Model laws have existed since the 19th century. They mostly aim to impose or provide suggestions for particular content of law and thus to harmonise laws. Most model laws pre-empt choices. Model laws of the Regulatory Institute are different. The purpose of the model laws elaborated by the Regulatory Institute are to facilitate the tasks of regulatory practitioners, be they working for administrations or parliaments, to improve the quality of laws by triggering more conscious choices. The model laws of the Regulatory Institute should serve as inspiration, as a toolbox, checklist, raw material or a basis for the development of an adapted law and optimised as such. The model laws are not intended to be used exactly as they are drafted. They try to point to important decisions to be taken by the regulatory practitioners without pre-empting respective choices. Therefore, they present often choices, be they alternatives, be they add-on modules that can be kept or deleted.
In view of that specific task, the model laws of the Regulatory Institute offer so many possibilities for differentiation that no jurisdiction will use all of them. Consequently, once a decision has been taken regarding the possibilities for differentiation to be used, the law can and should be simplified.
The following alcohol, cannabis and tobacco (ACT) model law does not intend to suggest political choices or intend to influence legislation to a certain direction. Instead, it provides a relatively complete basic pattern for the development of laws or regulation optimised according to the situation in the respective jurisdiction and in particular its culture, its customs, its needs, its administrative system and enforcement capacities. The use of a model law may even liberate energy and capacities for the important political choices. The model law aims to facilitate the development of tailor-made laws and, on average, more complete laws. It shall generate more complete laws without preempting any choices. Hence users of this model law should feel free to modify all the sentences, to add new ones and also to delete those which are not needed.
We have refrained from developing very detailed technical provisions so that the model law is useful for all jurisdictions regardless of their resources or capacities. We thus strived for a low to medium level of technical depth, whilst pursuing the goal of completeness as stated above. The four articles on which this model law is based contain many references to highly technical regulations that go, for certain aspects, further down the road of technicality than this model law and thus point to possibilities for more technical advancement:
- Part 1: Drawing a clear health line under addictive products (alcohol, cannabis and tobacco) regulations;
- Part 2: Drawing a clear health line under addictive products (alcohol, cannabis and tobacco) regulations;
- Regulating alcohol consumption in the absence of a medically determined safe level; and
- Tobacco control regulations: Combating the world’s leading preventable cause of death.
Users of this model law are advised to read these four articles.
In view of the differing resources and capacities each jurisdiction has, the following colour coding is used in the model law:
- Green stands for provisions which are “technically easy to implement” or “unavoidable / essential whilst being of medium difficulty to implement”; therefore the green provisions represent the minimum all jurisdictions should follow an effective and competent alcohol, cannabis and tobacco regulatory framework, with a caveat following three paragraphs below.
- Red is at the opposite end and stands for “technically difficult to implement” or “rarely advantageous whilst being of medium difficulty of implementation”; we thus recommend particular caution before including the orange provisions.
- The remaining provisions are marked in yellow, which stands for “medium technical difficulty to implement whilst being neither unavoidable / essential nor rarely advantageous”.
For a jurisdiction with low implementation capacities, we recommend using all the green provisions and some of the yellow, but discarding the red provisions as a baseline.
For a jurisdiction with medium implementation capacities, we recommend using all the green and most of the yellow provisions, but to be very selective regarding the provisions in red.
For a jurisdiction with high implementation capacities we recommend using all the provisions and developing more detailed provisions for some of the sections, up to the level of technicality that is highest performing and still manageable.
The model law is construed in such a way that it could “stand” with the green provisions alone, but that the sections or provisions in other colours can be added as extension modules.
In the above, we refer to the aspect of technically simple, medium or difficult implementation. This parameter alone should not decide on which provisions to include at the end of the day into a certain regulation. Also the overall quantitative implementation and in particular enforcement capacity should be considered, and this even in technically very advanced jurisdictions. Hence the following questions need to be considered:
- Do we have the necessary (quantitative) enforcement capacities to enforce all the provisions we deem ideal?
- If not, which provisions shall we mainly focus on in terms of enforcement, where shall we steer our resources?
- Shall we nonetheless maintain the other, low-enforcement-priority provisions that we are probably unable to enforce, hoping the provisions act as a deterrence? Can we use enforcement via third parties to extend the zone of enforceable provisions (see Sub-Sections 10.5.3 and 11.4 of the Handbook “How to regulate?”)? Or do we prefer to eliminate the low-enforcement/priority provisions so as to avoid an uneven playing field, which disadvantages those operators who respect the law compared against those who only do so where there is effective enforcement?
As a result of this sequence of questions, even some provisions marked in green will need to be eliminated at the end of the day, and this even in technically very advanced jurisdictions. Again, we encourage the regulator to be selective.
Where two or more bits of text are in [ … ], separated by an “OR”, a choice is suggested. Short bits of text for which a choice is to be made are simply marked by a separating “ / “. Longer bits of text for which there is a choice are marked with “(Var. 1)”, “(Var. 2)”, …, “Var.” standing for “variant”.
Sometimes, two variants for the same topic have different colour codings. In these very few cases, it might be commendable for jurisdictions with a medium or high implementation capacity not to use the green text.
Text in “( … )” is meant to indicate how a loophole could closed or gives another recommendation for use.
The model law contains a few duplications which are not accidental, but would need to be eliminated or replaced by references where all sections and provisions are kept. As it is a model law, we cannot predict which sections and provisions will be selected, and each section or provision thus should work also when standing alone.