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Sports and sponsors cannot be separated. They are inter-related. Sports need sponsors as a form of financial aid to prepare events and in exchange, sponsors utilizes sports as a marketing tool to promote its products among those who watch the events. This kind of relationship is normal in today’s sporting world and it is business-oriented. What is interesting is the issue as to the type of sponsors which should be allowed.

This matter was highlighted recently when the Malacca Football Association faced difficulty in securing sponsors for the 2006/2007 season and suggested that the sponsorship by tobacco companies should be revived for the development of the sport^.[1] In response to the suggestion, the Football Association of Malaysia (“FAM”) reaffirmed its stand not to allow any sponsorship by tobacco companies in line with the World Health Organization (“WHO”) and Government’s directives.^[2] Not long after that however, FAM agreed to reconsider its stand and planned to discuss with the Government the possibility of allowing sponsorship of tobacco companies in local football league only, but not at international level.^[3]

1. International and local laws

To consider the issue further, one needs to look at international and local laws which govern sports and sponsors. The WHO Framework Convention On Tobacco Control (“WHO FCTC”)^[4] is the international treaty which inter alia reaffirms the right of all peoples to the highest standard of health. The Control of Tobacco Product Regulations, 2004 (“CTPR 2004”)^[5] is our Malaysian law passed in accordance with the provision of the WHO FCTC as a form of implementation at domestic level.

Prior to the ratification of the WHO FCTC, sponsorship of tobacco companies was common in local football tournaments such as the Dunhill Premier League and also at international motorbike and car racing events. However, this trend ended after the treaty come into force on 27 February 2005. Its main aim is to protect public health by the introduction of several measures to reduce the demand and supply for tobacco.^[6]

The relevant provisions pertaining to the tobacco sponsorship are contained in Article 13 of the WHO FCTC. Article 13(1) states:

“Parties recognize that a comprehensive ban on advertising, promotion and sponsorship would reduce the consumption of tobacco products.”

Article 13(4)(f) further states:

“Each Party shall prohibit, or in the case of a Party that is not in a position to prohibit due to its constitution or constitutional principles restrict, tobacco sponsorship of international events, activities and/or participants therein.”

It is interesting to note that the wording of Article 13(4)(f) only refers to the prohibition of tobacco sponsorship of “international event, activities and/or participants”. The question is whether this prohibition extends to local events?

Although the provision itself is not very clear, our domestic CTPR 2004 enacted in consonance with the objectives of the WHO FCTC comprehensively prohibits local advertisements of tobacco products and sponsorship. Part II Rule 5(1) clearly states that:

“No person shall under any contract, agreement, undertaking or understanding whether legally binding or otherwise, with another person-

(a) promote a tobacco product in exchange for any sponsorship, gift, prize, reward scholarship or like benefit given or agreed to be given by the other person or by any other person, or

(b) give or agree to give any sponsorship, gift, prize, reward, scholarship or like benefit in exchange for the promotion of a tobacco product by the other person.”

By interpreting paragraphs (a) and (b) of Rule 5(1), it is submitted that the prohibition under paragraph (a) applies to any person, particularly “organizers of sporting event” or “sports club” not to promote a tobacco product in exchange for sponsorship agreed to be given by a “tobacco company”. Likewise, the prohibition under paragraph (b) applies to any person, particularly a “tobacco company” not to give any sponsorship in exchange for the promotion of tobacco products by “organizers of sporting event” or “sports club”. In other words, Rule 5(1)(a) and (b) have been drafted to prevent any steps in the promotion of tobacco products through sponsorship irrespective of the parties involved. The punishment for a violation of sub-rule (1) carries a fine not exceeding ten thousand ringgit or imprisonment for a term not exceeding two years upon conviction.^[7]

Although Rule 5(3)(a) and (b) states that the prohibition of sponsorship by tobacco companies do not apply at the Formula 1 Grand Prix and any motor vehicle racing events held at Sepang International Circuit before 31 December 2005 and football events held before 31 December 2004, it is understood that such sponsorship is prohibited after the specified cut-off date.^[8]

2. Where do we go from here?

It is submitted that whatever plans there are to revive the sponsorship by tobacco companies at local sporting events would not only run foul of the WHO FCTC objectives but would contravene Rules 5(1)(a) and (b) of the CTPR 2004. The legitimate way to bring back sponsorship by tobacco companies into the local football league is to withdraw from the WHO FCTC. Article 31(1) of the WHO FCTC allows a party to withdraw from the Convention by giving written notification to the Depository (i.e., the Secretary-General of the United Nations) at any time after two years from the date on which the Convention came into force.^[9] Malaysia may withdraw itself on 28 February 2007, two years after the Convention came into force on 27 February 2005. Article 31(2) states that such withdrawal shall take effect upon expiry of one year from the date of receipt of notification by the Depository.^[10] However, it will be a step backward for Malaysia if a withdrawal takes place merely to revive sponsorship by tobacco companies as it would definitely weaken our domestic tobacco control policies.

Alternatively, a move to repeal the whole of Part II Rule 5 or an amendment to sub-regulation 3(b) of the CTPR 2004 by allowing an extension of time is another way of reviving sponsorship by tobacco companies. In my opinion, this is not a prudent move because it goes against the spirit of the WHO FCTC which Malaysia has signed and ratified. For as long Malaysia remains a party, the Government has a duty to act in good faith not to undermine the provisions set out therein.

The situation is totally different for a country which did not sign and ratify the WHO FCTC. In such a case, the country has no obligations to comply with the provisions set out in the Convention as in the case of Indonesia. Unlike Malaysia, Indonesia has yet to sign the WHO FCTC. It only has its local tobacco control regulations to deal with and the same do not prohibit sponsorship by tobacco companies for any event. Tobacco companies are still the main source of sponsorship of events in Indonesia. Tobacco companies have sponsored the Indonesian football league and the league is officially known as “Liga Djarum Indonesia”.^[11] Gudang Garam, a tobacco company, is the co-sponsor of the A1 car racing event together with a local bank, NISP.

