TOBACCO CONTROL IN INDIA: A LEGAL ASSESSMENT OF HOW FAR HAVE WE COME?

This article was written by Adrisha a student of West Bengal National University of Juridical Sciences, Kolkata.

TABLE OF CONTENTS

1. INTRODUCTION.. 2
2. HISTORY/EVOLUTION OF TOBACCO LAWS. 3
3. RELEVANT QUESTIONS arised on DURING THE EVOLUTION OF TOBACCO LAWS 4
4. RULES AND REGULATIONS REGARDING TOBACCO IN INDIA.. 5
5. CASE LAWS AND DEVELOPMENTS. 6
6. AMENDMENTS. 8
7. VIEWS. 9
8. CONCLUSION.. 10

1.     INTRODUCTION

Tobacco came to India in the Mughal period by Portuguese.[1] Today, India is second largest producer as well as consumer in the world after China.[2] The effect of tobacco on health is not unknown and it is hazardous in any form.[3] There are enough scientific evidence that tobacco causes diseases, disability and even death.[4] India has enacted anti- tobacco law in pursuance of WHO resolution called The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act in 2003. The objective of the act as name suggest is to curb every aspect from manufacture, sale to consumption. Our constitution also promotes and provides directive to state for the improvement of Public health.[5]In pursuance of improvement of public health and awareness the Ministry of Health and Family Welfare has launched National Tobacco Control Programme in 11^th Five Year Plan for the proper implementation and increasing awareness about ill-effects of tobacco in order to fulfil the obligations under WHO-FCTC.[6] Judiciary’s role in promoting anti- tobacco mission is appreciable. Various NGOs and civil societies are involved in the mission to eliminate tobacco from India and make India a tobacco-free country.

The present paper discusses laws present against tobacco and clarifies the position of extent of tobacco control in India. The issues which are to be discussed in the paper are

1. Whether COTPA is efficient to eliminate tobacco from India?
2. What are the challenges faced by legislature and judiciary to eliminate tobacco completely and make India tobacco free country?

2.     HISTORY/EVOLUTION OF TOBACCO LAWS

The present day act, ‘The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production , Supply and Distribution) Act to control tobacco[7] was  enacted in 2003 in order to achieve improvement of  public health enshrined in Article 47[8] of the Constitution, repealing the 1975 act ‘ The Cigarettes( Regulation of Production, Supply and Distribution) Act.[9] The 1975 act was inadequate as it focused only on cigarettes and did not include bidis, cheroots or cigars.[10]Hence, it excluded a large population of tobacco consumers as most of the consumers of bidis are from lower economic background due to their low cost.[11] The act failed as it was observed that there was not significant reduction in the consumption of tobacco due to its non-effective warning.[12] In 1980s and 1990s, International organisations like WHO was recommending its member steps to take strong steps to curb the problem of Tobacco.[13]The39^th World Health Assembly (WHO) in its 14^th plenary meeting in 1986, passed a resolution in which it urged its member states to ensure that non-smokers, are effectively protected from involuntary exposure to tobacco smoke and also to protect children and young people from getting addicted to tobacco.[14] The 43^rd World Health Assembly reiterated the concern regarding tobacco use and urged the member states to come up with legislations and other effective measures and to focus on the risk groups like children and pregnant woman from involuntary exposure to smoke from tobacco, to discourage people from consuming tobacco and eradicate all direct and indirect promotion, advertisement and sponsorship towards tobacco.[15] However, the major breakthrough was the case of Murali S Deora v Union of India[16]in 2001. The Hon’ble Supreme Court said that there is a gap in the legislationregarding smoking in public places because of the failure in enforcement of Executive order and it would be in the interest of public health to make a statutory provision prohibiting smoking in public places in order to protect non- smokers from passive smoking due to the act of smokers.[17] Therefore, the court held that smoking in public would fall in the category of “mischief under public nuisance of penal provisions” of   the country. Delhi state government was the first to ban smoking in public following the Murali Deora[18]judgment, many states followed Delhi. It can be said that Indian health legislation has been at the state level.[19] Then, in 2003, a comprehensive law COTPA was enacted by central legislation.[20]

3.     RELEVANT QUESTIONS ARISED ON DURING THE EVOLUTION OF TOBACCO LAWS

Every ban or prohibition affects one or another industry and generally banning something goes with hues and cries, debate, legal challenge et cetera. The COTPA was enacted in 2003 and notified during 2004-2006 but the Government could make revised smoke-free rules effective in 2008 due to many legal battles with the tobacco manufacturers. They countered every rule of the act.[21] The companies seek preparation time and meanwhile challenged that their right to trade have been adversely affected as advertisement makes major source of income. This act was in question with relation to tobacco farmers and their livelihood.  The tax revenue from tobacco industry is substantial and due to the enactment it came in question but public health was preferred over economy. Also, economy has indirect adverse effect by tobacco consumption as Government’s medical expenditure increases.

