Tobacco Control Laws in India: Its Ambit, Failures and Successes

Do tobacco control laws in India have any real impact on tobacco consumption and consumer behaviour? To what extent can the state be held responsible for increased tobacco consumption?  The Indian state has tried to address both these questions by decreeing on choice and restricting consumption. However, one can’t be sure if it has had any tangible impact on production or consumption. Moreover, most of these laws affect and proscribe small retailers, utterly negligent of the big players that promote tobacco implicitly.  In such a scenario, Harshita Jain questions if tobacco control laws in India are capable enough to be effective?

tobacco control laws in India

By Harshita Jain, a second-year student from National Law University, Jodhpur.

Introduction

‘Choice’ is one’s own rational deliberation followed by wish and reason. Aristotle theorised the word ‘prohairesis’, which loosely means a ‘reasoned choice’.

A choice is more than a reason.[1]

Tobacco consumption and smoking are becoming a prohairesis due to easier access, lack of regulation, and fancy depiction in popular media and OTT platforms.

If smoking is one’s own choice, should the Indian State be responsible for regulating one’s choice? Or does it solely lie in the domain of an individual’s autonomy?

This article will reason both from choice and state, drawing attention towards tobacco control laws in India that aid decision making.

The Constitution of India has given prime importance to the right to a healthy environment and air under article 21 of the Constitution.[2]

Also, In K. Ramakrishnan v. State of Kerala, the Supreme Court has acknowledged the ill effects of smoking Tobacco on non-smokers:

“tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the count”[3].[4]

Multiple Supreme Court rulings establish that the right to health is an intrinsic part of our fundamental right to life under Article 21 of the Constitution.[5]And tobacco consumption, selling and impact on non-consumers pose a severe threat to their lives.

The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) is the principal legislation governing Indian laws on tobacco control in India.

This Act was adopted as a part of an obligation to ratify the Framework Convention on Tobacco Control (FCTC), the first public health treaty negotiated by the World Health Organisation in 2003.[6]

Where Are The Loopholes?

Section 4 of COTPA prohibits smoking in any public place but makes an exception to hotels or restaurants with a capacity of more than 30 people.

Section 2(e) of COPTA gives clear directions to make separate smoking rooms in hotels or exhaust directly to the outside, not exposing non-smoker.[7] However, the non-enforceability of this section has severe consequences under the Indian Penal Code (IPC), as every COTPA officer is deemed a public servant in the Act.[8] Thus, any failure to perform their duty and checks under the COTPA Act can bring liability under Sections 166, 107, 109 and 110 of IPC.[9]

Another important area under this Act pertains to the advertisement of cigarettes and tobacco products. The COTPA Act prohibits advertisements directly or indirectly promoting such products.[10]However, it does not ban ‘in pack’, ‘on pack’ or ‘point of sale’ advertisements and excludes Beedi, Cigar and Cheroot.

Under the Act, cigarettes are defined as ‘any roll of tobacco wrapped in paper or any other substance not containing tobacco/containing tobacco’.[11] But, in reality, smokeless tobacco like Mawa, Khaini or Pan Masala and other small packets of cigarettes remain unregulated. Additionally, it also excludes e-cigarettes.

Most of us have been privy to surrogate advertisements of Vimal Pan Masala, Rajnigandha, Kamla Pasand, Pan Bahar endorsed by many Indian celebrities.

Many tobacco companies undertake several sophisticated campaigns to market their products to different socio-economic groups. For instance, ‘White’, a famous cigarette brand of Godfrey Phillips India (a Phillip Morris affiliate), has been sponsoring the so-called ‘bravery awards’ since 1990.[12]

Similarly, for instance, Vimal Pan Masala has been endorsed as Vimal Iliachi. In addition, the maker of Marlboro Cigarettes, Philip Morris International (PMI), sponsored different competitions for students[13].

