The Uruguayan Society of Tobacco (UST) appeared in April 2021 before the Presidency of the Republic to request the revocation of Decree No. 87/021 that enabled the marketing of heated tobacco products (HTP). 

However, not having  received a response from the Presidency, the organization filed an annulment claim in October 2021 before the Contentious Administrative Court (CAC) to challenge the regulations. 

In December, the Ministry of Public Health (MPH) presented a response to the appeal filed by the UST before the CAC, defending the validity of the decree. The document, to which Sudestada had access, argues -with a cumbersome wording- that freedom of trade must be defended, that there is scientific evidence (and it reuses the references from the Philip Morris website) and says that the UST does not have active legitimacy to file the appeal.

«The appealed act does not weaken the tobacco control policy in Uruguay,» says the document signed by Sandra Doldán on behalf of the MPH. 

The UST presented in May of this year the allegations due to the government’s insistence on maintaining Decree 87/021, which is contrary to the recommendations of the World Health Organization (WHO) and is in line with the strategy of the tobacco industry.

“State of the art”

The MPH defended the interests of the tobacco companies in its response to the nullity claim. «If there are not sufficient reasons to restrict the rights of individuals, specifically the freedom of industry and commerce, the State does not have to limit the aforementioned activity,» said the MPH in the document that supports the exclusion of HTPs from the prohibition generic marketing of electronic devices.

In addition, the Ministry insists that «there is scientific information» indicating that HTPs «result in less exposure of users to toxic substances associated with traditional tobacco consumption» and mentions some links. 

These are the same documents that, as revealed by Sudestada, the MPH extracted from the Philip Morris website to respond to representativeLucía Etcheverry’s request for information. In fact, that part of the letter is almost a copy of the response that was given to the legislator a few months ago.

«The referenced scientific information is part of the ‘state of the art’ on the subject, that is, it reflects the development of the research that exists at a certain moment on a certain subject,» maintains the MPH, and then unfolds the tobacco company’s arguments.

The UST pointed out in the pleadings presented in May of this year that some of the references mentioned by the MPH are works with primary conclusions or that they do not analyze a number of cases that give them scientific evidence value. «It is clear that it is not valid or sufficient evidence, even to make the statements made by the Ministry, and even less so as to support the creation or definition of a policy,» he pointed out.

First contradiction

In its response, the MPH  incurs several contradictions with respect to statements made in the same brief, but also to resolutions previously adopted by the same Ministry. For example, it ensures that the UST  lacks active legitimacy, because «the action promoted is ostensibly distanced from the tasks of the organization», making an interested cut of the presentation made by the organization about its activity. 

The UST  “Aims to ‘bring together health professionals from all disciplines related to the treatment of smoking. Promote their training to improve the quality of assistance to Uruguayan smokers”, highlighted the MPH and left aside the first part of the presentation, where it defines that “it is a scientific society, with legal status since 2009”.

Omitting its status as a «scientific society», the MPH says that «it is clear that the promoters (the UST) are far from holding a direct and personal right or interest that has been violated or injured by the questioned act.»

It is striking that the Ministry itself considers that the activity of the UST is not linked to a change in the tobacco regulations, when it was the same Ministry that, through Ordinance No. 254 of April 27, 2015, resolved that this organization, together with others from civil society, academics, and the state, make up the Interinstitutional Advisory Commission for Tobacco Control, which works «in the orbit of the General Directorate of Health.»

Diego Rodríguez, a member of the advisory commission representing the Tobacco Epidemic Research Center (TERC), explained to Sudestada that this area «is in charge of advising the minister on the tobacco issue and, in turn, the National Program for the Control of Tobacco. Tobacco». 

«In the Philip Morris trial, the issues that were discussed within the Advisory Commission were key,» said Rodríguez.

Laura Llambí, associate professor at the Faculty of Medicine of the University of the Republic and member of the advisory commission of the MPH, said that  “the steps to follow, the new regulations and everything that has to do with the control of tobacco are discussed there» and pointed out that «this is the technical area in which the health regulator relies for decision-making.»

Second contradiction

In its defense before the CAC, the MPH assured that «we are in the scenario of a norm dictated by the Health Authority within the framework of its competences and that regulates the possibility of marketing a certain product, not directly or incidentally affecting the treatment area of smoking addressed by the UST”.

This affirmation of the MPH contradicts the words of the Minister of Health, Daniel Salinas, on the occasion of World Tobacco Day 2021, about «the introduction to the market of new and emerging products for tobacco consumption», the same ones that enable the decree in question. «Its use is not without risk and experience has shown that one of the consequences is a rapid increase in tobacco consumption, both in its new and traditional forms,» ​​said Salinas.

The minister assured in that same message (issued two months after signing the decree) that «promoting the cessation of tobacco consumption» is not something that only doctors or those who are scientifically involved in the subject should do, but that «as well as that all tobacco control policies, like all articles of the FCTC, have an indissoluble integrality”. The FCTC is the Framework Convention on Tobacco Control of the World Health Organization (WHO), the agreement that Uruguay signed in 2004 and that has obliged it ever since to comply with tobacco regulations. 

Third contradiction

Later in its writing, the MPH included a quote from the WHO, misrepresenting the content of an informative note that explains what HTPs are. In the writing, a paragraph is taken from a four-page document, but the quote taken does not reflect the objective of the publication. 

In fact, it omits that in that document the WHO explains, among other things, that HTPs do not help to quit smoking, they emit toxic substances similar to those present in cigarette smoke, many of which can cause cancer and that those who use these products are exposed to these toxic emissions, some of them specific to HTPs.

The MPH’s brief cites: «It is the WHO itself who, through an informative note on Heated Tobacco Products (HTP) of March 2020, affirms that HTPs should not be confused with electronic nicotine administration systems (ENAS) among those that are electronic cigarettes, clarifying that the HTP system heats tobacco to release nicotine and are not ‘vapers’, while electronic cigarettes heat a liquid that contains nicotine, but not tobacco”. 

The paragraph cited by the Ministry’s brief is the one that answers the question «Are HTPs electronic cigarettes or electronic nicotine administration systems (ENAS)?» In that same information note, the WHO explains that «there is no evidence to show that HTPs are less harmful than conventional tobacco products», but that part of the text was not included in the ministerial reply.