| Summary: | 碩士 === 輔仁大學 === 法律學系 === 101 === On February 27, 2005, the “WHO Framework Convention on Tobacco Control” (WHO FCTC) formally came into force. It represents the first international treaty ever planned by WHO, as well as one of the fastest ratified in the history of the United Na-tions, which also illustrates its international significance. Article 13 of the Convention stipulates that, in principle, all parties shall adopt a “comprehensive ban on” tobacco advertising. Moreover, within five years of their ratification of the Convention, the par-ties shall commit themselves to undertake appropriate legislation and reporting. In view of this, many countries have in recent years amended their laws with the aim of ex-panding the ban on tobacco advertising. Even non-parties to the Convention were in-fluenced into amending their laws. Thus, the comprehensive banning of tobacco adver-tising has already become a global trend, including in Taiwan.
However, Article 13 of the said convention also regulates that the adoption of con-crete measures to control tobacco advertising by governments must be done while re-specting their own constitutions. This has led to a diversity in regulatory designs, and to varying degrees of astringency. Increasingly strict legal amendments aimed at the ob-servance of the Convention’s spirit have met with doubts on their constitutionality. Of them, the most common claim is that the said amendments run contrapuntal to freedom of speech.
Towards the end of November 2008, the Third Session of the Conference of the Parties (COP3) further passed the “Guidelines for Implementation of Article 13 of the WHO Framework Convention on Tobacco Control” to serve as a reference for Article 13 banning tobacco advertising. The said Guidelines suggest two directions for parties to pursue: (1) Taking Article 13 of WHO FCTC as a common guiding principle interna-tionally, efforts must be directed towards the “eliminat[ion of] tobacco advertising,” (2) Under the premise of respect for freedom of speech which protected by the constitution, it must be taken into consideration that appropriate exceptions be made when it came to the issue of “legitimate expression”. These two directions, specifically, highlights the two problematic issues in efforts towards banning tobacco advertising. On the one hand, as tobacco is “harmful,” it’s advertising necessarily has to be comprehensively banned. On the other, in consideration of the fact that tobacco products are “lawful products,” it is necessary to also consider legitimate expression in an appropriate manner, a matter that must be weighed from the perspective of a country’s constitution.
Taiwan’s “Tobacco Hazards Prevention Act” regulates tobacco advertising. This act was amended in July of 2007, and has been implemented since January 2009. The said act was amended to better accommodate the spirit of Article 13 of the Convention, with its goal of reaching a comprehensive ban on tobacco advertising. Actual implementation of the Act has reached the level of “complete ban,” and even, on the level of a “super ban,” which exceeds the scope supposedly stipulated by law due to the inclusion of other unrelated behavior (those understood as not having to do with tobacco adver-tising). In terms of timing, Taiwan’s new regulations are somewhere between the im-plementation of the Convention and the announcement of the Guidelines. Yet, as an ap-propriate relaxation of comprehensive banning has already been taken into consideration in the Guidelines, it is doubtful whether the new Taiwan regulations should be maintained or not.
This thesis aims to probe into whether or not measures or laws on the comprehen-sive banning of tobacco advertising as inspired by the spirit of the Convention indeed go against freedom of speech as guaranteed by the constitution. Focus of the study will be on the definition provision in Article 2 (4) of the Taiwan’s Tobacco Hazards Preven-tion Act, the behavioral provision in Article 9 and the penalty provision of Article 26 of the same act.
Prior to a judicial review of the Constitution, it would be necessary to study how Taiwan’s current laws compare with other countries in regard to how much they infringe on people’s rights, as well as their actual impact on society. In this thesis, this will be done in two ways: (1) As the Conventions are international consensus, there is a need to study legal systems in other countries, including the EU, the United States, Canada, Australia, South Africa, Japan, South Korea, China(P.R.C.) and Hong Kong, (2) From the perspectives of Taiwan’s existing social conditions, as well as administrative and judicial cases studies, we will probe into the depth of how influential current laws are.