Ironically, PMI has also launched e-cigarette products IQOS with the tag line of promoting a smoke-free approach. These advertisements are intended to obliquely associate tobacco brands with positive messaging through events like award shows, etc.

E-Ciggarattes And Hookah Bars

The lack of regulation on such surrogate advertisements is a significant loophole in the Act. Thus, E-cigarettes, a misnomer, has been conveniently excused from the purview of this Act.

E-cigarettes’ vaping has fine nicotine particles and contains diacetyl, which is linked to severe lung diseases such as lung cancer, emphysema, pulmonary fibrosis, and cardiovascular events.[14]

Fortunately, 2019 saw a complete ban on the sale of e-cigarettes, but within eight months, there was a huge rise in the black market of such products imported from China and made readily available. Clearly, amending the law or a complete ban is not a sure shot solution. Another unregulated area is hookah bars.

Although governments generally apply section 144 (unlawful assembly)[15] to shut down hookah bars, there is no central legislation governing it throughout the country.

Nevertheless, a person is free to purchase hookahs from a shop and consume it at home unless any particular restriction by the state government. Most bars also rely on the 2014 Supreme Court Judgement, Narinder S. Chadha And Ors vs Municipal Corpn Of Greater.

The Judgement allowed the sale of tobacco products, including hookahs, in eating joints in smoking areas of licenced premises and quashed circulars issued by civic bodies in various states banning their sale in such premises.[16]

Point Of Sale Advertisements And Mcguire’s Theory

Tobacco can be enticing, especially for impressionable minds. McGuire’s communication persuasion theory states that more exposure and receptivity could lead to a higher likelihood of persuasion and adoption of the advocated behaviour.[17] That is what is happening in ‘point of sale’ advertisements directly at retail stores.

Many grocery and retail stores display the branded tobacco products at a separate space, sometimes near candies or at the paying counter. [18]

Many private stores have attractive counters with products that have tobacco content. So then, are we violating the right to health and directive principle under Article 47 by allowing such on-counter display? [19]

Promoting any kind of tobacco product is strictly prohibited in COPTA; it reads:

“no person for any indirect or direct pecuniary benefit with display or permit to display any advertisement of cigarettes, erect any boarding, manner or no shop should promote the use of such product”[20].

However, the word ‘promoting’ under the Act has been largely undefined. Thus, such lacunae in its definition give ample space for unregulated advertisement. COPTA also needs to incorporate more robust retail policies and regulations concerning this issue.

Performative media has had an increased representation of tobacco consumption as products that are trendy and stress releasing. No matter the anti-tobacco warnings, these scenes and the placement of tobacco can largely influence young people’s choices (especially teenagers and adolescents).

However, there is no easy way to keep a tap on the same since such scenes do not fall under the ambit of the word ‘promoting’ and ‘advertisements or sponsorships’ in the COPTA Act.

However, McGuire also gave the inoculation theory, which shows how to prevent such persuasion and build resistance. This is one of the methods tried in the US among younger kids to prevent them from smoking due to peer pressure.[21]

Adopting similar techniques at the institutional level could help achieve our aim too.

Certain high courts ruling have proscribed selling cigarettes within 100 yards of educational institutions.[22] However, minors or adolescents often smoke or consume tobacco products to deal with pressure, treating it as an easy escape.

Currently, access to such products is more convenient since there is no restriction on internet sales of small packets of cigarettes. While several states had imposed a ban on single cigarettes and gutka, there is no central legislation yet. Further, multiple tax slabs also work as a hindrance in making all-India legislation.

How Beneficial is the New Amendment as a Tobacco Control Law?

A state can profoundly influence its subjects’ choices. However, this coercion can be legitimate and positive if done with a healthy intention, such as ensuring the right to health.

Recently, amendments to the Cigarettes and Other Tobacco Products Act (COTPA) Amendment Bill 2020 got proposed.

