Introduction:
The line goes “beedi jalai le jigar se piya”. Statistics number more than 120 million tobacco users in our country. As the beedis the market are also lit, to indulge the country flock. No wonder why Indians relish and resonate with their idols taking a puff on screen. But the laws are to prove villains here.
Rampant usage of tobacco is no secret. When it comes to regulating tobacco usage, we are faced with two contradictory positions, on one hand, the health hazards it induces mandates regulation, on the other hand, the tobacco industry proves employment to a large chunk of the population, so blanket regulations consequentially affect their livelihood. A fair share of the latter includes retailers of tobacco products, any changes in the law are to be starker on their lives. With the publishing of the proposed amendment on Tobacco law by the Ministry of Health and Family Affairs, the plight of retailers has come to the epicenter of discussion. Federation of Retailers Association of India (FRAI) has urged the policymakers to recall the amendment, as it can have a devastating effect on their lives.
How proposed amendment in tobacco law will affect retailers?
Cigarettes and Other Tobacco Products(Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution)(Amendment) Bill 2020 have proposed changes to existing Tobacco Laws. The reforms include raising the age bar to 21 years for buying cigarettes, controls in in-shop advertising, and prohibiting the selling of loose cigarettes. These changes are believed to result in grave consequences to retailers.
Section 5 of the proposed amendment prohibits advertising cigarettes and tobacco products through any medium. This includes posters, billboards, and other audio or visual promotions employed by retailers. Penalty for violation of this norm is elevated to fifty thousand rupees at the first instance and one lakh at the second, as per section22. Moreover, section 6 bans the sale, offer for sale, permit the sale of, cigarette or any other tobacco product to a person below 21 years and within one hundred meter radius of educational institution. According to section 24, Any person who contravenes the provisions of section 6 shall be guilty of an offense under this Act and shall be punishable with imprisonment for a term, which may extend to seven years, and with a fine which may extend to one lakh rupees. Section 7 mandates the sale of cigarettes and other tobacco products only in sealed, intact, and original packing. A violation of this section can invite far-reaching punishments. Section 20 prescribes, for the first punishment with imprisonment for a term, which may extend to one year, or with fine which may extend to fifty thousand rupees, or with both, and, for the second or subsequent conviction, with imprisonment for a term which may extend to two years and with fine which may extend to one lakh rupees. This is intended to serve as an impetus to discontinue the practice of the selling of loose cigarettes. And by section 27, offenses under this Bill are made cognizable.
Tobacco Regulations in India: A Legal Backdrop
Smoking was prevalent in India from 2000 BC, it also finds mention in Atharvaveda. Tobacco was introduced by the Portuguese around the 17th century.
Cigarettes (Regulation of Production, Supply, and Distribution) Act, 1975
This was the very first anti-tobacco legislation at the national level. This Act was contained to the display of statutory warning ‘Cigarette Smoking is Injurious to Health’ on cigarette packs and advertisements. This also specified restrictions for the production, supply, and distribution of tobacco. The Act included penalties and the confiscation of tobacco on the breach of its provisions. However, non-cigarette tobacco products, such as beedis, gutka, cigars, and cheroots were not brought within the purview of this Act, which was a serious flaw of this legislation
Tobacco Board Act, 1975
This Act instructs the formation of The Tobacco Board. The Act regulates the production, import, and export of tobacco.
Prevention of Food Adulteration Act, 1955
This Act made it mandatory to display a health warning to all tobacco products, stating chewing tobacco to be injurious. Tobacco was brought within the purview of ‘food’ under this Act.
Prevention and Control of Pollution Act, 1981
Smoking was considered as an air pollutant within this Act
The Motor Vehicle Act, 1988
This Act made smoking illegal in a public vehicle.
Executive Order
Central government by an executive order in 1990 pushed for a total ban on smoking in public spaces like trains, conference halls, busses, and educational institutions. It was mandatory in these locations to display a billboard prescribing the ban. Smoking in such crowded places can have far-reaching health consequences on a vast number of people, and a ban was made to that effect.
Amendment to Cinematograph Act
As per the amendment of the Cinematograph Act in 1991, scenes endorsing or promoting the consumption of tobacco was banned.
Amendment to Drugs and Cosmetics Act
Central government pushed forth an amendment to the Drugs and Cosmetics Act in 1940, which prohibited the manufacture and usage of toothpaste and toothpowder having tobacco.
Amendment to Cable Television Networks (Regulation) Act
This amendment in 2000 mandated penalties and imprisonment for advertisements endorsing usage or trade of tobacco on cable TV.
The Ministry of Health
The Ministry of Health took a step further on On World No Tobacco Day 2005 and curtails the portraying the usage of tobacco in movies and television. All the movies, including foreign films prior to this date has to add a heath warning in such scenes. Along with those advertisements on tobacco on national television and All India Radio was made illegal. This order included a curb on the sale of tobacco near educational institutions.
Ban on Public Smoking
On October 2, 2008, the government came with a ban on smoking in public places, offices, restaurants, bars, and open streets. This was a gesture to protect the rights of the nonsmokers and safeguard them from passive smoking.
Cigarettes and Other Tobacco Products Act (COTPA), 2003
This multifaceted tobacco legalization replaced the Cigarettes Act of 1975 and also included cigars, beedis, cheroots, pipe tobacco, hookah, chewing tobacco, pan masala, and gutka. The comprehensive law came into force in 2003; according to this, direct and indirect advertisements of tobacco products, smoking in public places, sale of tobacco to minors, and smoking within a radius of 100 yards of educational institutions are all prohibited; it also included a mandatory display of pictorial warning and mandated testing of tar and nicotine content of all tobacco products.
WHO
India became a Party to the WHO Framework Convention on Tobacco Control on February 27, 2005. After being a signatory to this, Tobacco control mechanisms gained momentum and there was better implementation of control policies.
Regulation 2.3.4 of Food Safety and Standards (Prohibition and Restrictions on Sales) Act
According to this regulation by the Food Safety & Standards Authority of India (FSSAI), issued in 2011, tobacco and nicotine shall not be used as ingredients in any food products, and products like Gutkha were banned.
The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019
The government took a proactive role and banned e-cigarettes in India.
Besides those mentioned above several legislative measures were taken by states which were instrumental in regulating the usage of tobacco.
International Perspectives
WHO Framework Convention on Tobacco Control (WHO FCTC) is the internationally recognized foundation for drafting national policies for tobacco control. These national policies on the lines of WHO FCTC are expected to eliminate the illicit trade of tobacco products that increase the accessibility and affordability of tobacco and undermine government revenues. The WHO FCTC recognizes that tax and price measures are a powerful, cost-effective tool for reducing tobacco consumption, particularly among young people. Prominent health warnings on tobacco packages are an important tool for communicating the specific risks of tobacco use which – in combination with other measures to reduce tobacco consumption – can encourage quitting. Article 5.3 of the WHO FCTC requires Parties, in setting and implementing their public health policies with respect to tobacco control, to protect these policies from “commercial and other vested interests of the tobacco industry in accordance with national law”.
Article 8 of the WHO FCTC requires Parties to implement legislative, executive, and administrative measures that provide protection from exposure to tobacco smoke in “indoor workplaces, all public transport, indoor public places and, as appropriate, other public places”. Reducing exposure to second-hand tobacco smoke benefits health in many ways, such as by significantly reducing tobacco consumption Article 11 of the WHO FCTC requires Parties to implement laws to ensure that tobacco labeling is not false, misleading, or deceptive. Article 13 of the WHO FCTC requires Parties to implement a comprehensive ban on all forms of tobacco advertising, promotion, and sponsorship, to the extent that this is possible under their national constitutions[1].
In many countries, the implementation of obligations under the FCTC takes place against the backdrop of the obligations they have assumed as members of the World Trade Organization (WTO). WTO Agreements of potential relevance to domestic tobacco control laws include the General Agreement on Tariffs and Trade (GATT), as well as the Agreement on Technical Barriers to Trade (the TBT Agreement), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (same)
Case Laws
J. Anbazhagan v. Union of India [April 26, 2018][2]
A writ petition was filed by J. Anbazhagan, a member of the Tamil Nadu legislative assembly for highlighting the illegal production, assembling, and bargain of gutka and other similar Tobacco products and requested the court to make a free examination of the matter. Mr. Anbazhagan affirmed such sales were conveyed out in arrangement with several high officials of the government. The Court came to the analysis that, that it was urged to pick up this matter as the contention involves the right to health and furthermore guided that the Central Bureau of Investigation investigate the matter, since, among other reasons, national administrative authorities were included.
Meanwhile, the claim from the opposite side was that the Court clarified that the definition of “food” under Section 3(j) of the Food Safety Act includes any substance, whether processed, partially processed, or unprocessed, which is intended for human consumption and that the definition undoubtedly was wide enough to include gutka, and other forms of chewable tobacco/nicotine products intended for human consumption. It was elucidated by the court further that, India’s omnibus tobacco control law, COTPA, and the Food Safety Act were not in conflict, but must be read in harmony with each other as COTPA does not contain a non-obstante clause that excludes the operation of other laws.
Health for Millions Trust v. Union of India [January 08, 2018][3]
Utilizing the authority given by India’s omnibus tobacco control law, the legislature put forward a novel graphic health warnings in October 2014 that, along with other things, changed the graphic health warning size from 40 percent of one side to 85 percent of both sides of tobacco product packaging and amended the rotation scheme of the warnings. The Karnataka Beedi Industry Association, the Tobacco Institute of India, and other pro-tobacco came forward to question the validity of this order. Consequently, Karnataka High Court – Bengaluru, made an injunction to the said order. However, a petition was pursued by tobacco control advocates, the court lifted the stays, and a division bench of the court asserted the decision on appeal.
Again appeal was made to Supreme Court to challenge this ruling. Clearing the route for prompt execution of the matter Supreme Court, directed that the matter be decided within six weeks in the Karnataka High Court. After the completion of hearings, the division bench of the Karnataka High Court struck down the 2014 rules, and the Government and public health groups took the matter to the Supreme Court. The Supreme Court stayed implementation of the Karnataka High Court order and finally disposed of the case on March 12, 2018. The Court stated: “[W]e are inclined to think that health of a citizen has primacy and he or she should be aware of that which can affect or deteriorate the condition of health. We may hasten to add that deterioration may be a milder word and, therefore, in all possibility the expression ‘destruction of health’ is apposite.” India’s 85% graphic health warning rules accordingly remain in effect for now
Restaurant and Lounge Vyapari Association, Bhopal v. State of Madhya Pradesh [August 21, 2015][4]
The subject matter of the case is two orders made by Bhopal Government prohibiting the hookah bars. The Restaurant and Lounge Vyapari Association challenged these orders. As a result court quashed both orders, on the note that these orders are of general nature and do not prescribe to the violations mentioned in COTPA. However, Court made a point to add that, state can make a similar order for hookah bars operating near to educational institutions.
Conclusion
Indians constitute a fair share of Tobacco users in the world. Varied health issues in it are found to cause on these individuals is alarming. Awareness and medical help are found to be effective strategies for these individuals. However recent concerns range to secondhand smoke which causes lung cancer, heart diseases, and other diseases without the individual smoking. This is also known as passive smoking. Consequently, there is a great uproar for better policies and stringent implementation of Tobacco laws.
Recent amendment has risen out of these genuine concerns. However, if brought to force, it increases the hardship of already pandemic hit retailers. It seems like policymakers have turned a blind eye to the control mechanism like increased taxation and proper surveillance. Regulating tobacco use is the need of the hour, but that should not sound death knell for retailers.
References:
[1] https://www.who.int/healthsystems/topics/health-law/chapter13.pdf
[2] (AIR 1988 Mad 275)
[3] (Writ Petition (Civil) 549 of 2008.
[4] (W.P. 15487/2014, Madhya Pradesh High Court (2015).
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