The Consumer Protection Act 2019 May Fortify Tobacco Control Regime

Efforts to control tobacco use in India were exhilarated by enacting Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act ['COTPA'] in 2003 and ratification of the WHO Framework Convention on Tobacco Control ['FCTC'] in 2004. The 18 years of working of COTPA 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. Considering all these escape routes exposed by tobacco industries, the Ministry of Health and Family Welfare has proposed an amendment in the COTPA which is awaiting approval of the Parliament. However, notification of the new Consumer Protection Act has given a new ray of hope to strengthen the legal regime to control tobacco consumption and curb tobacco industry interference.

India did not have a specific legal regime for fixing product liability prior to 2020. In absence of a specific regime governing product liability, such claims were founded and derived from legislations viz. the Sale of Goods Act, 1930; the Consumer Protection Act, 1986; and the Indian Contract Act, 1872. These claims were also based on case laws, both in the civil (Law of Tort) and criminal aspects leading to a complex process. Certain sector-specific laws touching upon principles of product liability viz. the Drugs and Cosmetics Act, 1945 and the erstwhile Prevention of Food Adulteration Act, 1954 (now replaced by the Food Safety and Standards Act, 2006) were also used in some cases.

This has now been addressed to a large extent by the new Consumer Protection Act, 2019 (CPA). Sections 82 to 87, (Chapter VI of CPA 2019) offer a comprehensive scheme that would apply to every claim for compensation under a product liability action. A product liability action can be filed against a 'product manufacturer' or a 'product service provider' or a 'product seller', as the case may be. CPA 2019 defines each of these expressions in very wide terms to bring within their fold every possible aspect of a product liability claim.

Manufacturers, distributor and sellers of any kind of tobacco products owe both a legal and moral duty against their customers to warn clearly and in unequivocal terms about the fatal consequences of tobacco use. Further, every manufacturer is well aware about the scientific evidence related to the damage on health due to tobacco use and can foresee the damage it is likely to cause to the individual customer and the society at large. The defense of volenti non fit injuria or contributory negligence does not arise because most of these tobacco products include toxic chemicals and also as the majority of the long-term tobacco users start using tobacco when they are minor. National and global youth tobacco surveillance reports suggest that many tobacco users start even before reaching their teenage. Since, the incubation period for tobacco-related diseases may vary from 10 to 20 years, the adverse effects are diagnosed and reported when the tobacco user has reached the majority. Therefore, the defense of 'volenti non fit injuria' must not apply to those who start using tobacco as minors and grow as addicted adults. It may be noted that, COTPA squarely puts an obligation on every tobacco manufacturer, producer, distributor, and seller to prevent minors' access to tobacco products. The CPA 2020 explicitly includes food under the definition of goods as defined in Food Safety and Standard Act 2006 [Section 2(21)]. So, every food vendor, including food delivery platforms are also now in the ambit of CPA 2019.

The new CPA also ensures liability of endorsers i.e. an endorser of a product/service (for instance a Celebrity inviting you to buy a product) is under obligation not to participate in false/misleading advertisements (Section 21). Section 2(47) while widening the scope of 'unfair trade practices' expounds on such practices and includes, for instance, misleading advertising, refusal to take back defective goods, refusal to refund consideration for such goods within the period specified (and if no period specified within thirty days) etc.

We already have examples from countries where the State has taken action to restrict smoking in public places. The criminal law has been invoked in Western Australia by the Department of Occupational Health, Safety and Welfare under state legislation following complaints by employees of a gambling casino that they were subjected to passive smoke. The maximum penalty under statute is $50,000. In the USA, the states of Mississippi, Minnesota, Florida, and West Virginia are suing the American tobacco companies, claiming punitive damages, reimbursement of past health care of victims of smoking-related disease, compensation for future cost of health care for current and future victims and injunctions forbidding the promotion of cigarettes to minors. The aim is to recover the enormous and increasing outlay of individual states on treating tobacco-related diseases.

The New Consumer Protection Act, 2020 is a welcome step but successful enforcement of it to control tobacco industry interference would require the 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. Such a mechanism will facilitate regular consultations among major stakeholders and facilitate concerted action by multiple implementing agencies to ensure comprehensive tobacco control in India. This would also need to be complemented with sustained awareness and advocacy efforts, as well as the formation of local community-level implementation and monitoring bodies that will act in tandem with the official enforcement agencies and take the movement of tobacco control in India to the next level.

The author is Professor of Law & Registrar, National Law University Odisha.

Views are personal.