The new Bill recommends prohibiting tobacco sales and consumption among people under twenty-one years of age, from earlier eighteen years. If implemented, it could make selling loose cigarettes a cognisable offence with up to seven years imprisonment.[23]

The 2020 Bill imposes a harsher penalty. However, it’s prudent to reason against a punishment that extends up to seven years. As the same could be disproportionate in the case of small and micro-level retailers selling loose cigarettes. The sentence, in this case, is similar to causing death by negligence and other grave offences.[24]

The same has been criticised heavily by the Federation of Retailers’ Association of India (FRAI). It could also be a fatal step since it doesn’t rule out the possibility of snowballing black markets. While this could prove disastrous for small-scale retailers, many companies could profit from black-marketing their own products.

The Bill is ironically forgiving of leading tobacco-producing industries and companies.

Most such brands which manufacture tobacco products advertise implicitly through Corporate Social Responsibility. However, they often mask their role in increasing consumption by promoting environmental protection, health rights and education.

Further, online advertisements of tobacco products should also have stringent penalties and regulations. But, again, this is something that the Bill completely misses.

The need of the hour is to have a holistic and broad understanding of the issue that understands the nexus and interplay of big brands and their indirect promotions that target adolescents and other consumers.

Ban on sale of loose cigarettes is a step in a good direction but should involve proportionate penalties for small retailers with comparatively less involvement in the issue.

At the same time, the government should aid in cost-free programmes to help overcome tobacco addiction. Such initiatives can include counselling and neuro-linguistic and cognitive behaviour therapy, among other things.[25]

Way Forward

In the past, the Indian courts have delivered exemplary judgements to aid strict legislation against tobacco consumption. Similarly, the court has also recognised the right to health under the  Constitution.

For instance, in the Karnataka Beedi Industry Association v. Union of India, the court increased pictorial health warnings on tobacco product packaging to 85 per cent. [26]  Further, there are cases enforcing compliance with COTPA Rules. For example,  in Kerala, the court observed that the right to life could circumscribe the right to freedom of speech and expression.[27]Thus, ordering to crop the brand names of tobacco products in film and television programmes. [28]

The Indian Courts have been aiding this cause, which means we are privy to the increased health risk of consuming tobacco.

Furthermore, according to a study, Covid has led to a fall in tobacco consumption due to increased prices, lack of availability and fear of pandemic. Therefore, further allowing quitting.  In this regard, Himanshu Gupte has written:

“The proportion of users who abstained among those who were aware about the association of COVID-19 and tobacco use was twice (51%) that among those who were not aware (25%).”[29]

Thus, COVID is an opportunity for the government to aid legal interventions that can help us to strengthen our guard against tobacco products and similar substances of self-destruction.

Our constitutional duty is to interpret the right to health inclusively to extend its benefits to maximum people.

Endnotes

[1] Chamberlain, Charles. “The Meaning of Prohairesis in Aristotle’s Ethics.” Transactions of the American Philological Association (1974-), vol. 114, 1984, pp. 147–157. JSTOR, www.jstor.org/stable/284144.  Accessed 23 July 2021.

[2]Smt. Nilabati Behera Alias Lalit vs State of Orissa and Ors ,1993 AIR 1960.

[3] Murli S. Deora v. Union of India, AIR 2002 SC

[4]  K. Ramakrishnan v. state of Kerala, AIR 1999 Ker. 385.

[5] 2. Deepak Nitrite Ltd. v. State of Gujarat, AIR 2004 SC 3407; M.C. Mehta v. Kamal Nath, AIR 2000 SC 1997; and Murli S. Deora v. Union of India, supra note 3. See also Journal of the Indian Law Institute, JULY-SEPTEMBER 2009, Vol. 51, No. 3 (JULY-SEPTEMBER 2009), pp. 351-367.

[6] Framework Convention Alliance, Implementing FCTC in India, July 23, 2021, https://www.fctc.org/wp-content/uploads/2018/05/FCTC-implementation-India-2010.pdf, https://www.fctc.org/.

[7] Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, s.2(e).

[8] The Indian Penal Code, 1860, s. 21.

