This article is written by Harsh Gupta pursuing BA LLB from New Law College Bharati Vidyapeeth Deemed University.

There is a blanket ban on the advertisement of cigarettes and other tobacco products. Demonstrating any leaflet, pamphlet or poster promoting any cigarette brand or tobacco product (gutka, chewing tobacco) should not be exhibited and they must also not be showcased on television and newspapers as this act has an erroneous impact on the public at large. Advertisement of cigarettes and other tobacco products is prohibited with respect to section 5 under the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act. Contravention to provisions of section 5 of COTA Act can lead to forfeiture of advertisement material and conviction.

Several terms used in this document are defined below:

• Advertisement: It is basically showcasing any content or picture of an entity/commodity or an idea publicly through leaflets, pamphlets in newspapers and magazines or through broadcasting on television which attracts the masses.
• Cigarettes: Beedi or cigar is different from cigarette; cigarette is rolled in a paper with a filter at the end which is filled with addictive tobacco and nicotine.
• Tobacco products: There exist a variety of products consisting of tobacco; some of the products are categorized as chewing tobacco, tooth powder, snuff, beedis which consist of tobacco as one of its ingredients.

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Restrictions on advertisement of cigarettes and other tobacco products 

As per Section 5(1) of COTA Act, 2003, no person shall engage in any kind of advertisement of cigarettes and other tobacco products. Nor any brand manufacturing cigarette or any tobacco products shall display or endorse through television or newspapers. Any person directly or indirectly should not promote consumption of these products. There is complete restriction on circulation of advertisements of these products.

Section 5(2): Any person for his/her financial gains shall not:

1. Display or try to display any product which contains tobacco or cigarette, any person shall not engage in any kind of advertisement for tobacco products or cigarette.
2. Sell or try to sell any video film or tape which consist of any advertisement related to cigarette or tobacco products.
3. Exhibiting any kind of poster, hoarding, frame on any wall, structure frame related to advertisement of cigarette or tobacco products.
4. Distribution of any kind of leaflet, pamphlet, hand-bill to public which contains an advertisement of cigarette or tobacco products. 

While a subsection shall not apply in relation to

1. Any kind of advertisement on a cigarette or any tobacco product or any advertisement on its packaging.
2. Advertisement outside the entrance or inside the warehouse of cigarettes or any tobacco product or at any shop where cigarette or tobacco product is being distributed or sold.

Section 5(3)(a): Any person should not under any contract or deal endorse cigarettes or any tobacco product. Nor any trade mark or any brand name of cigarettes or tobacco product in reciprocity for a gift, prize, award or reward to be given by another person.

Section 22: For the contravention of section 5 of the COTA Act, a person convicted for the first time will be imprisoned for the term not extending to two years or fine of one thousand rupees or with both and the person who is convicted for the second time will be imprisoned for the term not extending to five years and with fine not extending to five thousand rupees.

Section 23: For the contravention of section 5 of the COTA Act, 2003 a person shall be convicted under this section, whereby the entire cigarette and other tobacco products will be forfeited and disposed in a manner specified under the rules of this act.

Rule 4

(1) G.S.R. 137. Dated 25th February 2004: The size of the board used for Advertisement outside the entrance or inside the warehouse of cigarette or any tobacco product or at any shop where cigarette or tobacco product is being distributed or sold must not exceed by ninety centimeters by sixty centimeters.

(2) Twenty five percent top area of the board containing promotional message written in any of the Indian languages must include the following warnings:

• Tobacco causes cancer, or
• Tobacco kills.

(3) The board shall only consist of brand name or picture of the product and no other marketing or promotional message or picture.

The Supreme Court of India in a petition filed by Health for Millions, a charitable trust. On 22 July 2013 SC have issued interim orders and quashed Bombay high court orders. The SC has governed the union government to implement rules on the advertisement of cigarettes and other tobacco products to restrict the display of advertisement which are larger than 60cm x 45cm. 

Section 30 of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011, elucidates as the advertisement of pan masala must contain a warning “Chewing of Pan Masala is injurious to health”.

As per the notification S.O. 1866(E) dated 30th July 2009 the authorized officer on a complaint received with respect to section 5 or 7 of COTA Act, 2003 shall conduct a raiding team for the search and seizure.

Section 31of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011, elucidates as the advertisement and each package of supari must contain clear warning that “Chewing of Supari is injurious to Health”.

According to the global adult tobacco survey report about exposure to smoking tobacco marketing across the various states/UTs of India.

WHO Framework Convention on Tobacco Control

Article 13 of Framework Convention on Tobacco Control (FCTC) highlights certain guidelines which when implemented will result in reduced consumption of tobacco products.

