This article has been written by Ashutosh Singh Amity Law School, Amity University Kolkata. The article is about the critical analysis of government policies for tobacco control in India.
Tobacco consumption is a major public health concern and a challenge in India since one-third of adults are addicted to tobacco consumption in its different forms. Tobacco use is acutely deep-rooted as cultural and even traditional practice in our society. Although there are many laws restricting tobacco consumption in India, tobacco consumption is continuing to increase. China is the largest consumer of tobacco and India is the second-largest consumer of tobacco in the world. Singapore had smoke free legislation since 1970 but had to fortify it recently to control tobacco use. But our neighbour Bhutan is the first country which imposed a total ban on the sale and use of tobacco products. Tobacco laws in the world should be strengthened and there should be a very heavy tax levied on it since it is the reason for many deaths.
In India, one in four adults, that is nearly 25%, use tobacco in some form in urban areas and it is two in five or 38% in rural areas. In India, small scale industries manufacture many of the tobacco products such as bidis in the unorganised sector. Cigarettes, on the other hand, are mostly manufactured in large-scale industries. The harmful effect of tobacco is the clearing of forests and using forest products for cultivation, curing, and packaging, resulting in a lot of damage to the environment. These reasons alone are enough to have strong laws with teeth to control cultivation, sale, and use of tobacco in the country.
Tobacco is a plant. It is grown for its leaves which are first allowed to dry and then fermented before using them in different tobacco products. Tobacco products are intoxicating and people who are addicted to it find it very difficult to quit the habit because of an ingredient called nicotine in it. Apart from nicotine, there are other harmful chemicals found in tobacco once it is burnt. In India, tobacco products are bidis, pipes, and cigarettes which are smoked. Tobacco products which are chewed include zarda pan, snuff, and dip, etc.
History of tobacco in India
It is estimated that tobacco was first introduced in India by the Portuguese around 400 hundred years ago during the Mughal era. Although tobacco itself was not new to India because there were already some locally grown strains of tobacco, these locally grown tobacco lost its popularity when new imported varieties arrived from Brazil. Mainly due to a jumble of different cultures which were introduced in India, tobacco rapidly became a part of the socio-cultural scene in different communities, specifically in the southern, eastern, and north-eastern parts of the country. Tobacco is a cash crop and hence it quickly established itself as the key product passing through Goa in the 17th century. However, it was the British who brought the modern cigarette during their rule to India.
Hazardous effects of tobacco
Hundred million premature deaths have taken place in the world due to tobacco in the 20th century as per WHO assessment. This figure is likely to increase to one billion by the end of the 21st century.
Some of the immediate harmful effects of this to our health are
- Cardiovascular diseases like stroke.
- Coronary vessels of the heart get affected.
- The decreased supply of blood to the heart.
- It also causes high cholesterol and blood pressure.
- Respiratory diseases like chronic bronchitis, emphysema, Asthma, and Tuberculosis.
World-wide about one-third of adults are consistently exposed to second-hand smoke from tobacco users. Globally, around six lakh people die because of second-hand tobacco smoke.
The Global Adult Tobacco Survey shows that in India, 58% of rural adults and 39% of urban adults were exposed to second-hand smoke at home. When compared to conventional tobacco smoke, second-hand smoke is 3-4 times more toxic per gram of particulate matter because they tend to stick to furnishings, furniture and even food at home.
Damage to the environment
It is observed that unextinguished cigarette butts are the cause of many fires which can damage homes, factories and forests. They are also toxic waste. These toxic chemicals contaminate our waterways, groundwater, soil, and wildlife.
Teenagers who use tobacco are more likely to use alcohol and illegal drugs than non-users. They get into fights, carry weapons, attempt suicide, suffer from mental health problems such as depression and engage in high-risk sexual behaviours. This is most common in teens who use tobacco. Also, tobacco consumption is responsible for many broken homes as it adds to the expenses in poor families.
Tobacco control legislations in India
The key role played by the Indian government in formulating tobacco control policies in the country has been acknowledged by the international community. Tobacco consumption being injurious and lethal to health, many legislations and control measures have been enacted. Following is the evolution of the government policies for tobacco control in India.