[9] Journal of the Indian Law Institute, JULY-SEPTEMBER 2009, Vol. 51, No. 3 (JULY-SEPTEMBER 2009), pp. 351-367.

[10] Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, s.5.

[11] Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, s.3(b).

[12]Id at 9. See also Bansal R, John S, Ling PM. Cigarette advertising in Mumbai, India: targeting different socioeconomic groups, women, and youth. Tob Control 2005; 14:201-06.

[13] Anno Bhuyan, A Tobacco Company-Funded Foundation Is Using a Contest to Target School Children, Wire, 22 March 2021, https://thewire.in/business/philip-morris-tobacco-smoking-school-children.

[14] “Front Matter.” Tobacco Control 24, no. 3 (2015). Accessed July 23, 2021. http://www.jstor.org/stable/24842465.

[15]The Criminal Procedure Code, 1973, section 144.

[16] Narinder S. Chadha v.  Municipal Corporation of Greater Mumba2014 SCC Online SC 981.

[17]Mc Guire WJ. Public communication as a strategy for inducing health-promoting behavioural change. Prev Med 1984; 13:299-319.

[18] Cummings KM, Sciandra R, Lawrence J. Tobacco advertising in retail stores. Public Health Rep. 1991;106(5):570-575.

[19] The Constitution of India, article 47.

[20] Id. at 10.

[21] Compton, Josh. (2013). Inoculation theory. 10.4135/9781452218410.n14.

[22] Naya Bans Sarv Vyapar Association vs. Union of India and Ors. (November 9, 2012) W.P. No.7292/2011 (The High Court of Delhi, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20121109-naya-bans-sarv-vyapar-assoc.-v. , Dinar Yashwant Sohoni v. State of Maharashtra, PIL No. 98 of 2013, High Court of Bombay (2014). Available at https://www.tobaccocontrollaws.org/litigation/decisions/in-20140225-dinar-yashwant-sohoni-v.-state.

[23] Cigarettes and other Tobacco Products Amendment Bill 2020, Ministry of Health and Family Welfare, 22 July 2021, https://main.mohfw.gov.in/, https://main.mohfw.gov.in/newshighlights-32.

[24] The Tribune, Retailers, oppose proposed amendments to COTPA Bill, 22 July 2021, https://www.tribuneindia.com/, https://www.tribuneindia.com/news/chandigarh/retailers-oppose-proposed-amendments-to-cotpa-bill-199172.

[25] National Institute on Drug Abuse, Principles of Drug Addiction Treatment: A Research-Based Guide (Third Edition), 22 July 2021, https://www.drugabuse.gov/, https://www.drugabuse.gov/publications/principles-drug-addiction-treatment-research-based-guide-third-edition/frequently-asked-questions/what-drug-addiction-treatment.

[26] Karnataka Beedi Industry Association and Anr. v. Union of India and Anr., Special Leave Petition (C) Nos. 10119-10121, Supreme Court of India (2016). Available at https://www.tobaccocontrollaws.org/litigation/decisions/in-20160504-karnataka-beedi-industry-assoc.

[27] Kerala Voluntary Health Services v. Union of India, et al., WP No. 38513, High Court of Kerala at Ernakulam (2012). Available at https://www.tobaccocontrollaws.org/litigation/decisions/in-20120326-kerala-voluntary-health-servic.

[28] Mahesh Bhatt vs Union of India and Ors. (January 23, 2009) Writ Petition (Civil) No. 18761 of 2005 (The High Court of Delhi, India). Available at http://www.tobaccocontrollaws.org/litigation/decisions/in-20090123-mahesh-bhatt,-et-al.-v.-union-.

[29] Gupte, Himanshu A et al. “How has the COVID-19 pandemic affected tobacco users in India: Lessons from an ongoing tobacco cessation program.” Tobacco prevention & cessation vol. 6 53. 14 Sep. 2020, doi:10.18332/tpc/127122

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