Should there be a mandatory license for the commerce of tobacco products?

Introduction:

The use of tobacco poses a major public health problem around the globe, it is identified as a prime cause of mortality and morbidity across the globe and has become equivalent to that of an epidemic in scope and extent. The use of tobacco doesn’t only causes a health crisis but an environmental one too, for example, Cigarette smoke constitutes more than 7000 different kinds of toxin out which 69 are carcinogenic. The consequences of tobacco use result in a huge loss of human lives, in India alone 12 Lakhs of people die due to tobacco use every year, out of the 12 lakhs, 2 lakh of people die due to second-hand smoke. Almost 30 percent of all cancer cases in India can be traced back to tobacco use in India. Thus, when Tobacco industries attempt to use sustained tactics, such as targeting small children by inducing the vendors to sell candy and biscuits, we need proper legislation such as mandatory licensing to counter the tobacco epidemic.

Brief History of Tobacco Regulation 

It took centuries to identify the detrimental effects on the health and the environment of tobacco use, in India its use can be traced back to the 16th century. The magnitude of hazards posed by the use of tobacco was first countered by the Cigarettes (Regulation of Production, Supply, and Distribution) Act, 1975 (The Cigarettes Act) which envisaged mandatory warning that tobacco use is injurious to the health of all packages and in all the advertisements, the Act, however, was limited in its scope as it only included cigarettes and excluded other tobacco products. A need was felt for comprehensive legislation for the regulation of tobacco.

In 2003, The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, (COPTA) was introduced. In the statement and object of the Act, it was highlighted that tobacco was regarded as a major public health hazard, one of the major aims of the Act was to discourage the use of tobacco-based products among minors. It introduced a ban on smoking in public places, promotion, advertisement, and sponsorship of tobacco-based products. COTPA is currently the law that regulates the sale and distribution of tobacco and tobacco-based products.

Further, the Supreme Court, while acknowledging the COPTA Act, in the case of Murli S. Deora v. Union of India[1], realizing the seriousness of the problem that tobacco poses towards public health and the environment directed both the state and central government to take efficacious steps prohibiting smoking in public places.

The Supreme Court stated: 

“Fundamental right guaranteed under Article 21 of Constitution of India, inter alia, provides that none shall be deprived of his life without due process of law. Then – why a non-smoker should be afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously – ‘yes’. Undisputedly, smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution.”[2]

A Tobacco regulatory framework also finds much backing in the constitutional law, several articles impose such a duty on the state such as; Article 21 makes it the responsibility of the state to frame its policy in the direction which secures the right to a healthy life, the DPSP article 39 guide the state to make its policy so that the “children are given opportunities and facilities to develop in a healthy manner”[3] and under article 51 provides for the state to respect international obligations which India being a party to Framework Convention on Tobacco Control creates an obligation on the state.

International Perspective

In 2005 the WHO introduced the Framework Convention on Tobacco Control (FCTC) which aimed at a coordinated global effort to cut down on tobacco use. India was a signatory to the convention and later ratified the same in 2004. It laid down a comprehensive framework of obligations that required the member states to impose an efficacious tobacco regulatory framework.

The primary evil which the convention aims to fight is laid down in Article 5 Clause 3 of the convention which says that policies relating to public health should be saved from the commercial interest of the tobacco industry, stated: “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.”[4]

We have seen that tobacco-based companies often use shrewd and cunning advertisement tactics to bring in more customers and many times these tactics are directed towards young adults and children. Further, to counter the advertising tactics of the tobacco industry the article 16 of the convention requires the party states to prohibit and punish the free distribution of tobacco products to the public and especially minors. Article 16 clause 7 of the convention states: “7. Each Party should, as appropriate, adopt and implement effective legislative, executive, administrative or other measures to prohibit the sales of tobacco products by persons under the age set by domestic law, national law or eighteen”.[5]

Why a mandatory license for the sale of tobacco should be necessary?

There are myriad reasons why the sale of tobacco should be heavily regulated and licensing has delivered a big blow to the proliferation of tobacco-based products.