3. The arguments

It may be argued that the tobacco sponsorship issue should not be examined solely from the health perspective because tobacco companies may be involved in other non-tobacco related business. It does not mean that if a tobacco company sponsors our football league, it will influence youngsters to smoke. The reason is, apart from cigarettes, there are other non-tobacco products produced by tobacco companies which may be promoted with the relevant sponsorship. At the same time, tobacco sponsorship for local sporting events may encourage youngsters to participate actively in sports as part of a healthy lifestyle.

How does the law deal with it? With reference to the WHO FCTC, Part 1: Introduction, Article 1(f) provides a definition of “tobacco products” as follows:

“means products entirely or partly made of the leaf tobacco as raw material that are manufactured to be used for smoking, sucking, chewing or snuffing.”

According to paragraph (g), “tobacco sponsorship” means:

“any form of contribution to any event, activity or individual with the aim, effect or likely effect promoting a tobacco product or tobacco use either directly or indirectly.”

It is nevertheless important to note that the CTPR 2004 does not define the meaning of “tobacco product” and “tobacco sponsorship”. Hence, a reliance on the WHO FCTC definition is necessary.^[12]

The definition of “tobacco sponsorship” under Article 1(g) of the WHO FCTC includes the “indirect” effect of promoting tobacco products or tobacco use through such sponsorship. Therefore, the argument that tobacco sponsorship does not solely promote the use of tobacco products as the companies have non-tobacco products as well, or the companies are involved in non-tobacco related business will not stand scrutiny because the subject sponsorship is caught by the prohibition of the said “indirect” effect. Further, it is generally perceived in layman’s terms that tobacco sponsorship means cigarettes and not other non-tobacco products.

There is no way back to revive the tobacco sponsorship even in our local football league as long as we remain a party to the WHO FCTC and the CTPR 2004 is still in force. Non-compliance with Article 13 of the WHO FCTC would tarnish our image in the eyes of the international community. An attempt to repeal or amend Part II Rule 5 of the CTPR 2004 is harsh merely to give a second bite to tobacco sponsorship in our country.

4. Alternatives?

What are the alternatives? It is my view that those in need of sponsorship should look to other sponsors as alternatives to tobacco companies. Apart from popular sponsors such as telecommunication companies or car manufacturers, it is suggested that sponsorships by liquor or gaming companies be sought as potential sources of income. These companies are rich and have massive funds. International sporting events have benefited from them for quite sometime now. Famous clubs in the English Premier League such as Liverpool and Everton are being sponsored by liquor companies;^[13] not to forget that online gaming companies sponsor Middlesbrough and Tottenham Hotspur.^[14] A football tournament at the South East Asia level has also been sponsored by a liquor company - the Tiger Cup (now “the AFF Cup”) - which Malaysia has participated in since its first edition.

5. Conclusion

The time has now come for organizers of sporting event or sports club to be more creative in securing sponsorships without relying on the conventional source of tobacco companies; something which has been laid to rest forever after the birth of the WHO FCTC and the CTPR 2004.

[1] See Utusan Malaysia, 8 November 2006.

[2] Ibid, 7 November 2006.

[3] Ibid, 19 November 2006. 

[4] The WHO FCTC came into force on 27 February 2005, 90 days after it is acceded to, ratified, accepted, or approved by 40 states. The 40 Contracting Parties are legally bound by the treaty’s provisions.

[5] Malaysia signed the WHO FCTC on 23 November 2003 and ratified it on 22 September 2005. The CTPR 2004 came into force on 23 September 2004.

Article 2(1) of the WHO FCTC states that in order to better protect human health, Parties are encouraged to implement measures beyond those required by the Convention and its protocols, and nothing in these instruments shall prevent a Party from imposing stricter requirements that are consistent with their provisions and are in accordance with international law.

[6] The core “demand reduction” provisions in the WHO FCTC are contained in articles 6-14 and the core “supply reduction” provisions in the WHO FCTC are contained in articles 15-17.

[7] See Part II Rule 5(2) of the CTPR 2004.

[8] See Part II Rule 5(3) of the CTPR 2004.

[9] See Article 31(1) of the WHO FCTC.

[10] See Article 31(2) of the WHO FCTC.

[11] Djarum is one of the leading “kretek” (local clove cigarettes) companies in Indonesia.

[12] However, the CTPR 2004 provides a definition of “tobacco products advertisement” and “cigarettes”. Part I Rule 2 interprets “tobacco product advertisement” as meaning “any representation, announcement, notification, information, or advertisement made in any manner to any person or to the public for the purpose of promoting directly or indirectly the sale or disposal of tobacco product, and includes advertisement:

(a) by any pamphlet, circular, brochure, programme, price list, label or wrapper;
(b) by displaying any poster, banner, placard, notice or other document on any wall, billboard, or on any other project or thing;
(c) by any writing or painting on any wall, vehicle, calendar, clock, clothing or any other object or thing; or
(d) through any communication, whether between persons and persons, things and things, or person and things, in the form of sound, data, text, visual images, signals or other form or any combination of those forms.”

“Cigarettes” means any product which consists wholly or party of cut, shredded or manufactured tobacco, or of any tobacco derivative or substitute, rolled up in a single or more wrappers of paper, and which is capable of being immediately used for smoking.

[13]  “Carlsberg” sponsors Liverpool and “Chang Beer” sponsors Everton.

[14] Middlesbrough and Tottenham Hotspur are sponsored by “888.com” and “Mansion” respectively.