Tobacco Packaging Laws: An Effectual or an Ineffectual Effort?

There have been growing concerns associated with the ill effects of smoking. The Government has been trying to focus on the public heath measure side-lining the trademark related rights and commercial interest of the Tobacco companies, and 85% mandatory health warning display on the Tobacco boxes is a result of the same. Attempts have also been made to mandate plain packaging of tobacco products[1] and to prohibit sale of lose cigarettes and disallow indirect advertisements of tobacco products[2]. The central objective behind all these attempts remains dis-incentivising sale of tobacco products.

The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 or COTPA, 2003 regulates trade, commerce, production, supply and distribution of cigarettes and other tobacco products in India. Rules[3] were framed there under in 2008 by the ministry of Health and Family Welfare which prescribe a framework for packaging and labelling of tobacco products.

The 85% Mandatory heath warning display notification

In 2014, the Government amended the Cigarettes and other Tobacco Products (Packaging and Labelling) Rules and increased the size of the health warning on the principle display area from 40% to 80%. The amendment was challenged in the Karnataka high court and the court declared it as unconstitutional.

The court held that there is no scientific approach adopted by the Health Ministry in framing the amended policy. The Government was unable to establish it’s rational or basis on the following considerations:

• That the prior 40% pictorial display requirement in the rules did not satisfy the test of being legible, prominent and conspicuous;
• That is why the 85% compulsory display area requirement is uniformly applicable to all the products, i.e., cigarettes, beedis, chewing tobacco, despite the fact that their packaging is inherently different;
• That whether or not the 85% pictorial and textual warning would result in violating the rights of the petitioner under Section 28 of the Trade Marks Act, 1999.

Since there was nothing to indicate that enlarging the size of the warning from 40 to 85% of the package would serve any meaningful objective and the Government could not establish its rationale behind adopting the policy, the division bench unanimously declared the impugned amendment as unconstitutional.

However, on January 8, 2018, Supreme Court stayed the Karnataka high court judgement and reinstated the 85% mandatory warning display requirement. Emphasising on the importance of public health and its harmful effects of tobacco product, the court held that a policy based decision on the health risks posed to citizens cannot be struck down. The court asserted that the citizens must be aware of the affect the products can have on their health.

The reasoning stated by the court indirectly inclines on the belief that failure to reinstate the prescription and allowing a display warning of anything less than 85% will not safeguard their health. Instead of dealing with the question that whether there is a rationale for the Government to increase the size from 40% to 85%, the court stepped onto the notion of safeguarding health of citizens at all costs and thereby presumed that anything less 85% of the warning display will fail in safeguarding health of citizens.

The policy of enforcing Graphic warning labels has spread globally based on the Framework Convention on Tobacco Control. Article 11 of the Framework Convention on Tobacco Control (FCTC) also recommends the introduction of these labels for 50% of the packet cover. Perhaps the middle path suggested by Kapil Sibal, to allow 50% of the surface area to be covered by the warning as an ad hoc measure could have been a more balanced way out.

Plain Packaging Laws

In 2016, a PIL was filed in the Supreme Court of India for implementation of Plain Packaging Laws in India. The Supreme Court directed the Ministry of Health contending that delaying the implementation of plain packaging was in violation of the rights of the citizens under Articles 14 and 21 of the Constitution. The response of the Ministry to this notice is awaited. Back in 2012, a private member bill was introduced in the LokSabha by Member of Parliament Baijayant Panda which stipulated for plain packaging of tobacco products. This move came days after Australia became the first country in the world to ban coloured packaging of tobacco products and mandating plain packaging for tobacco packs, removing any indicators to distinguish between brands except for the brand of the name itself.

The amendment bill proposed for plain packaging of cigarettes and other tobacco products wherein the brand and product names would be permitted in a standard colour, position, font and size in a predefined area on the packet and all tobacco products will be similar with 60% of the front and the back cover occupied by graphic health warnings.

The constitutionality of the Australian mandatory plain packaging law was challenged in Australian High Court by the tobacco companies alleging that the Government is trying to seize their intellectual property by banning the display of their trademark on the cigarette packets. The Court held that although the IP rights and other related rights of tobacco companies may be restricted as a result of the plain packaging laws, the restriction imposed by this law does not “involve the accrual of a benefit of a proprietary character to the Commonwealth which would constitute an acquisition.”

After Australia, several other nations including Ireland, the United Kingdom and France have also brought in legislations with plain packaging laws for tobacco products.

Remarks

Tobacco packaging and labelling policies have developed as a cost effective tobacco control measure. Graphic warning labels policies which have been deemed to be more effective than text warnings and thus have been adopted in over 70 countries. Similarly, the standardisation of colour and design of tobacco products, have been argued to have major benefits. Firstly, that it increases effectiveness of health warnings, secondly, that it reduces false health beliefs about cigarettes and lastly, that it reduces brand appeal especially among youth and young adults. However, the effectiveness of such laws in reducing the consumption of tobacco have been much contested and debated over the last decade. One of the major argument against such tobacco packaging laws has been that the harmful effects of consumption of tobacco, which is already widely known and that attachment of such huge sizes of graphic warning violates trademark rights and copyrights and incites the production of counterfeit tobacco[4]. According to Tobacco companies, plain packaging makes it harder to control the entry of counterfeits in the market. The production of counterfeit tobacco has been the foremost fear in bringing such packaging laws. The counterfeited tobaccos do not adhere to any standards and may be adulterated with Sulphur and Carbamide making them far more harmful to public health than ordinary tobacco. It has been pointed out by many that that nothing is easier to template and copy than standardized design, shape and colour of a product[5]. According to a 2014 KPMG report[6], the use of illegal tobacco in Australia reached record levels in 2013 and represented 14.5% of total consumption.

In Indian context, taking into consideration that nearly 75% of all cigarettes are sold loose and the buyer does not even come in direct contact with the packaging, it becomes even more important to examine whether or not there is a need of such packaging laws and policies. Apart from the effectiveness of such policies, the policy makers must also consider all the possibilities of the ill-outcomes that such can policies have. A few psychologists have also argued that the mandatory placement of graphical warnings and packaging requirements on the boxes can easily increase its ‘attractive value’, stemming from the appeal often associated with experimenting with the illicit and forbidden, – inducing the young adults to play daredevil and try their hand on that-which-must-not-be-touched. There also have predictions that standardized packaging would lead the brands to a brutal price war making the products cheaper than before and thus making them more affordable. Thus, all such concerns leads us to a need of analysing the pros, cons and effectiveness of such Tobacco packaging and labelling policies.

Author: Saumya Gupta, intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at [email protected].

References:

[1] Amendment to Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) introduced in LokSabha by M.P, Baijayant Panda in 2012.

[3]https://www.tobaccocontrollaws.org/files/live/India/India%20-%20G.S.R.%20182%28E%29%20-%20national.pdf

[4] Vathesatogkit P, Charoenca N Indian J Public Health. 2011 Jul-Sep; 55(3):228-33.

[5] Snowden, C. (2012). Plain Packaging.Commercial expression, anti-smoking extremism and the risks of hyper-regulation. Adam Smith Research Trust, pp9.

[6] https://home.kpmg.com/content/dam/kpmg/pdf/2016/04/australia-illict-tobacco-2015.pdf