A licensing framework to regulate the commerce of tobacco can be a very powerful means to an end. Such a license framework is made such that if a vendor or firm violates its rules it can be revoked. A licensing framework can also be used to counter the predatory nature of the tobacco industry by ensuring compliance with the licensed vendor of the rules and regulations of the Act.

The main problem that the COPTA Act solves or tries to solve is the sale of tobacco-based products to minors, curbing the sale of tobacco by making licenses mandatory for its sale will prevent access to these products by children and help in reducing the cases of nicotine addiction.  In a no licensing framework, a vendor might sell tobacco-based products to minors with little to no punitive or regulative Action. However, in a licensing framework, a vendor will be reluctant in selling tobacco products to minors in fear of revocation of his license and other punitive punishment under the COPTA and Juvenile Justice Act.

It was a common tactic by the tobacco-based companies to induce the vendors to sell non-tobacco-based products, like candies and biscuits, in the hopes that it would attract children and minors. The license of tobacco sale mandates that such a licensed vendor cannot sell non-tobacco-based products thus, prevents the luring of children to consume tobacco-based products. Also, under COPTA, 2003 sale of any kind of tobacco-based products is prohibited.

Removing mandatory licensing for the sale of tobacco-based products may also remove many of the protections and regulation which COPTA, 2003 and Juvenile Justice Act, 2015 have laid down. For example, COPTA lays down that a no tobacco products sale can be conducted within 100 yards of an educational institution so as to not attract minors. If no license is required for the sale of tobacco protections such as the 100-yard rule would not be implemented.

Further, mandatory licensing can help in decreasing the number of Tobacco based retailers by limiting them in an area and licensing can also be used in generating funding which can help fund the licensing system itself. 

Lastly, India is a signatory to the WHO FCTC under which it is mandated that the member state of the convention should prevent and prohibit free distribution of tobacco to the general public. The phrase “free distribution” means that the state must prevent unlicensed commerce of tobacco, thus the Indian government is under international Obligation to preserve a licensing framework in the commerce of tobacco.

Conclusion

It cannot be disputed that the use of tobacco is harmful to society as a whole, any cost-benefit analysis of the use of tobacco will conclude that the cost of tobacco is way higher than its benefits. In India alone, 12 lakh people die every year due to tobacco use out of which 2 lakhs of deaths are people who don’t consume any tobacco products. Further, many young adults and teenagers are falling victims to the predatory practices of the tobacco industry. The licensing regime under COPTA combats many of the evil of the tobacco industry and the practices of the vendors. We saw how a licensing framework can protect our young citizens from becoming addicted to tobacco and how the licensing framework provides also many security and protection provided by COPTA and Juvenile Justice Act. So, Should there be a mandatory licensing framework for the commerce of tobacco? The answer is yes, it serves the interest of the Public good and upholds our constitutional values.

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References:

[1] AIR 2002 SC 40

[2] AIR 2002 SC 40.

[3] Indian Const. Art. 39(f).

[4] Article 5(3), Framework Convention on Tobacco Control, 2005.

[5] Article 16(7), Framework Convention on Tobacco Control, 2005.

Other Sources:

1. Cigarettes (Regulation of Production, Supply, and Distribution) Act, 1975
2. The Cigarettes And Other Tobacco Products (Prohibition Of Advertisement And Regulation Of Trade And Commerce, Production, Supply And Distribution) Act, 2003.
3. Framework Convention on Tobacco Control, 2005.
4. AIR 2002 SC 40.       
5. Ashok R. Patil, Report On Tobacco Control Laws In India: Origins And Proposed Reforms, NLS (Nov. 15, 2020), https://www.nls.ac.in/wp-content/uploads/2020/11/Tobacco-Control-Book-Final-proof-to-print.pdf
6. R. Prasad, Sale of tobacco products only through licensed shops, The Hindu (Sept. 26, 2017, 10:33 PM) https://www.thehindu.com/sci-tech/health/sale-of-tobacco-only-through-licensed-shops/article19758391.ece
7. Demand for tobacco vendor licensing, The Hindu (Aug. 20 2019, 11:03 PM) https://www.thehindu.com/news/national/other-states/demand-for-tobacco-vendor-licensing/article29184848.ece