Tobacco Control and

Consumer Protection in
India
 Contents
1. Introduction - Plain Packaging
2. Current Scenario - Sale of Loose Cigarettes
3. Consumer Protection and - Tobacco Content in
Tobacco Products
- Public Smoking - Advertising, Promotion, and
- Passive Smoking Sponsorship
- Sale to Minors - Nicotine
- Packaging & Pictorial Health
4. Conclusion
Warning
Introduction
“Tobacco is the only legally available
consumer product which kills people
when it is used entirely as intended.”

- Oxford Medical Companion

Introduction
The use of tobacco leaves can be found
across the globe stretching across
continents through many time periods.

From the Mayans to the Han Chinese,

tobacco has been used for recreation as
well as a medicine.1

1. Eric Burns ‘The Smoke of the Gods - A Social History of Tobacco’

Introduction
Despite its medicinal properties, when it is made into a cigarette, it becomes highly
toxic to the human body.

Cigarette smoke contains over 20 carcinogens which are known to cause Lung
Cancer.2 Cigarette smoking is known to cause DNA damage in human cells.3

2. Stephen S. Hecht, ‘Tobacco Smoke Carcinogens and Lung Cancer’ (1999)

3. Asami et al., ‘Increase of a type of oxidative DNA damage... human leukocytes by cigarette smoking’ (1996)
Introduction
Clearly tobacco use must be controlled and the end goal must be to stop
consumption of tobacco products.

In this regard, the legislation in force at present is the COTPA 2003

Current Scenario

GATS 2 (2016-17) India Fact Sheet

Current Scenario

GATS 2 (2016-17) India Fact Sheet

 Current Scenario
Prevalence of tobacco use in India Quit attempts among smokers
in the past 12 months

GATS 2 (2016-17) India Fact Sheet

Consumer Protection and Tobacco
Here we’ll be dealing with:

- Public Smoking
- Passive Smoking
- Sale to Minors
- Packaging & Pictorial Health Warning
- Plain Packaging
- Sale of Loose Cigarettes
- Tobacco Content in Products
- Advertising, Promotion, and Sponsorship
- Nicotine
Public Smoking
Before COTPA was enacted, the Kerala High Court in Ramakrishnan and Anr v.
State of Kerala and Ors

and the Supreme Court of India in

Murali S Deora v. Union of India held
public smoking to be illegal.
Public Smoking
Smoking in public places is banned under section 4 of COTPA and under Rule 3 of
Prohibition of Smoking in Public Places Rules, 2008.

Exemption for hotels, restaurants,

and airports that have separate
designated smoking areas
Public Smoking
Bombay High Court has held that providing services in smoking areas does not
apply to hotels if the services (food/beverages) are provided by way of room
service but restaurants cannot do the same.4

However, the WHO recommends that public smoking should be banned from all
public places and there should not be any exemptions.

4. Crusade Against Tobacco & Ors v. Union of India & Ors [2011]
Passive Smoking
The involuntary inhalation of smoke is known as passive smoking.

Non-smokers and children are the primary risk group for passive smoking.

Living with smokers is a major health hazard for children.

The side-stream smoke from cigarettes is as harmful and toxic to the human body
as main-stream smoke from cigarettes.5

All this was mentioned in the Ramakrishnan judgement by the Kerala High Court
when they held public smoking to be violative of Article 21 of the Constitution.

5. S Schick & S Glantz, ‘Philip Morris toxicological experiments with fresh sidestream smoke: more toxic than mainstream smoke’
(2005) BMJ
Passive Smoking
According to the report by the Royal
College of Physicians titled ‘Passive
Smoking and Children’

Smoking during pregnancy can cause:

- Infertility,
- Fetal mortality,
- Low birth weight,
- Premature birth, and
- Congenital malformations.
Passive Smoking
Children exposed to passive smoking
develop:

- Lower Respiratory infections,

- asthma,
- wheezing,
- sudden infant death syndrome,
- meningitis and other diseases
Sale to Minors
Access to tobacco in any form is a huge factor in addiction later in adulthood.

Sale of cigarettes to minors and within

100 yards of an educational institution is
prohibited under section 6 of COTPA.
Sale to Minors
Researchers in Delhi surveyed 100 educational institutions and weak
enforcement of section 6 of COTPA.

The outlets near the educational institutions did not display any boards or signs
prohibiting the sale of cigarettes to minors.
Packaging & Pictorial Health Warning
Packaging & Pictorial Health Warning
The foundation for Pictorial Health Warnings (PHW) was laid in COTPA under
section 7, 8, 9, 10 and 20 of the Act.

It prohibited trade of products without specified health warnings and prescribed

the manner and language in which the warning shall be made.

The WHO framed guidelines for the implementation of Article 11 of the

Framework Convention on Tobacco Control (FCTC).
Packaging & Pictorial Health Warning
Till 2008, two tobacco packaging rules were framed in 2006 and 2008 but their
implementation was successfully delayed by the tobacco groups.

Two cases were filed by Ruma Kaushik6 in the Himachal Pradesh High Court in
2004 and

Health for Millions,7 an NGO, in the Supreme Court in 2008 where the
government undertook to frame the rules and start implementation of the 2006
Rules from 31 May 2009 respectively.

