The legislative process
The forms of legislation for tobacco control
Sub-national Legislation: despite the preference for national legislation by most countries, (6) and with its advantages as discussed in the paragraph above, there are also distinct advantages of sub- national legislation. Where regional or local governments of a country are willing to develop legislation, and not the national authorities, it may be easier for those regions to develop sub-national legislation. Sub-national lawmakers may even be less influenced by industry pressures.(7) Local legislation may, in fact, achieve the long-term goal of tobacco control. Some states, provinces and municipalities in countries such as Brazil, Canada and the United States have developed effective sub-national laws for tobacco control, for example, in the area of smoke-free public places and workplaces, among others.
Administrative regulations: these are rules or decrees made by administrative agencies of government, acting on the basis of authority delegated to them by the legislative body. This form of law is important especially in legislating areas requiring technical expertise and also in implementation of specific aspects of provisions of a Statute. The scope of an agency's legal authority and the procedural steps for adopting such rules determines the effectiveness of this legislative approach. In many countries, the Parliaments authorize the Minister responsible for Health to promulgate administrative regulations for health matters including tobacco control.
Constitutional law: this is the highest and most fundamental form of law in most countries. It limits the powers of legislatures and administrative bodies and constitutions are more stable and change infrequently. While Constitutions may not offer a direct avenue for tobacco control, guarantees of right to health, life and obligation on the government to protect the public interest can support tobacco control. However, constitutional guarantees such as free speech may be interpreted by the tobacco lobby to undermine legislation. Despite this, Constitutional law has been successfully used in India and Uganda to promote tobacco control.
The role of courts- court- made law: courts make law through judicial review and case decisions. These define legal rights and powers in ways that may determine legal rights and powers for tobacco control, particularly in countries with powerful judiciaries. Generally, the power of judicial review is exercised by national courts but this may vary from country to country. Depending on the legal tradition, the rulings of the supreme judicial body may serve as binding precedents in future. Courts also make case law. In common law legal systems, entire fields of law are governed by decisions of court in individual cases. In many jurisdictions, legal actions based on theories of negligence, deception and other aspects of manufacturer liability are in the realm of common law, making common law (case law) a critical component of litigation against tobacco manufacturers by injured smokers. Hence in common law legal systems, the principles and rules pronounced in earlier cases have binding force on later cases.
(7) Jenny White and Lisa A. Bero, Public Health Under Attack: The American Stop Smoking Intervention Study (ASSIST) and the Tobacco Industry, February 2004, Vol 94, No. 2 | American Journal of Public Health 240-250