4.     RULES AND REGULATIONS REGARDING TOBACCO IN INDIA

The major act which deals with tobacco in India is COTPA, 2003. The key provisions of the act are discussed below. § 4 of the act prohibits smoking in public places except at airports and in restaurants having seating capacity of more than 30 persons, where smoking room has been made.[22] Public place means places where people have access not necessarily to have a right and includes educational institutions, public buildings, public conveyances, hospital, railway waiting rooms, restaurants etc.[23]§5 prohibits any kind of advertisement of tobacco products either directly or indirectly.[24]§ 6 prohibits the sale of cigarettes or other tobacco products in an area within 100 yards of any educational institutions and to people below the age of 18 years.[25] § 24 punishes the offender under §6 with a fine up to two hundred rupees and shall be tried summarily.[26] The amended Juvenile Justice (Care and Protection of Children) Act, 2015 makes it a punishable offense to sell cigarettes or other tobacco products to minors under §77[27] of the act.[28] The offender shall face a jail term of seven years and fine of 1 lakh rupees.[29] § 7 mandates pictorial depictions of skull etc. as warnings on the packets of cigarettes or any tobacco products manufactured or supplied.[30] § 10 mandates the mention of nicotine and tar content in the product in prescribed size of letters with maximum permissible amount of nicotine limits.[31] The FSS act is another legislation which deals with tobacco in food articles. The regulation 2.3.4 of the Food Safety and Standards (Prohibition and restriction on Sales) Regulations, 2011 which was enacted by Food Safety and Standards Authority of India( FSSAI) under the power  given by §92(2)(1)[32] of Food Safety and Standards Act read with § 26[33]  prohibits  any food articles  which contains tobacco or nicotine as ingredients. In pursuance of the above rule many states have banned manufacture and sale of Gutka and Pan- Masala as nicotine and tar are their major ingredients in the interest of Public Health.[34]

5.     CASE LAWS AND DEVELOPMENTS

The Government had ratified the WHO framework Convention on Tobacco Control (WHO FCTC) in 2004 which has played leadership role in bringing attention to issue like smokeless tobacco in global area.[35] It enlists major strategies for reduction of demand and supply of tobacco.[36] India being a party to WTO FCTC, the Union cabinet has approved to accede to protocol under WTO FCTC to curb illicit trade in tobacco applicable to both smoking and smokeless tobacco as adopted under article 15 of WTO FCTC.[37] It lays down whole supply chain control measures from licensing of manufacture of tobacco products and machinery involved, due diligence in production to e-commerce and duty free sales.[38]

The major cases which come up in courts are by tobacco manufacturers against the ban on tobacco by a certain state.

A contradicting approach have been taken by various High Courts of India, one set consider ban on gutka constitutional and other unconstitutional.  The recent decision in Dharampal Satyapal Ltd v The state of Assam,[39]the Guahati High Court held the “Assam Health (Prohibition of Manufacturing, Advertisement, Trade, Storage, Distribution, Sale and Consumption of Zarda, Gutka, Pan masala etc. containing Tobacco and/or Nicotine) Act”, 2013 unconstitutional. The court said that business in tobacco unlike trade in intoxication liquid is not res extra commercium and therefore, completely banning gutka is taking away right to carry on business under article 19(1) (g) of the Indian Constitution. Court also said that article 47 is only a guidance and not a source of legislative power and also in the case of question on legislative competence, state cannot claim competency under Part IV. Here, it held that tobacco comes under Central list and state does not have power to make laws to completely ban in pursuance of public health.[40] The landmark case of Godawat Pan Masala Products I.P. Ltd. & Anr. v. Union of India & Ors[41]held that COTPA being a special law will override the conflicting provision § 7 of earlier food Adulteration Act and held the ban on Gutka to be unconstitutional as ban is violative of article 14 and 19. Also, it said that that notification banning gutka is ultra vires the act and thus, bad in law. Omkar Agency case [42]said prohibition on use of tobacco and nicotine should be in schedule of COTPA and regulation 2.3.4 of FSS act has to yield before COTPA.

