Pass Cigarettes And Other Tobacco Products (Amendment) Bill And Make India, A livelier And Less Smoky Place

The Existing Legal Regime

The first attempt to legislatively address the issue of tobacco consumption was made in the year 1975. The Act mandated statutory health warnings on packages and advertisements of Cigarettes but did neither apply to other tobacco products nor prohibit the consumption of tobacco by a particular class of people or at public places. Subsequently, the Government of India enacted the "Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) and ratified the WHO-Framework Convention on Tobacco Control (WHO FCTC) with the ultimate goal to reduce the prevalence and reverse the tobacco epidemic. The COTPA mainly sought to protect the non-smokers from involuntary exposure to tobacco smoke by making public smoking an offence. The Act also sought to protect minors (person below 18 years of age) from being addicted and therefore criminalized the sale of tobacco products to minors. However, the Act did not prohibit consumption of tobacco products but sought to empower the consumers by educating them about harmful effects of tobacco consumption so that they may make informed choices. The Act accordingly made it mandatory to display written and pictorial warnings on product packages. It also prohibited the advertisement of cigarette and tobacco products except on point of sale and on the package.

The Growing Industry Interference and Need for Change

The COTPA regime was useful to a certain extent in defying the tobacco industry's tactics to advertise and promote tobacco use in India. However, in spite of the Government's best efforts to effectively enforce the law and civil society's efforts to ensure that violations are adequately reported, the industry has been able to target, especially children, through their indirect promotion tactics. A report on Smokeless Tobacco and Public Health in India by the Ministry of Health and Family Welfare (MoHFW), Government of India records the need for a comprehensive ban on advertising of tobacco products. There are numerous examples of such advertisements where the brand name remains same and products marketed are altered for the brand to impact the minds of consumers. According to WHO, tobacco companies are using media and sponsoring influencers to promote tobacco products especially to youth. It reports that globally, tobacco industry spent over USD 9 billion in marketing and advertising and the world lost 8 million lives due to tobacco use and exposure to secondhand smoke.

In view of the increasing tobacco industry interference and circumvention of the law, there is an urgent need to further strengthen the law to prevent the tobacco industry from exploiting the existing gaps in the legal regime which were discernible with the passage of time. Considering this call, the MoHFW drafted The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Amendment) Bill and now has put it in the public domain. However, it's been five months since the comments were invited on the Bill but it is yet to see the light of the day.

What is to be done?

There is an urgent need to ban all forms of surrogate advertising, brand extension and stretching. Advertisement of any tobacco trademark or tobacco brand should be prohibited to meet the recommendations under WHO FCTC Article 13 guidelines. The amendment proposes to fix liability even on the people who participate in tobacco advertisement and is therefore encouraging as it will lead to a ban on celebrity brand endorsements of tobacco products and companies.

While the COTPA prohibited public smoking but the provision for designated smoking places made it illusory. The public was still passively exposed to smoke. Now the provision for designated smoking areas in public places like airports, hotels is sought to be removed. Smoking as well as tobacco use should be completely prohibited in public places since these give an opportunity to smokers to smoke in public places and often leads to violations and exposure to second-hand smoke. The ambit of the section 4 must be expanded to ban use of all kinds of tobacco products in public places. This will help in reducing tobacco use burden and the risk of infectious diseases due to tobacco use induced spitting.

Tobacco companies indulge in CSR to build their image and gain access to policy makers and thereby influence and interfere in tobacco control policy making which is in violation of Article 5.3 of the WHO FCTC. Therefore, a clause in Section 5 may be added to expressly ban CSR activities by the tobacco industry and require deposit of the 2% profit as required under the Company Act 2013 in tobacco control fund managed by MoHFW.

There is also need to prohibit not only sale but 'giving' of tobacco products to a minor in whatsoever way e.g. free gift, free sample including as research subject, survey, etc. Plain packaging of tobacco products has been successfully implemented in countries like Australia, France, and Ireland and hence similar provision may be added in our law. Adding provision whereby "no person engaged in, or purported to be engaged in the production, supply, distribution and sale of cigarettes or any other tobacco products shall mention or use any ingredients or additives or flavorings in any form that can impart, intensify, modify or enhance the flavor, taste, palatability or increase dependence of cigarettes or any other tobacco products" will help in preventing promotion of tobacco products by prohibiting use of misleading terms and ingredients in such products or their packages.

In order to comply with WHO FCTC Protocol on Elimination of Illicit Trade in Tobacco Products, ban on sale of duty-free export and import of tobacco and Exclusive vendor licensing not only under existing laws but 'as may be prescribed' under COTPA as well is needed. Considering the state amendments to COTPA in Gujarat, Maharashtra, Rajasthan and Punjab, a provision may be added to ban hookah bars across the country. In line with the WHO FCTC Article 5.3 and the guidelines for its implementation, a provision should be added to restrict tobacco industry interference in the development and implementation of any tobacco control effort and imitative in the country. A code of conduct for all government stakeholders should be prescribed as adopted by the MoHFW.

We need concerted efforts by various stakeholders including synergy between the 10 ministries that control various aspects of tobacco industry. The successful enforcement of COTPA, NTCP and FCTC would also require active engagement of civil society as an important stakeholder, in particular, to increase peoples' awareness, solicit their support for the law and involve them in monitoring enforcement and reporting violations. The Draft COTPA (Amendment) Bill is a welcome step and if passed, will reinforce our pledge to fight pandemic of tobacco and COVID.