Indonesian Government’s Plan to Ban Logos and Brands on Tobacco and Vape Product Packaging
The Indonesian government plans to ban the inclusion of logos and brands on tobacco and electronic cigarette products, as stated in the Draft Regulation of the Minister of Health (RPMK), which derives from Government Regulation (PP) Number 28 of 2024, an implementation of the Health Law Number 17 of 2023. This draft regulation aims to standardize the packaging of tobacco and electronic cigarette products.
Legal Expert Highlights Potential Constitutional and Intellectual Property Rights Violations
Ali Ridho, a legal expert from Trisakti University, has raised concerns about the potential violation of constitutional rights and intellectual property rights (IPR) that may arise from this policy. Ridho explained that the background for the RPMK, which regulates plain packaging, is the Health Law Number 17 of 2023. However, PP 28/2024, which also regulates tobacco and electronic cigarette products, does not include a mandate for derivative regulations to standardize packaging as the RPMK does.
In Ridho’s view, the provisions in the PP and RPMK are inconsistent with the Constitutional Court’s (MK) decision. Furthermore, he mentioned that there is also a violation of Intellectual Property Rights (IPR). “PP 28/2024 indirectly violates IPR and seems irrelevant when viewed from a constitutional perspective,” Ridho said during a discussion event in Jakarta on Monday (9/9/2024).
According to him, there is a discrepancy between the Health PP and the Constitutional Court’s decision, potentially violating constitutional provisions. From a constitutional aspect, this policy is considered not to follow the existing legal provisions. In formulating regulations, he believes that the aspect of alignment between the applied policies and the Constitutional Court’s decision as a whole needs attention.
Draft Regulation of the Minister of Health on Safeguarding Tobacco & Cigarette Products Draws Criticism
The Draft Regulation of the Minister of Health (RPMK) on Safeguarding Tobacco and Electronic Cigarette Products continues to draw criticism. This policy, which is a follow-up to Law No. 17 of 2023 on Health and Government Regulation (PP) Number 28 of 2024, is considered not to involve various ministries and related parties in its drafting process.
“The DPR certainly does not want to leave the health aspect, of course, that is fundamental, but also does not want to leave the business and entrepreneurial aspects where the regulating ministry is not only the Ministry of Health (Kemenkes). There is the Ministry of Trade (Kemendag), the Ministry of Industry (Kemenperin). Then, there is the Ministry of Education because it has something to do with schools,” said a member of Commission IX of the DPR RI, Saleh Partaonan Daulay, in an official statement.
Saleh questioned whether all stakeholders were involved in drafting the RPMK. According to him, if they were not involved, they would feel left out and protest.
“The main problem is in the drafting of Government Regulations. We, as stakeholders in the industrial production sector, were not involved. In fact, the finalization of the Government Regulation before being signed by the President of the Republic of Indonesia was not initialed by several ministries. This is what we regret,” said the General Chair of the Indonesian White Cigarette Producers Association (Gaprindo), Benny Wachjudi.
Benny added that for health issues, the industry also agrees that they do not want Indonesia to become unhealthy. However, he emphasized that the discussion of this problem cannot only consider the health or industry point of view. Both parties must sit together to find a middle ground that can facilitate the needs of all related parties.
“We want to control cigarettes and other addictive substances. We do not prohibit people from smoking. People are still allowed to smoke because smoking is the right of each individual,” said the Head of the Communication and Public Service Bureau of the Ministry of Health, Siti Nadia Tarmizi.
Plain Packaging
One of the controversial articles in the RPMK is the provision regarding the standardization of packaging to be plain. Article 5 in the draft states that the packaging of tobacco products must be Pantone 448 C in color and have the brand name, variant, and producer identity written in Indonesian.
Separately, the Ministry of Trade’s Senior Expert Trade Negotiator, Angga Handian Putra, stated that the Ministry of Health had not officially invited the Ministry of Trade to participate in the formulation of the plain cigarette packaging policy (24/09). According to Angga, his party learned about the draft regulation through the Ministry of Health’s website, not from direct communication.
The Ministry of Trade also warned that in addition to challenges related to trademarks, the policy of plain cigarette packaging without brands could create trade barriers. Angga also highlighted the importance of scientific evidence showing that this policy supports public health, in accordance with applicable World Trade Organization (WTO) agreements.
“We hope that the Ministry of Health includes scientific evidence and takes into account the existing WTO provisions,” concluded Angga.
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