Tobacco use is a global epidemic that kills 6 million people annually. Approximately one person dies every six seconds due to tobacco, accounting for one in 10 adult deaths. According to World Health Organisation [‘WHO’], tragically more than 80 per cent of those deaths occur in the developing world. India is the second largest country in the world in terms of consumption of tobacco and therefore faces a substantial tobacco related mortality and morbidity encumbrance.

Efforts to strengthen tobacco control in India were fortified 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. India’s commitment towards more effective implementation of tobacco control measures under COTPA and FCTC led to the formulation of the National Tobacco Control Programme (NTCP) in 2007- 2008. The programme was originally developed as a pilot project in two districts of nine Indian states, later expanded (2008-2009) to cover a total of 42 districts of 21 states and now in the year 2018-19 expanded to 400 districts across India with a budget allocation of Rs 650?million.

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COTPA mainly sought to protect non-smokers from involuntary exposure to tobacco smoke by making public smoking an offence. This was in tandem with the Supreme Court judgement in Murli S. Deora v Union of India (2001) which held that exposure of non-smokers at public places to smoke was a violation of their ‘Right to Life’ without any process of law. The Act also sought to protect minors from being addicted and therefore criminalised the sale of tobacco products to minors (people below the age of 18 years). However, the Act did not prohibit consumption of tobacco products but sought to empower 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 17 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. In view of the increasing tobacco industry interference and circumvention of the law, there was an urgent need to further strengthen the law in order to make it water-tight 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 Ministry of Health and Family Welfare, Government of India (MoHFW) drafted The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Amendment) Bill, 2020 and now has put it in the public domain. The proposed amendment to COTPA appears to be a good initiative to ensure that the legal regime combating tobacco is made stronger and effective.

The United Nations Sustainable Development Goal-3 and the targets thereunder to reduce the Non-Communicable Diseases (NCDs) burden by 2030 and the need to fully implement the WHO FCTC requires that definition of tobacco products under section 3 should be limited to include only products made of tobacco products leaf and no other food ingredient to be added to any tobacco products to make the Act in line with the provisions of Food Safety and Standards Act, 2006. Besides, all tobacco products listed under Schedule-I which include or have food ingredients i.e. pan masala or chewing material with tobacco, gutkha, and tooth powder with tobacco (items 8-10 in the Schedule) should be removed.

While COTPA prohibited public smoking but the provision for designated smoking places made it illusory. The public was still passively exposed to smoke. However, now the provision for designated smoking areas in public places like airports and 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 provisions should be considered for expansion to ban use of all kinds of tobacco products in public places.

All existing forms of tobacco advertising including surrogate advertising, brand extension and stretching should be completely prohibited. The decision to remove the proviso under Section 5 that permitted advertising on and in the tobacco pack and at points of sale may also be useful in this regard. Advertisement of any tobacco trademark or tobacco brand should also be prohibited and the proposed amendment to Section 5(1) should be accordingly amended to meet the WHO FCTC Article 13 guidelines. Plain packaging of tobacco products has been successfully implemented in countries like Australia and hence similar provision may be added in our law. Consider 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.” The change to fix liability even on the people who participate is also encouraging as it will lead to a ban on celebrity brand endorsements of tobacco products and companies.

Further a provision should be made for express ban on corporate social responsibility activities by any tobacco company using its corporate identity including tobacco and nontobacco trademark or brand or name etc. The Companies Act 2013 may also be amended accordingly to require direct appropriation of the 2 per cent profit of a tobacco company to a tobacco control fund under the MoHFW. A provision to prohibit not only sale but ‘giving’ of tobacco products to a minor in whatsoever way e.g. free gift, sample of research, survey, etc. would go a long way in combating use of tobacco.

In order to comply with WHO FCTC Protocol on Elimination of Illicit Trade in Tobacco Products, we should 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. 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.

While the Draft (Amendment) Bill, 2020 is a welcome step, successful enforcement of COTPA, NTCP and FCTC would 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. 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 formation of local community-level implementation and monitoring bodies which will act in tandem with the official enforcement agencies and take the movement of tobacco control in India to the next level.

The writers are, respectively, Vice-Chancellor in-charge and Assistant Professor of Law, National Law University Odisha.