Recommendations given by FCTC are listed below:

• Parties to WHO are aware and recognize the fact that extensive ban on the advertisement, promotion and sponsorship of tobacco products will result in reduced consumption, by the individuals of party to FCTC.
• Each Party with its constitutional principles, undertake an extensive ban, of all tobacco products advertising, promotion and sponsorship. Comprehensive ban on cross-border advertising, promotion and sponsorship, within five years after entry into force of this Convention for that Party, each Party shall undertake appropriate legislative, executive, administrative and/or other measures and report accordingly in conformity with Article 21.
• Any party which is not able to take any constitutional decisions over comprehensive ban on tobacco, that party shall solicit restrictions on advertisement, promotion and sponsorship of tobacco products in its state.
• In accordance with the constitution and constitutional principles, every party shall prohibit all kinds of advertisements, promotions and sponsorships that promote or influence tobacco products and its consumption.
• Any kind of an advertisement of tobacco products must contain health warnings or appropriate messages for the individuals.
• Restricting the use of direct and indirect incentives that uplift sale of tobacco products for the individuals.
• Parties to FCTC which have a comprehensive ban on tobacco products advertising, sponsorships and promotion also have the right to ban all cross border tobacco advertising, promotion and sponsorships and they must also penalize them with equal penalties as applicable to domestic advertising.
• Parties shall make a common and elaborated manoeuvre in order to abridge cross-border advertising, promotion and sponsorship of tobacco products. 

WHO Framework Convention on Tobacco Control (WHO FCTC) and India

There are currently 181 parties to the convention. It was adopted by the World Health Organization on 21st May, 2003 and came into force on 27th February 2005. The Government of India signed this convention and became the party to it in 2004. India has played a crucial role in FCTC negotiations.

Conference of the parties (COP): It is the governing body of FCTC which consists of all the parties of the convention and which keeps an eye on the implementation of the convention and it gives recommendations and various measures for the efficient working of the body. The working of COP is governed by rules and procedures. Seventh session of COP7 was organized by the Ministry of Health and Family Welfare, Government of India in Greater Noida. Secretary, Health & Family Welfare became the President of the COP Bureau for two years. 

Cable Television Networks (amendments) Rules, 2009

In the Cable Television Networks Rules, 1994, certain amendments have been notified in rule 7, in sub-rule (2), in clause (viii), after sub clause (A), which is stated as under: 

Products that are used for advertisement of cigarette, alcohol, wine or tobacco products on cable service are subject to various conditions:

• The advertisement must not make any direct or indirect relevance to the prohibited products.
• The advertisement must not contain any kind of phrases promoting any prohibited products.
• The advertisements must not use any kind of colors, layout, presentations related to the prohibited products.

Analysis  and Conclusion

On a deductive-inference it would be said that around thousands of individual’s die of cancer and other deadly diseases like heart disease, stroke, lung diseases, diabetes, and chronic obstructive pulmonary disease (COPD) leaving individuals in a deadly state. Tobacco products consist of various toxic substances out of which Nicotine, tar and carbon monoxide as one the dangerous integrant toxic substances. Usually younger people and poor people of the society are more attracted towards smoking and other tobacco products. Thus in order to curb this rising practice of tobacco consumption in India, the government of India promotes health safety measures and channelizes guidelines through various programs to constrain tobacco consumption in India.

Advertisement of tobacco has been one of the keen reasons for attracting people towards tobacco consumption and according to the reports, the ratio of people who are more attracted towards tobacco consumption were youngsters. Therefore through the enforcement of COTA act wherein, guidelines for completely banning cigarettes and other tobacco products have been interpreted. Based on my research on this topic I would pronounce that on the advertisement of cigarette and other tobacco products more severe punishments and sanctions must be imposed on the wrong doers. Sections 22 and 23 of COTA Act, 2003 must be redrafted with stringent punishments for the contravention of section 5 of COTA Act, 2003. Thus, such an act would impose alertness to the manufacturers of cigarette and tobacco products and further such advertisements will also be censured and condemned. Government should channelize more and more programs on television to restrict the use of cigarettes and other tobacco products and spread awareness about the importance of a healthy life.

Heavy taxation must also be levied on tobacco products which will ultimately shatter tobacco sale. India must adopt Plain packaging on the packs of cigarettes and other tobacco products. It must be printed on tobacco product packs which must only consist of brand name and statutory warning. The first country to implement plain packaging was Australia. India in April, 2016 enforced to cover 85% (earlier it was 75%) of the cigarette packs with a statutory warning.

As there has been a ban on direct advertisement of cigarettes and other tobacco products therefore indirect or surrogate advertisement generally takes place. Indirect or surrogate advertisement is basically promoting a particular product in the shadow of another product. Surrogate advertisement is mostly seen in liquor advertisements, but surrogate advertisement for cigarette and other tobacco products is banned and considered illegal.

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