The hearings on the challenge to the tobacco pack warnings continued on the 25th November 2016 after the last hearing that was on 16th September, 2016.
The Counsel – representing about 22 petitions that were filed by various beedi manufacturers such as Bharath Beedi Works, Anand Biri Factory, Kalpana Biri Manufacturing, P&J Tobacco Products Company, etc. – continued with his arguments, which focussed predominantly on the difficulties in application of the impugned 2014 Amendment Rules to beedi packs.
The Counsel argued that the Preamble to the COTPA indicates the intention to enact a comprehensive law to prohibit the advertising of tobacco products and does not contemplate any prohibition on the sale of tobacco products.
He then argued that the definition of “cigarette” under Section 3(b) does not include beedis. He submitted that beedis are excluded due to the very different nature of the beedi industry. The Counsel emphasised that this difference in definition is in recognition of how the mechanised form of cigarette manufacturing is very different from that of beedis where every stage of the manufacturing process is manual and highly labour intensive.
The Counsel then drew attention to the repeated use of the word “or” in the sentence ‘cigarettes or other tobacco products’, which occurs in various sub-clauses of Section 31(2) of the COTPA. These sub-clauses specify the various aspects on which the Central Government can make rules under the COTPA, such as the manner of inscribing the specified warning, the height of its letters and figures. The Counsel stressed that the use of the word “or” indicates the legislature’s intention to provide for separate rules that would govern the beedi and the tobacco industry. The Counsel submitted that as the present rules are the same for both industries, they go beyond the scope of the COTPA.
The Counsel then argued that COTPA introduces certain prohibitions only for 3 issues: Prohibition on smoking in public places, Prohibition on advertisements and Prohibition on sale of cigarettes and other tobacco products to minors. He argued that there exists no legislative mandate to make rules that introduce prohibitions on packaging and labeling of tobacco products and hence the 2008 Packaging Rules travel beyond the scope of COTPA.
Justice Patil intervened to state that the COTPA does lay down requirements pertaining to the packaging of tobacco products and also places restrictions on trade and commerce in products that do not comply with those requirements. (Sections 7, 8, 10 and 31).
Justice Nagarathna then stated that the packaging rules apply to the pack and regulate the right to advertise on one’s product as is given in the proviso to Section 5 of the COTPA.
The Counsel for the beedi industry replied that rules on packaging require the warnings to be “legible, prominent and conspicuous”, and there cannot be a separate set of rules that prescribe further requirements on pack warnings.
The Counsel elaborated further, saying that the impugned Rules bring about a new definition of “specified warnings” as defined under Section 2(o) of the COTPA, which they cannot do, as they have the authority only to specify the ‘form and manner’ of the specified warnings. He argued that the term ‘specified warning’ as used in the COTPA and ‘specified health warning’ as has been used in the impugned 2014 Amendment Rules were different and that the impugned Rules go beyond the mandate of the COTPA.
The Counsel next argued that the mandate of the impugned Rules that the impugned warnings should be printed on both sides of the packet is inconsistent with the requirement in the COTPA that warnings should be ‘legible, prominent and conspicuous’. The Counsel explained that the specified health warning would be visible and prominent on only one panel, and be invisible to the eye on the opposite side. Thus, he submitted that the warning on one panel would not serve the function of being legible, prominent and conspicuous.
Next, the Counsel emphasized on the impossibility of putting health warnings on ‘two largest panels’ of the beedi packets, as they are conical and do not have a “panel” at all. He also brought out the impossibility of putting health warnings on the “two diametrically opposite sides” of the beedi packets, given that they are wrapped manually which cannot ensure such placement of the specified health warnings.
He argued that the size of the specified health warnings is even bigger than the dimensions of the smaller sizes of beedi packs, which would make it impossible for the labourers to roll the packs so as to display the warnings correctly. Further, as the impugned Amendment Rules require the specified health warnings to be displayed on the “Principal display area”, the curving area of the small beedi packs would not be able to accommodate the warnings on both sides.
Jutsice Nagarathna agreed that there was no specific application of mind with regard to the packaging requirements of beedi products. She stated that as the warnings are already printed onto the paper that is used to roll the beedis, it would not be possible to pack them so the warnings appear on diametrically opposite sides.
The Counsel added that the measurement requirements of 3.5 x 4 cms. of the specified health warnings would not fit to comprise up to 80% of the small or large sized beedi packets. To make the impugned warnings fit, the beedi packets would have to be bigger, which the Counsel joked would serve to increase consumption of beedis, contrary to the intention of the Rules.
Next the Counsel argued that the Rules, being subordinate legislation, facilitate further delegation, which is beyond their scope. To indicate this, he drew attention to Rule 2(d) of the impugned 2014 Amendment Rules, which provides for the Central Government to prescribe specified health warnings from time to time.
The Counsel then read out Section 10, which specifies that the height of each ‘letter and figure’ must conform to what is specified in the Rules. The Counsel submitted that the impugned Rules travel beyond the COTPA in specifying the width of the specified health warnings as well which are not just textual but also pictorial.
Pursuant to this, there was a short debate as to how the beedi packs are stacked under “normal customary conditions of sale” to understand if the curving area of the beedi packs would clearly display the impugned health warnings.
Justice Patil pointed out that Section 7 requires the use of pictorial warnings “as may be prescribed”, which confers wider discretion. He said that the debate is not on the power to specify, as much as the extent to which these specifications can be made.
The Counsel’s next argument pointed out that even though the COTPA prescribes that textual health warnings can be in not more than two languages, one being English, and the other a regional language, the impugned Rules require each health warning to be printed in English, Hindi and a regional language, which again, exceeds the mandate of the principal enactment.
The Counsel’s next argument highlighted the exemption that is provided to the beedi industry, against disclosure of certain information on packaging under the Packaged Commodities Rules of the Legal Metrology Act. He said that the impugned 2014 Amendment Rules ignore this exemption and under Rule 3(h), mandated the display of manufacturing date, which would be impractical for the beedi industry on account of the numerous packs that rolled on a daily basis by the labourers.
With this last argument, the hearings for the day drew to an end. The Counsel for the various petitions filed by the beedi manufacturers will continue with his arguments on the next date of the hearing, on 30th November 2016.