The recognition of smoking as a public health hazard is not new. For decades, countries across the world have worked assiduously to address the legal, attitudinal and societal challenges that are connected with this problem. The situation is no different in India. Studies indicate that smoking accounts for 40% of cancers in India and is a major cause of respiratory infections, heart diseases and TB. As this article shows, India is believed to be the world’s third largest producer of tobacco. In India, tobacco is estimated to provide livelihood to over 6 million farmers and 20 million industry workers. India accounts for a sizable portion of the world’s smokers, and it is predicted that tobacco consumption will lead to 13% of all deaths in India by 2020. Against this backdrop, this article seeks to analyze all pertinent laws in India that grapple with the production, distribution, consumption and advertising of most commonly used smoking products.
A brief overview of the history of smoking laws in India
The first law that sought to regulate the use of tobacco products in India was the Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975. The Act not only mandated the display of statutory health warnings on cigarette packages, cartons and advertisements, but also exhaustively delineated the language and structure of the warnings. It gave law enforcement agencies substantial powers to regulate the production and commercialization of tobacco products and prescribed the penalties for breaching the law, including the confiscation of tobacco products. However, the law was strongly criticized by health experts for two principal reasons. First, it did not encompass any provisions to regulate the production or use of noncigarette tobacco products such as beedis, gutka, cheroots and cigars. Secondly, and more fundamentally, the law was predicated on the belief that, as the tobacco industry accounted for a substantial share of public revenue, law enforcement agencies should interfere in the working of the industry only if it was necessary to do so. Thereafter, in the 1990s, some steps were taken to regulate smoking in certain contexts. First, in 1990, by way of an Executive Order, the central government prohibited smoking in some public places where a large number of people could be present. Educational institutions, planes, trains, buses and conference halls were primarily brought within the auspices of this Order. The aforementioned places were not only required to declare clearly that smoking was banned, but the use of ashtrays and sale of smoking products was strictly prohibited in these places. In 1992, the manufacture and use of tobacco products in toothpastes and toothpowder was banned vide an amendment to the Drugs and Cosmetics Act, 1940.
Furthermore, The Supreme Court in the case of Murli S Deora vs. Union of India and Ors., AIR 2002 SC 40 eloquently articulated the deleterious effects of smoking, especially on passive smokers. Citing statistics showcasing the effects of tobacco consumption, the Apex Court emphatically asserted that the economic losses attributable to tobacco use clearly outweigh its advantages. The Court prohibited smoking in public places such as auditoriums, hospital buildings, health institutions, educational institutions, libraries, court buildings, public offices and public modes of transport, including the railways. In the light of these developments, a comprehensive tobacco control bill was introduced in the parliament in the budget session in 2003. The bill, which became the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 received the President’s assent on 18th May, 2003. COTPA not only includes the provisions of the erstwhile Act of 1975, but also includes within its fold provisions governing the use of noncigarette tobacco products, ban on public smoking, advertisement of tobacco products, sale of tobacco products in certain contexts, etc. The Ministry of Health and Family Welfare, by way of several soft law instruments, seeks to regulate smoking in accordance with the Act.
After enacting a comprehensive law to make the country smoke-free, India became a member of the WHO Framework Convention on Tobacco Control on February 5, 2004.
Ban on public smoking
Section 4 of COTPA seeks to curb the menace of smoking in public places. This desire finds expression in the Prohibition of Smoking in Public Places Rules, 2008 which came into force on 2nd October, 2008. As per the new regime, smoking is prohibited in auditoriums, health institutes, educational institutes, cinemas, modes of public transport (planes, buses/taxis, trains including metros and monorails) airports, bus stops/stations, railway stations, hotels and restaurants, all kinds of offices, libraries, shopping malls, canteens/refreshment rooms, post offices, amusement parks, courts, discothèques, pubs, bars and coffee houses. The Railways Act, 1989 also prohibits smoking in trains.
The law permits smoking in airports, hotels having more than 30 rooms, restaurants having a seating capacity of more than 30 and other enclosed places that have designated smoking areas or spaces. The legal age for smoking is 18. The fine for violating these provisions is INR 200. The Ministry of Health and Family Welfare has set up a helpline number for reporting violations of this provision or for seeking greater clarity with regard to the provisions of the law. The 24×7 helpline number is 1800-110-456. All complaints are forwarded to the authorities of the concerned state for taking appropriate action.
Packaging and labeling of tobacco products
Section 7 of COTPA explicitly prohibits the production or commercialization of tobacco products without displaying a pictorial warning on the package containing a tobacco product in the prescribed manner. The health warnings must necessarily occupy 40% of the principal display area on the front panel of the packet and must frequently be rotated in accordance with the directions of the central government. Moreover, the warning cannot be in more than two languages in order to ensure that it is legible and clearly visible. The government notified a set of rules mandating pictorial warnings on tobacco products on 3 May, 2009 which came into force on 31st May, 2009. The law strictly prohibits the display of misleading descriptors including, inter alia, ‘light’, ‘ultra-light’ and ‘low-tar’ or any pictorial representations or designs to that effect. Interestingly, the law does not focus on the display of qualitative statements indicating constituents or emissions.
