G.R. No. 202943 - Department of Health vs. Philip Morris Philippines Manufacturing, Inc.

On November 19, 2008, Philip Morris Philippines Manufacturing, Inc. (PMPMI), through PCN Promopro, Inc., applied for a “Gear Up Promotional Activity” permit under Article 116 of RA 7394 before the Bureau of Food and Drugs (BFAD, now FDA), submitting mechanics, materials, and fees.
After more than 15 days with no action, PMPMI inquired and was verbally told of a DOH memorandum prohibiting tobacco promotions.

On November 28, 2008, PMPMI, via Arc Worldwide Philippines Co., filed a second permit application for its “Golden Stick Promotional Activity,” which BFAD refused to accept per a BFAD director’s directive.
On January 5, 2009, BFAD Director Gutierrez formally denied the Gear Up application, citing RA 9211’s purported ban on all tobacco promotions effective July 1, 2008.

On January 19, 2009, PMPMI appealed to DOH Secretary Duque, arguing (a) RA 9211 only restricted, not prohibited, promotions; (b) PMPMI had vested rights from prior permits; and (c) denial violated due process and property rights.
On April 30, 2009, Secretary Duque denied the appeal, holding (a) permit issuance was discretionary; (b) past approvals did not create a vested right; (c) RA 9211’s ban on advertising and sponsorship inherently prohibited promotions; and (d) the Philippines must comply with the FCTC.

On July 13, 2009, PMPMI filed a petition for certiorari and mandamus with the Court of Appeals (CA), claiming grave abuse of discretion and that RA 9211 allowed promotions.
On August 26, 2011, the CA granted the petition, finding (a) RA 9211 clearly distinguished between advertising/sponsorship (banned) and promotion (restricted), and (b) the Inter-Agency Committee–Tobacco (IAC-Tobacco), not DOH, had exclusive authority under RA 9211 to regulate promotions. The CA’s August 3, 2012 resolution denied DOH’s motion for reconsideration.

Whether RA 9211’s creation of the IAC-Tobacco with exclusive power to administer and implement its provisions impliedly repealed DOH/BFAD’s permit-granting authority under RA 7394.
Whether the CA erred in finding that DOH’s interpretation of RA 9211 as completely prohibiting tobacco promotions constituted grave abuse of discretion.