Cigarettes (Regulation of Production, Supply, and Distribution) Act, 1975
The salient features of the Act are as follows:
- According to the Act, it was required to display statutory health warnings on the cartons, packets, and even advertisements of tobacco products mentioning that they are injurious to health.
- The Act also imposed explicit restrictions for commercialising and trading procedures concerning the supply, production, and distribution of tobacco.
- Penalties were set for the seizure of tobacco if and when the provisions were breached.
- The Central Government was empowered to intervene in developing, monitoring, and marketing of the tobacco industry.
- The Act had major limitations and its provisions did not cover non-cigarette tobacco products like gutka, cigars, beedis, and cheroots.
- It appeared that the Act supported and preferred tobacco trade because tobacco was a major source of revenue for the country.
Memorandum issued by the Cabinet Secretariat in 1990
A step was taken in the right direction and smoking of tobacco was banned in domestic flights, health care centres, educational institutions, trains and buses as a result of a Memorandum issued by the Cabinet Secretariat in the year 1990. However, this was an administrative order by the government and lacked clear instructions for its enforcement and hence it was mostly ineffective.
Prevention of Food Adulteration (Amendment) Act, 1990
Through this Act, statutory warnings concerning harmful effects on health for eating pan masala and chewing tobacco were made mandatory.
Cinematograph (Amendment) Act, 1952
This Act was amended to ban scenes from the cinema where the actors smoked and thereby endorsed, and promoted the consumption of tobacco in any form.
Drugs and Cosmetics (Amendment) Act, 1940
In 1992, this Act was amended to abolish the use of toothpaste and powders that contained tobacco.
Committee on subordinate legislation, November 1995
This committee made recommendations to the Ministry of Health to pass a law to protect the non-smokers from second-hand smoke or passive smokers. It advocated stronger laws for electronic media while also spreading awareness regarding the health hazards of tobacco smoking. It also paved the way for the development of the existing tobacco control laws in the country.
The Cable Television Networks (Amendment) Act, 2000
This Act abolished the use of tobacco products in any advertisement on any cable television, state-owned publications, and electronic media.
The Tobacco Products Bill, 2001
This bill recommended that the Central Government should control the tobacco industry, and that parliament should legislate on other tobacco products but not cigarettes. The bill’s recommendation paved a way for the government to enact the COTPA in 2003.
The Cigarettes and other tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce Production, Supply and Distribution) Act, 2003
This is the currently prevalent tobacco control law in India. The provisions under this Act are:
- Smoking in public places is banned.
- A Total ban on advertisements of tobacco products.
- Ban of sale of tobacco products to minors below 18 years of age.
- The packaging of all tobacco products has to compulsorily show pictorial health warnings on smoking.
- Tobacco product cannot be sold within 100 yards of any educational institution.
- The Act makes it mandatory to test for the tar and nicotine content of any tobacco product.
- The law was enacted but the ordeal to implement them was another thing as the tobacco industry came together to dispute most of these rules in the court of law.
- With many legal battles, the revised smoke-free laws came into effect on Gandhi’s birthday in 2008.
WHO Framework Convention on Tobacco Control (WHO FCTC)
The Framework Convention on Tobacco Control (FCTC), a public health treaty negotiated under the aegis of the World Health Organization (WHO) was signed by 168 of the 192 members. The FCTC provides a coordinated response to combat the tobacco epidemic to the governments through specific steps which include the following:
- Reduction in tobacco consumption through tax and price modulations.
- Banning tobacco advertising, promotion, and sponsorship.
- Creating smoke-free work and public spaces.
- Putting prominent health warnings on tobacco packages.
- Combating illicit trade in tobacco products.
Many courts have, time and again, relied on the WHO FCTC and invoked it to strengthen their conclusions in dismissing legal challenges against various measures of the WHO FCTC. This has led to effective and efficient tobacco regulations, assisting in detailed judicial scrutiny of arguments made by the tobacco industry. WHO FCTC was adopted on 21st May, 2003 by the World Health Assembly and came into force on 27th February, 2005. Its objective is to deal with issues which are complex factors and have a cross-border effect such as
- Direct foreign investment,
- Advertisements for tobacco promotion,
- Sponsorship of events beyond the national borders,
- Trade liberalisation,
- Illegal tobacco product’s trade.
