's 20 Dzongkhags, and is the court of first instance of the Royal Court of Justice in 14 of the 20 Dzongkhags of Bhutan. In the remaining 6 Dzongkhags there exists a further subdivision, Dungkhag, which is the basic level of judicial administration in...

 closed the case before any jabmi offered his services. The Court convicted Tshering of smuggling and sentenced him to for smuggling under the Tobacco Control Act.

In the ensuing controversy, the Prime Minister of Bhutan Lyonpo Jigme Thinley issued statements that Tshering's case had been "blown out of proportion," while sympathizing with those who felt the severity of the sentence was incongruent to the offense committed. The Prime Minister pointed out that the legislation was a product of Bhutan's modern bicameral parliamentary and democratic process, having been debated in both the National Assembly
National Assembly of Bhutan
The National Assembly is the elected lower house of Bhutan's new bicameral Parliament which also comprises the Druk Gyalpo and the National Council. It is the more powerful house.- Current National Assembly :...

 and National Council
National Council of Bhutan
The National Council is the upper house of Bhutan's new bicameral Parliament, which also comprises the Druk Gyalpo and the National Assembly. It is the subordinate house, and cannot author monetary or budget-related bills...

, and assented by the Royal Government. With the truism that no law is perfect, he invited the public to amend the Tobacco Control Act peacefully under the new Bhutanese democratic process. Sonam Tshering has since appealed the District Court
Dzongkhag Court
The Dzongkhag Court exists in each of Bhutan's 20 Dzongkhags, and is the court of first instance of the Royal Court of Justice in 14 of the 20 Dzongkhags of Bhutan. In the remaining 6 Dzongkhags there exists a further subdivision, Dungkhag, which is the basic level of judicial administration in...

 ruling to the High Court of Bhutan
High Court of Bhutan
Under the 2008 Constitution, the High Court of Bhutan consists of the Chief Justice and eight Drangpons . The Chief Justice and Drangpons of the High Court are appointed from among juniors, peers, and eminent jurists by the Druk Gyalpo...

, for which has retained a private attorney. The Bhutan Observer editor has questioned the constitutionality of the Tobacco Control Act and its enforcement in view of the harshness of the sentence.

In early March 2011, a high-profile incident at Paro Airport has resulted in the arrests of the Royal Bhutan Army
Royal Bhutan Army
The Royal Bhutan Army , or RBA, is a branch of the armed forces of the Kingdom of Bhutan responsible for maintaining the country's territorial integrity and sovereignty against security threats. The King of Bhutan is the Supreme Commander in Chief of the RBA...

 constable, officer and aircraft engineer allegedly involved in importing a carton of 555 cigarettes without paying tax at the Paro Airport
Paro Airport
Paro Airport is the only international airport of Bhutan. The airport is located from Paro in a deep valley on the bank of the Paro river at an elevation of ....

. Constable Tshering Jamtsho and Captain Sonam Tshewang were officially handed over to police by the royal Bhutan Army, while police arrested aircraft engineer Chogyal Gyeltshen separately. Customs agents had caught Constable Jamtsho with some 200 cigarettes, who alleged they were purchased by the aircraft engineer for a Major Karma Dorji. The Bhutanese Customs authorities investigated the affair for 51 hours before issuing arrest warrants; further investigation was begun by the Royal Bhutan Police
Royal Bhutan Police
Law enforcement in Bhutan is the collective purview of several divisions of Bhutan's Ministry of Home and Cultural Affairs. Namely, the Ministry's Bureau of Law and Order, Department of Immigration, and Department of Local Governance are responsible for law enforcement in Bhutan...

, however the police expressed their refusal to investigate the matter until it was referred to them, despite the legal requirement that matters be brought to the attention of the police within 24 hours. Because the arrests were not immediate, the affair is somewhat controversial.

Less than two days later, on March 7, 2011, another tip-off at Paro Airport
Paro Airport
Paro Airport is the only international airport of Bhutan. The airport is located from Paro in a deep valley on the bank of the Paro river at an elevation of ....

 resulted in the arrest of two female keepers of different shops in possession of about 200 cigarettes (19 packets) and 11 packets of chewing tobacco ("baba") in total. Upon arrest and interrogation of the first shopkeeper, police learned her source was the second; the second disclosed her source to police. On that information, police arrested a 39-year old bus driver at the Chunzom checkpost. Throughout 2011, there were several more tobacco-related arrests at Chunzom, including that of an 81 year old man.

In late March 2011, another arrest in Phuentsholing, a major border town, allegedly produced a network of apparently unwitting transporters of tobacco products worth Nu.45,000 in a consignment passing through Jaigaon. The activities were traced to a businesswoman based in Thimphu
Thimphu
Thimphu also spelt Thimpu, is the capital and largest city of Bhutan. It is situated in the western central part of Bhutan and the surrounding valley is one of Bhutan's dzongkhags, the Thimphu District. The city became the capital of Bhutan in 1961...

.

The controversy of tobacco laws and the reach of government touched even the Bhutanese media
Media of Bhutan
The various media of Bhutan have historically been government-controlled, although this has changed in recent years. The country has its own newspapers, television and radio broadcasters and Internet Service Providers.- Journalism :...

. In late March 2011, the Royal Bhutan Police
Royal Bhutan Police
Law enforcement in Bhutan is the collective purview of several divisions of Bhutan's Ministry of Home and Cultural Affairs. Namely, the Ministry's Bureau of Law and Order, Department of Immigration, and Department of Local Governance are responsible for law enforcement in Bhutan...

 sued a 28-year old former employee of the Bhutan Media Service in Thimphu
Thimphu
Thimphu also spelt Thimpu, is the capital and largest city of Bhutan. It is situated in the western central part of Bhutan and the surrounding valley is one of Bhutan's dzongkhags, the Thimphu District. The city became the capital of Bhutan in 1961...

 for spreading rumors that police had raided one of the media houses earlier in March 2011 on a tobacco-related pretext. The rumor was characterized as a joke and a hoax. According to police, the accused had confessed to spreading unfounded rumors that the police had visited Bhutan Media Services offices warning them not to smoke, and that employees would be arrested if caught. This provoked public outrage, prompting outcries in news opinion columns. Police, through Kuensel
Kuensel
Kuensel is the national newspaper of Bhutan. It was the only local newspaper available in Bhutan until 2006 when two more newspapers were launched. The government of Bhutan owns 51 percent of Kuensel while 49 percent is held by the public.-History:...

, stated that "police was referred to as blue dogs encroaching into private space and waiting for crime to happen. We were blamed for no reason and encroaching is a strong word." The incident resulted in the termination of the employee.

Although some Bhutanese have decried the Tobacco Control Act as draconian, the subject has remained open to debate. Members of Parliament
Parliament of Bhutan
The Parliament of Bhutan consists of the King of Bhutan together with a bicameral parliament.Constitution: Art. 1, § 3; Art. 10 This bicameral parliament is made up of an upper house, the National Council and a lower house, the National Assembly.Constitution: Art. 11; Art...

 report variously that they have received no input or that their constituents held favorable opinion on the law. Most vigorous debate continues in urban areas. The Bhutanese public seems convinced, however, that threats to health and happiness
Gross national happiness
The assessment of gross national happiness was designed in an attempt to define an indicator that measures quality of life or social progress in more holistic and psychological terms than only the economic indicator of gross domestic product .-Origins and meaning:The term...

 from tobacco pale in comparison to alcohol and drugs. Members of local and national governments, however, have generally supported the Tobacco Control Act as it was enacted and opposed any amendments especially before the expiration of a mandatory one-year wait.

Government response

On 4 September 2011, Prime Minister Jigme Thinley stated at a press conference that his government would act swiftly to enact an amendment to the Tobacco Control Act. The Prime Minister explained the decision was based on the "pain and the suffering" the Act had caused after some 59 arrests, adding that his government would consult with the National Council
National Council
-Conservation:* National Council for Science and the Environment, a US-based non-profit organization which has a mission to improve the scientific basis for environmental decisionmaking...

 to ensure its presentation during the next legislative session. In reaction, semi-nomadic communities in Merak
Merak Gewog
Merag Gewog is a gewog of Trashigang District, Bhutan. Merak and Sakten Gewogs comprise Sakten Dungkhag ....

 and Sakteng along the porous Indian border near Arunachal Pradesh
Arunachal Pradesh
Arunachal Pradesh is a state of India, located in the far northeast. It borders the states of Assam and Nagaland to the south, and shares international borders with Burma in the east, Bhutan in the west, and the People's Republic of China in the north. The majority of the territory is claimed by...

 expressed vocal support for the status quo, or even strengthening its provisions, due to the negative impacts of the illicit tobacco trade among their populations.

See also

  • Health in Bhutan
    Health in Bhutan
    Health in Bhutan is one of the government's highest priorities in its scheme of development and modernization. Health and related issues are overseen by the Ministry of Health, itself represented on the executive Lhengye Zhungtshog by the Minister of Health...

  • Bhutanese legislation
    Bhutanese legislation
    Bhutanese legislation is created by the bicameral Parliament of Bhutan. Either the upper house National Council, the lower house National Assembly, or the Attorney General may author bills to be passed as acts, with the exception of money and financial bills, which are the sole purview of the...

  • Law enforcement in Bhutan
  • Censorship in Bhutan
    Censorship in Bhutan
    Censorship in Bhutan refers to the way in which the Government of Bhutan controls information within its borders. There are no laws that either guarantee citizens' right to information or define or structure censorship...

  • Smoking ban
    Smoking ban
    Smoking bans are public policies, including criminal laws and occupational safety and health regulations, which prohibit tobacco smoking in workplaces and/or other public spaces...

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