In the case of Dhariwal Industries Ltd. v State of Maharshtra,[43] Bombay High Court noted ban on gutka production by various states in pursuance of Food safety regulations,2011 and FSS act, decision of Godawat Pan Masala[44]and relied on various judgments from Kerala High Court , Patna High Court , M.P High Court. The question which arised was whether ban on gutka is unconstitutional? The court answered that the ban is not unconstitutional because it is not creating economic barrier on free flow of trade, on contrary it is imposing prohibition on manufacture, sale, storage and distribution and not import. The court considered the regulation to be in furtherance of art. 47 of the Indian Constitution which emphasises on improvement of public health as primary duty of the state. Hence, the ban on gutka was held to be constitutional.

6.     AMENDMENTS

The latest amendment, made by  The Ministry of Health and Family Welfare, Government of India in ‘Cigarettes and other Tobacco Products (Packaging and  Labeling) Rules, 2008 vide GSR 331 (E) dated April 3^rd 2018 ‘Cigarettes and other Tobacco Products (Packaging and  Labeling)  Second Amendment  Rules, 2018 was notified to be made effective with new rules from September 1^st 2018.[45] The rule says that all packs of tobacco products must have ‘quit line’ of “tobacco causes cancer” and “tobacco causes painful death” “quit today call 1800-11-2356” in white with red background with pictorial warning.[46] The rule is to be applicable on all tobacco products manufactured, imported or packaged on or after September 2018.[47]The other amendment was made to Rule 3(1)(b)[48] in 2014 that 85% of the packaging of tobacco products should have pictorial warning and depiction of throat, mouth and lung cancer.[49] Supreme Court put a stay on Karnataka High Court judgement quashing Government regulations of 2014[50]

There has not been any amendment to COTPA till date, but The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Amendment) Bill 2015 is pending  whose focus lies mainly on the contentious issue of increasing the legal age of  consumption of tobacco and more stringent provisions and bans.[51] The major propositions by the bill are prohibition on use of tobacco products for promoting, marketing or advertising other services, events and goods; in case of brand- sharing tobacco products can’t be used to advertise non-tobacco products which has been prohibited by WHO Framework convention on Tobacco Control(FCTC); tobacco products should be out of public view, to remove ambiguity of point of sale through ban on showcase of tobacco products inside or at start of ship, a ban on sale of tobacco products to person below 21 years of age; pictorial warnings on all Tobacco products; hotels, airports and restaurants to be made no-smoking zones and permitting only on international airports; greater penalties to be put ;ban on spitting  tobacco products  to prevent  spread of diseases like H1N1, TB and Avian Flu; earlier ban of sale of tobacco products to be extended from 100 yards to 100 metres of educational institutions; ban on sale of employing person under age of 18years in tobacco industry; ban on sale of single packets of tobacco; constitute  special courts for offences under the new proposed act and National tobacco Control Organisation.[52]

7.     VIEWS

COTPA act repealed the earlier 1975 law, one of the reasons being it only included cigarettes but not bidis and other local tobacco products. COTPA improved tobacco regulation in India and included all the major local tobacco products.[53] The regulation being the major focus, the act leaves out banning tobacco. The major focus as evident from provisions is smoke industry and the smokeless industry has not gotten much attention. Gotha is one of the most widely used tobacco products in India and still the act just includes in the definition of tobacco products and has made provision to ban them. Having said that, the act has neglected the effect of ingestion of harmful tobacco products but has focused mainly on passive smoking. The implementation has been left in the hands of states which makes the enforcement very non-uniform. As seen in cases in earlier part of the paper, the ban on Gutka and chewing tobacco by state are done through FSS act and tobacco manufacturers try to get away with saying special act COTPA govern us and not FSS as it does not come under the category of “food”.  This demands for better legislation with careful removal of loopholes to be used by tobacco industry to surpass obligations.

8.     CONCLUSION

India has come a long way from 1975 till today. The tobacco control laws along with Judiciary and civil societies and NGOs have helped controlling tobacco consumption to some extent. Still, the problem has not been solved. India should try measures taken by developed countries like tax increase on tobacco products and revenue to be used in improving public health. Major movements against tobacco and sensitisation drive should be done. Government should help farmers in alternate cropping and livelihood. The Amendment bill has many provisions to eliminate the loopholes in the present act and should be enacted as soon as possible. In 2007, Chandigarh became the first city to be declared smoke-free even before the revised rules which sends a positive note that partnership between civil society and administration.[54] In 2010 Sikkim became the first state to achieve the status of smoke-free state.[55] This should be taken as a benchmark and example by the other states.

[1] Jagdish Kaur & DC Jain, Tobacco Control Policies in India: Implementations and Challenges, 55(3) INDIAN J PUBLIC HEALTH 220-227 (2011).

[2]Id.