6. Ruma Kaushik v. Union of India [2006], CPW No. 1223/2004

7. Health for Millions v. Union of India & Ors [2009], WP (Civil) No. 549/2008
Packaging & Pictorial Health Warning
Finally, the 2014 amendment to the rules increased the PHW from
40% coverage to 85% coverage and gave a new set of warning
images.
Plain Packaging
In plain packaging, tobacco companies are prohibited from using branding
and design features in their packaging.

The brand names are in a

standardized font and format
which includes font size,
colour, type, and design
of the package.
Plain Packaging
This view of moving towards plain packaging was supported by the Allahabad
High Court in Love Care Foundation v. Union of India, where the Court directed
the government to consider plain packaging of tobacco products.

A bill was introduced in the Lok Sabha amending COTPA and adding a provision
of plain packaging.
Plain Packaging
However, there are very strong arguments
against plain packaging and they must be
considered.

Christopher Snowden elucidates these

arguments extremely well in his report.
Plain Packaging
1. He makes the argument against the increasing size of the pictorial health
warnings and the change in the warning messaging, from ‘Tobacco is
harmful to health’ to ‘Smoking Kills’.

He noted that these pictorial health warnings are no longer warnings but shock
and awe tactics, which was also the view held by Judge Richard J Leon of the
District Court of Columbia.

“At first blush, they [graphical warnings] appear to be more

about shocking and repelling than warning.8”

8. RJ Reynolds Tobacco Company and Ors v United States Food and Drug Administration and Ors [2011]
Plain Packaging
2. Plain packaging begs counterfeiters to make and smuggle counterfeit
cigarettes.

3. Plain packaging will drive down the prices of cigarettes as

manufacturers will operate in a completely ‘dark market’

4. The slippery slope argument

5. Unintended consequences of such an action by the government

are unknown.
Sale of Loose Cigarettes
Sale of loose cigarettes is a major problem in India.

The sale of loose cigarettes negates important strategies of tobacco control:

1. Protecting minors,
2. Effective taxation,
3. Pictorial warnings, and
4. Information to support quitting.
Sale of Loose Cigarettes
Packaging of tobacco products is governed by COTP (Packaging and
Labelling) Amendment Rules, 2014 and Legal Metrology (Packaged
Commodities) Rules, 2011.

Sale of loose cigarettes is also banned under the same.

The LM Act has penalties in case of delivery

of commodities by non-standard weight or
measure,9 or for selling non-standard
packages.10

9. Legal Metrology Act 2009, s 34

10. Legal Metrology Act 2009, s 36
Tobacco Content
The levels of tar and nicotine in tobacco products slightly affects the
addictiveness and the flavor of the product.
Tar levels in low tar cigarettes ranges from 5.1 mg to 5.4 mg and in high tar
cigarettes ranges from 12.8 mg to 21.4 mg in India.
Despite this difference in the amount of tar in cigarettes, studies have found no
statistically significant risk reduction for cancers.
There is no legislation or regulation that deals with tar levels of cigarettes as of
yet, which should not be the case considering the welfare of the consumers.
Advertising, Promotion, and Sponsorship
Article 13 of the WHO FCTC deals with
advertising, promotion, and
sponsorship of tobacco.
Section 5 of COTPA prohibits all forms
of advertising (media, print, billboards
etc.) of tobacco products except on the
package and at the point of sale.
Nicotine
Nicotine is the addictive compound in
tobacco products which makes it
extremely dangerous if it is
unregulated.
It is such an addictive compound that
Nicotine Replacement Therapy (NRT)
is one of the main ways the WHO
recommends control of tobacco.
Nicotine
The Chandigarh High Court in Burning Brain Society v. Union of India and Ors
took cognizance of the harmful effects of nicotine and directed the state
government to set up a task force to monitor the abuse of nicotine in Hookah
bars.
Rule 44J of the Prevention of Food Adulteration Rules, 1955 prohibited products
contain nicotine and tobacco.
Nicotine
Are gutka and pan masala food? and can they contain tobacco? This has been
answered by multiple judgements.
Godawat Pan Masala and Ors v. Union of India and Ors was the first case to
deal with this issue after the enactment of COTPA.
The Supreme Court agreed with the contention that gutka and pan masala are
food within the meaning of section 2(v) of the Prevention of Food Adulteration
Act, 1955.
Nicotine
The Bombay High Court in M/s Vishnu Packaging v. Union of India and Ors held
that as COTPA did not deal with adulteration of gutka and pan masala, the same
can be dealt with the Prevention of Food Adulteration Act, 1955.
In 2019, the Madras High Court in Jeetmal Ramesh Kumar v. The Commissioner,
Food Safety and Drug Administration Department and Ors categorically upheld
that tobacco products are within the purview of the Food Safety and Standards
Act, 2006.
Conclusion
Following India’s commitment to the Framework Convention on Tobacco Control,
COTPA was introduced which is the principal legislation that deals with tobacco.
But despite its introduction in 2003, 99.5 million adults in India smoke tobacco
and 199.4 million adults use smokeless tobacco.
These numbers are very high and the damage done to society is immeasurable
Conclusion
The Legal Metrology departments of various states have taken many actions in
recent times.
Even various state governments have banned cigarettes and gutka and have
labelled nicotine as a class A poison.
The Uttar Pradesh and Haryana state governments, amongst others, have
banned the sale of gutka to stop the spread of COVID-19.
Conclusion
With proper implementation of COTPA, Consumer Protection Act, 2019, Legal
Metrology Act, 2009, and Food Safety and Standards Act, 2006 great leaps can
be made towards the health and welfare of the public.

END