From the level of comparative constitutional law, this thesis mainly compares the American and Canadian legal systems. There are two reasons why: (1) The US Consti-tution has always upheld freedom of speech, because of which cases studies abound, and decisions made by the US Supreme Court often serve as references in the way many countries arrive at constitutional adjudication. In view of this, the discussion of com-mercial speech centers on US laws. In addition to how commercial speech is defined, the American system offers a useful tool, the Central Hudson Test which is used to de-termine whether limiting commercial speech is constitutional or otherwise. The US sys-tem in recent years also adopted new speech zone classification such as use of the term “ ’vice’ products.” This term refers to commercial products persons of legal age may obtain although such products lead to secondary harmful effects on public health or morals. These products include cigarettes, alcohol, gambling, etc. This thesis studies whether or not the US Supreme Court handling cases of advertising such products fol-low certain definite judicial pathways. (2) The Canadian Supreme Court offers the larg-est collection of constitutional cases on the banning of tobacco advertising. The restric-tive clauses on government authority in Canadian constitution and their derivative Oak-es Test are highly consonant with Article 23 of the Constitution of the Republic of Chi-na (R.O.C., Taiwan) and the principle of proportionality. For this reason, this study will take Canadian tobacco advertising cases as reference.
Today, Taiwan’s relevant laws are stringent and they keep pace with “progress” in the international effort to restrict tobacco advertising on an almost-unprecedented scale. This complete ban, or even, super ban, are viewed with doubt as to their unconstitutional violation of freedom of speech, and is taken on the same level as “prior restraint.” In this thesis, it is the author’s view that Taiwan’s relevant regulations fare dismally when it came to “constitutional interpretation” (Verfassungskonforme Gesetzesauslegung). In fact, Taiwan laws violate Article 11 of the Constitution of R.O.C. protecting people’s freedom of speech. They are unconstitutional for three reasons: (1) The “vagueness” and “overbreath” from the definition provision of the Act’s Article 2 (4) become a main concern due to its infinite coverage. It is not just a complete ban of tobacco advertising, but also restricting behavior not cognitively recognized as relevant, leading to a super ban, and thus violates the principle of legal certainty. (2) The behavioral provision of the Act’s Article 9, influenced by the definition provision, is too strict and its scope of re-striction far too wide, leading to a super ban in a manner not in keeping with the princi-ple of proportionality enshrined in Article 23 of the Constitution of R.O.C.. Moreover, goals towards reaching a reduction in tobacco consumption have encouraged the adop-tion of other less-burdensome alternatives also aimed at regulations leading to a com-plete ban. This also violates the principle of proportionality and must therefore be ap-propriately relaxed. (3) While existing laws completely ban tobacco advertising, there are no such requirements for other vice products. Although in normal circumstances, these laws do not violate the principle of equality in Article 7 of the Constitution of R.O.C., but legislators fail to take into account that betel nut advertising is comparable to tobacco advertising. The scope of restrictions also includes smokeless tobacco, a product variety characteristically similar to betel nut, and therefore “same matters or things are treated in a different way without any legitimate reason.” Such a discrimina-tory manner runs contrary to the principle of equality. Moreover, existing laws view in-formative or price advertisements in the same way as promotional advertising aimed at boosting tobacco consumption, while at the same time imposing stricter restrictions on non-misleading advertising than on misleading ones. For this reason, “different matters or things are not treated in a reasonably different manner” or sometimes, a loss of bal-anced impartiality in violation of the principle of equality becomes a consequence. Ex-isting applicable regulations are evidently unconstitutional, making speedy legal amendments a necessity if we are to respect freedom of speech protected by Article 11 of the Constitution of R.O.C..
In addition, it has been noticed in this study that the US Supreme Court, the Su-preme Court of Canada and Taiwan’s Interpretation of Justices of the Constitutional Court, Judicial Yuan, had recently emphasized that lawful, real and non-misleading commercial speech deserve more protection than unlawful, untruthful and misleading commercial speech. In summary, a review of the trends in constitutional adjudication in the US, Canada and Taiwan shows that the provision of lawful, real and non-misleading product information to adults could serve as the constitutional boundaries for the control of tobacco advertising. Such boundaries should apply not just to advertising of tobacco products as the head of all immoral vice but likewise must encompass advertising of other vice products of a similar nature.
It is the hope of the author that this study could serve as a reference and wake up call for legislators who would want any “puritanical legislation” of laws in the future and could contribute to a more appropriate control of advertising other vice products such as betel nuts and gambling, while at the same time guaranteeing people’s constitu-tional rights to freedom of commercial speech.
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