[3]Gauravi A. Mishra et al , An overview of the tobacco problem in India, 33 INDIAN J MED PAEDIATR ONCOL.,139-145. (2012).

[4]IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Tobacco Smoke and Involuntary Smoking, IARC 83 (2002.)

[5] INDIA CONST. art. 47.

[6] Mishra, supra note 3.

[7] The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, No.34, Acts of Parliament,2003 (India).[Hereinafter COTPA].

[8] INDIA CONST. art. 47.

[9] The Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, No. 49,Acts of Parliament,1975 (India).

[10] The Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975,§ 2 (b).

[11]Mishra, supra note 3.

[12]Id.

[13]Id.

[14] COTPA (2003).

[15]Id.

[16] Murali S Deora v Union of India, 2001 Supp (4) SCR 650.

[17]Id.

[18]Id.

[19] Reddy KS. India’s aspirations for universal health coverage. 373(1) N Engl J Med. 1-5 (2015).

[20] COTPA (2003).

[21] Mishra, supra note 3.

[22] COTPA (2003), §4.

[23] COTPA (2003), §3(l).

[24] COTPA (2003), § 5.

[25] COTPA (2003), § 6.

[26] COTPA (2003), § 24.

[27]  The Juvenile Justice Care and Protection of Children) Act, 2015, § 77.

[28] Tabassum Barnagarwal, Amended Juvenile Justice Act makes tobacco sale to minors punishable, Indian express,(Jan 22 2016, 1:45 AM) https://indianexpress.com/article/cities/mumbai/amended-juvenile-justice-act-makes-tobacco-sale-to-minors-punishable/.

[29]Id.

[30] COTPA (2003), § 7.

[31] COTPA (2003), § 10.

[32] Food Safety and Standards Act,2006 §92(2)(1).

[33] Food Safety and Standards Act,2006, § 26.

[34] Ashok Pradhan, State Yet to ban Gutka, The times of India (Sep 12, 2012 03:12 AM) https://timesofindia.indiatimes.com/city/bhubaneswar/State-yet-to-ban-gutka/articleshow/16359261.cms.

[35]Kaur, Supra note 1.

[36]Id.

[37] Cabinet, Accession to the Protocol under WHO Framework Convention on tobacco control to eliminate illicit trade in tobacco products, Press Information Bureau Government of India ( May 02 2018 03:30 PM) http://pib.nic.in/newsite/PrintRelease.aspx?relid=179052.

[38]Id.

[39] Dharampal Satyapal Ltd. & Anr vs The State Of Assam & Anr, W.P. (C) 1583/2014 (2007).

[40] Id.

[41] Godawat Pan Masala Products I.P. Ltd. & Anr. v. Union of India & Ors., (2004) 7 SCC 68.

[42] Omkar Agency and Ors. v The Food Safety and Standards Authority of India and Ors., AIR 2016 Pat 160.

[43]Dhariwal Industries Ltd. v State of Maharshtra, 2013 (1) Mh. L.J.

[44]Supra note 41.

[45] Sushmita Dey, New Images for pictorial warning ‘quit line’ number on tobacco product packs, The Times of India (Aug. 21 2018 02:56 AM), https://timesofindia.indiatimes.com/india/new-images-for-pictorial-warning-on-packs-of-cigarette-and-other-tobacco-products/articleshow/65478464.cms.

[46]Id.

[47] Id.

[48] Cigarettes and other Tobacco Products (Packaging and  Labeling ) Rules, 2018, Rule 3(1)(b).

[49] Mehal Jain, Pictorial Warning Covering 85% Of Packaging Space Mandatory In All Tobacco Products: SC Makes Stay On Karnataka HC Judgment Absolute, Live law (Aug 15 2018 11:30 AM) https://www.livelaw.in/pictorial-warning-covering-85-of-packaging-space-mandatory-in-all-tobacco-products-sc-makes-stay-on-karnataka-hc-judgment-absolute/.

[50]Id.

[51] PTI, Govt to revise draft amendments to tobacco-control law, outlook ( June 15 2017 07:44 PM) https://www.outlookindia.com/newsscroll/govt-to-revise-draft-amendments-to-tobaccocontrol-law/1076662

[52] SCC, Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Amendment) Draft Bill 2015,  Scc ( Jan 15 2015) https://blog.scconline.com/post/2015/01/15/cigarettes-and-other-tobacco-products-prohibition-of-advertisement-and-regulation-of-trade-and-commerce-production-supply-and-distribution-amendment-draft-bill-2015/.

[53] COTPA (2003), § 3(p).

[54] Kaur, supra note 1.

[55]Id.