National tobacco control programme
In its bid to strengthen implementation of its provisions under COTPA and control measure policies of the WHO FCTC, the Indian government directed the National Tobacco control program in 2007- 2008. So far, this program has been implemented in 21 States and covers 42 districts. This major achievement was only possible due to the consistent funds provided for this program at the central, state, and sub-state level to make it a success. The main components of the NTCP were:
- At the National level, public awareness campaigns were held, tobacco products were tested in laboratories as a part of the health care delivery mechanism which came under the National rural health mission framework. A lot of research and training was done to find an alternate crop for growing to improve the livelihood of the tobacco farmer. This was done in collaboration with many ministries. Regular monitoring, assessment and surveillance were carried out on the tobacco industry.
- Similarly, at the State level, tobacco control cells were established with committed manpower to successfully enact and monitor anti-tobacco laws.
- At the District level, social health workers, NGOs and school teachers were trained to monitor the health of people. Tobacco cessation facilities were established. School programmes regarding the harmful effects of tobacco were implemented.
In spite of the rules and laws in place, many states could not implement this scheme successfully because they did not have enough manpower under this scheme or the provisions/mechanisms to carry out monitoring under the law.
Landmark judgments relating to tobacco control
Naya Bans Sarv Vyapar Association vs. India
In this case, an association of tobacco wholesalers challenged provisions of cigarettes and other tobacco products Act 2003 (COPTA) which prohibited the sale of tobacco products within a hundred-yard limit of an educational establishment. The whole sellers wanted exclusion of their trade from their law because the law reduced their retail sales which was dangerous for their business. The court, while stressing on public health which is needed for COTPA, rejected the petition and held that tobacco products which are wholesale or retail established near an education institution attract students. So, therefore, both types of sellers should be restricted equally. The court further imposed a fine of twenty thousand rupees which was to be paid by each petitioner to the central and state governments for the anti-tobacco initiative.
Dharampal Satyapal Ltd & Others vs. State of Assam and Others
In this case, the petitioner M/s. Dharampal Satyapal Limited, was engaged in the business of manufacturing and sale of Pan masala (without tobacco), Gutka, chewing tobacco including Zafrani Zarda, etc. The petitioners’ thorough writ petitions, have challenged the constitutional validity of the Assam Health Act, 2013 and asked for it to be struck down and termed void. Their argument was that COTPA covers all tobacco products including smoking and smokeless tobacco, and although the advertisement is banned, production, supply, distribution, trade and commerce in cigarettes and other tobacco products were structured. The grounds for such a plea were based on:
- That Assam legislature doesn’t have the legislative competence to enact the Assam Health Act as Parliament has already enacted a more all-inclusive Act known as COTPA.
- Tobacco industry is covered under the Union by Entry-52 of List-I of the 7th Schedule to the Constitution of India and hence, the state legislature is stripped of its power to legislate when it comes to matters already covered by COTPA with respect to Article 246(1) of the Constitution of India.
- According to the petitioners, the Assam Health Act had impinged upon the legislative domain of the Union when COTPA already existed by enacting the said Act.
- Another point was that the Assam Health Act derogates the provisions contained in Part-III of the Constitution (Articles 14, 19(1)(g) and 21).
Therefore, a complete ban imposed by the Assam Health Act on the entire non-smoking tobacco industry is arbitrary, discriminatory and whimsical. The judgement, in this case, was that the constitutionality of the Assam Health Act, 2013 could not be proved hence it is declared void.
India has a very comprehensive Tobacco Control Policy yet the country continues to grapple with the tobacco epidemic. It is one thing to have the correct legislation but it is useless if it is not effective in controlling the malady. For COTPA to be effective, we need more visible and aggressive anti-tobacco campaigns. It begins from our homes and schools. If we create awareness among our citizens when they are young and acquaint them with the serious harm it can do to their health and they get to interact with patients who are visibly suffering from tobacco consumption and can recount their unfortunate experience, then it can act as a strong deterrent for young minds. A very vigilant government as regards, cross border smuggling, licences and enforcement of the laws and very high fines for being caught smoking in public or involving children can also be very effective in tobacco control. For this, the law enforcement department and public support must go hand in hand.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: