“In spite of warnings, change rarely occurs until the status quo becomes more painful than change”.
Ralph Waldo Emerson
Introduction:
The Cigarettes and Other Tobacco Products Act, 2003 has made heath warning mandatory for the sale of cigarettes. In 2008 Central government prescribed general guidelines to the same effect. However, this continues to be a haunting issue even after several efforts.
Health Warning for Imported Tobacco Products
Section 7(3) of the COTPA directs that “No person shall import cigarettes or any other tobacco products for distribution or supply for a valuable consideration or for sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning”. It is also supposed to include pictures designated for warning.
According to Section 8, the specified warnings on a package of cigarettes or any other tobacco product shall be legible and prominent, conspicuous as to size and color and the lettering has to be boldly and clearly presented in distinct contrast to any other type. And the warnings must be in the same language as that of the other text. Breach of these provisions include the absence of textual and pictorial warnings, when the health warning does not include 85% of the total display area in the front of the Tobacco pack, and when the warnings are covered or hidden.
Section 20 (2) prescribes punishment for selling tobacco products without warning. It reads “Any person who sells or distributes cigarettes or tobacco products which do not contain either on the package or on their label, the specified warning and the nicotine and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one 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 three thousand rupees”. All offenses under this Act are bailable.
Recently government made a Notification of new specified health warning cigarettes and other tobacco products (packaging and labeling) third amendment rules, 2020 which pesters the implementation of enhanced warning on tobacco products. This notification applies to imported cigarettes and other tobacco products also.
History of COTPA
There were several legislative strategies beginning with the Cigarettes Act of 1975, to control Tobacco use. A parliamentary committee was set up to study this Act and as a result, they submitted a report in 1995 with several recommendations for better Tobacco control. The proposals by the committee included mandatory health warnings in strong language with pictorial warning. Ban on the sale of tobacco products for people below 18 years, prohibition of advertisements of any form, curb on smoking in public places also made their way into the report. Stringent implementation and high penalties were recommended as required measures for regulating Tobacco use.
In 1995, a coordination committee was formed with representation from varied sectors of the government to discuss Tobacco control. Except for the ministry of labor, that rest was of the view that economic aftereffects of Tobacco control can be managed. Later an expert committee was appointed to analyze the economics of Tobacco use. After careful study, the committee submitted that the economic burden resulting from the diseases associated with tobacco use outweigh the economic benefit of Unregulated Tobacco use and trade.
Meanwhile, accepting the suggestions of the 1995 Parliamentary Committee on Subordinate Legislation, the Ministry of Health and Family Welfare introduced the Tobacco Control Bill in the RajyaSabha in 2001. It was a comprehensive legislation regulating the production, trade, and import of Tobacco. This legislations include earlier recommendations like a minimum bar of 18 years for using Tobacco, a total ban on Tobacco advertisements, and smoking in public places. This bill was passed by the parliament and eventually became an act in 2003, with the name The Cigarettes and Other Tobacco Products Act, 2003
International Perspectives
The WHO Framework Convention on Tobacco Control is the International treaty prescribing Tobacco control. The WHO FCTC is a reaffirmation of the right of all people to the highest possible health standards. This treaty put forward a novel idea for regulatory mechanisms focusing on the reduction of demand and supply. Price and tax measures are to be implemented for reducing the demand and several non-price measures like regulation on product disclosure, contents, awareness, and packaging labeling part. Article 11 of the WHO FCTC requires the parties to the convention to implement large, rotating health warnings on all tobacco packaging and labeling. The most cost-effective method to create awareness of the health hazards of using tobacco is through pictorial warnings. Hence Article 11 mandates that parties should necessarily include full-color pictures or pictograms in their respective packaging and labeling provisions. A website exclusively for WHO FCTC was created as per the decision of the Conference of Parties to WHO FCTC to facilitate the spreading of pictorial health warnings and messages among member countries and parties.
Guidelines for the implementation of Article 11 of WHO FCTC was published. These guidelines are meant to assist the member countries to fulfill their obligations under Article 11. Practical Steps for the same are presented through this. The first part is to make all people aware of the health consequences of tobacco as stated in Article 4 of FCTC. For achieving the same packaging and labeling requirements are prescribed. The location, size, color, pictures, rotation, language, and message content plays a vital part. The possible processes to pester companies to adhere to packaging and labeling requirements are also given in the guidelines. Legal measures to push for the same are also prescribed. Enforcement has an important role in the entire process. So different enforcement strategies are put forth in the guidelines. Monitoring and evaluating the packaging and labeling measures are given a boost, considering the proactive role it plays. The guideline ends with a note on International cooperation. Helping each other and sharing knowledge can bring the world together in the fight against tobacco. Special focus should be given to developing countries and economies in transition. The cooperation among the member nations in the exchange of technical, scientific, and legal expertise can fulfill Article 22 along with the implementation of Article 11.
Pictorial Supply reduction strategies as per Article 15-17 of the treaty include preventing illicit trade in Tobacco products, ban on sale to minors, and provision for the support of economically viable alternate opportunities.
India became a party to the treaty on February 27, 2005. It is one of the most widely accepted international treaties with 168 signatories. Tobacco control laws and their implementation of all countries were analyzed by WHO Report on the Tobacco Epidemic (GTCR) 2019. This report categorizes India in the moderate category in terms of policy but it is compromising in warnings and several other provisions.
Present Scenario
As per the statistics published by the central government in 2017, violations booked under this COTPA amount to 12.74 lakhs, and a hefty sum of 16.99 Crore rupees is collected over the span of three years from 2013 to 2017. However, these are small numbers in accordance with the large-scale use of tobacco use and rampant violation that have become normalized. Karnataka and Kerala occupy the first two slots in the enforcement of COTPA. On the other side, the statistics pinpoint several states where enforcement is completely void.
Dharmendra Kansal v. Union of India[1]
A public interest litigation was filed requesting that cigarette manufacturers and the Indian government consent for the proper implementation of the Cigarettes and Other Tobacco Products Act (COTPA) in regard to tar and also nicotine levels. Specifically, the law obliges Makers to furnish the tar and nicotine levels on the label. The law additionally obliges the legislature to set a maximum limit for tar and nicotine and for displaying it on packs. The court said that it didn’t have the power to urge the legislature to execute this procurement of the law, despite the fact that the legislature neglected the situation in the 11 long time since its adoption. Instead, the court put a curb on the sale of cigarettes in the state of Uttarakhand, effective after one year of the decision. The court said that this decision won’t be effective if the legislature prescribes a limit for nicotine and tar and to furnish this data on their labels. Additionally, those courts requested that detached loose cigarettes must be sold with a specified warning mark on the packaging, effective six months starting with the date of the decision.
Conclusion
COTPA lists an array of control mechanisms to tackle the Tobacco epidemic ravishing our nation. Health warnings were considered one such measure to spread awareness of the grey sides of it. However, this is even destined to follow the suit of several other provisions that have remained a dead letter till now. But in exceptional situations, these provisions are miserly used against large-scale violations. These times call for stringent implementation of COTPA to denormalize the smoking violations in the nation.
Reference:
[1] Writ Petition (Pil) No. 37 of 2014
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