Advertising of tobacco products
Section 5 of COTPA explicitly prohibits advertisement, promotion and sponsorship of cigarettes and other tobacco products, with the exception of on-pack advertising and point of sale advertising which have also been significantly restricted. The National Tobacco Control Programme (NTCP) mandates the setting up of monitoring committees at the state and district level in addition to a national level steering committee to take cognizance of advertisement of tobacco products. The Cable Television Networks (Regulation) Act, 1995 (CTNA) and its 2009 implementing rules clearly prohibit advertising of tobacco products on Indian cable networks. Despite these restrictions, 28% of Indian adults are exposed to cigarette advertising, and 47 and 55 percent, respectively are exposed to beedi and smokeless tobacco advertisements as per the Global Adult Tobacco Survey, 2010. This can primarily be attributed to the innovative and surreptitious techniques that are adopted by the tobacco industry to circumvent the existing restrictions by way of social media advertising, dark advertising, brand stretching, distribution of free samples, etc.
Display of advertisements to spread awareness about the effects of tobacco consumption
It is pertinent to note that a study involving approximately 4000 adolescents in Delhi clearly showed that students who are exposed to tobacco use in Bollywood films are twice as likely to become tobacco users as those who are not exposed to such use. The details of the study can be found here .
As a result, in recent years, the Indian government has sought the assistance of the film industry to disseminate information about the adverse effects of tobacco consumption among those who need the information the most. On 2 October 2012, the government began showcasing two advertisements, titled “Sponge” and “Mukesh” in movie theaters and cable networks across the country. These were later replaced by advertisements titled “Child” and “Dhuan”. The primary goal of these advertisements has been to inform various stakeholders about their role in the battle to prevent tobacco consumption. Similarly, it is mandatory for theaters to display a disclaimer at the bottom right hand of the screen when smoking scenes are displayed in a movie. A Ministry of Health and Family Welfare directive, issued on 21 September 2012, empowers the Censor Board to deny certification to films that do not run the health warning. Furthermore, Section 5B(2) of the Cinematograph Act of 1952 requires the Central Board of Film Certification to ensure that certain types of smoking scenes do not appear in movies. Many filmmakers find this intrusion oppressive and unnecessary. Due to the aforementioned requirements, Woody Allen refused to release his film Blue Jasmine in India because he was of the view that the warnings would divert the attention of viewers away from the scene in question.
Tobacco sale near educational institutions
Section 6(B) of COTPA prohibits sale of tobacco products within a radius of 100 yards of educational institutions. Heads of educational institutions are empowered to clamp down on the sale of tobacco products within this limit. However, it is dismaying to note that neither school/college authorities nor administrative agencies have been able to enforce this provision scrupulously. Surveys indicate that minors are increasingly getting addicted to tobacco products due to the lackadaisical approach of law enforcement agencies in this regard.
Various cities in India have launched campaigns to make their environment smoke-free in the last decade. Chandigarh became the first smoke-free city in India in 2007. Another interesting development has been the ban on hookah bars. Previously, the authorities used to apply Sec. 144 of the CRPC to shut down hookah bars, but in recent years, cities like Bangalore, Jaipur, Gurgaon, etc. have explicitly banned hookah bars.
In an interesting development, a committee headed by Adoor Gopalakrishnan advised the Kerala government to remove health warnings accompanying smoking scenes in August 2014. The view of the committee is that these warnings unnecessarily impede the flow of the movie and prevent viewers from enjoying the movie in question to the fullest extent possible. Even if the warnings have to be shown, they must be shown at the beginning or the interval, the committee stated. Reports indicate that the Kerala government has accepted this suggestion in principle.
Reports indicate that the Narendra Modi – led NDA government is planning to amend the existing tobacco law to provide for a stricter enforcement mechanism and more severe fines. An expert panel set up by the Ministry of Health has recommended the imposition of a fine of INR 20,000 for smoking in public. As this article indicates, the committee has also recommended the banning of loose cigarettes and increasing the minimum age for tobacco consumption from 18 to 25 and making public smoking a cognizable offence. These changes are expected to be introduced in the winter session of Parliament later this year.
Several countries have put in place stringent and robust frameworks to regulate tobacco use in pursuance of the endgame principle which seeks to reduce tobacco use to less than 5% by 2040. Even though, measures undertaken by the Indian government have yielded substantive results, a lot more still remains to be done for fanning the flickers of progress that these measures have generated. It is necessary to craft health laws in every state to meet the peculiar challenges that every state faces in the context of smoking. Traditionally, health laws in India have worked more efficaciously when they have been enacted at the state level as opposed to the national level. This is because every state faces a unique set of health risks and the causes for those health risks also significantly differ from state to state. As a result, it is undesirable and infeasible to seek uniformity in this regard.
As Dr. Judith Mackay of World Lung Foundation and his colleagues have rightly argued in a recent paper, “The (tobacco) epidemic cannot only be solved in the corridors of clinics and hospitals, but must also be solved in the corridors of power.”