This is a post authored by Varsha Iyengar.
On World No Tobacco Day, Prime Minister Modi tweeted, calling for people to “pledge to spread awareness on the risks of tobacco consumption and work to reduce tobacco consumption in India.” The Government progressed towards this on 25th November when the Health Minister announced that the Ministry had decided to support the prohibition on “sale of loose or single stick of cigarette”. The Ministry also recommended increase of fine/penalty and to make offences cognizable under Control of Tobacco and Other Products Act, 2003. However, within a week, the proposal to ban the sale of loose cigarettes and to review COTPA accordingly was shelved indefinitely.
Two public health concerns motivate the ban on sale of unpackaged cigarettes: First, while cigarette packs carry statutory warnings to consumers that smoking kills, loose cigarettes do not carry any such warning. Secondly, loose cigarettes are cheaper and more easily accessible, especially to minors, thereby encouraging early smoking. Section 7 of COTPA prohibits direct or indirect sale of cigarettes unless the packs contain specified warning. Sections 8-10 specify the manner in which warnings should be displayed, the language to be used and size of the letters on the pack. Section 6, prohibits sale of cigarettes to a minor. Even though the ban on loose cigarettes was clearly recommended in light of these concerns, it was followed by a flurry of newspaper reports, meetings and comments, none of which, unfortunately, had much to do with the public health aspect of this announcement.
Post- Announcement Backlash
A week after the announcement, Parliamentary Affairs Minister, M Venkaiah Naidu, hurriedly held an inter-ministerial meeting, the chief objective of which was to urge the Health Ministry to reconsider its decision. Others in the meeting were Chemicals and Fertiliser Minister, Minister of State (MoS) for Commerce and Industry, MoS for Agriculture and “some MPs from Andhra Pradesh and Karnataka”, the top two tobacco producing states in India.
Terming the Health Ministry’s decision as a “hasty step”, the Minsters pointed out that several farmers’ livelihood depended on tobacco, a cash crop. The meeting ended with the Health Minister agreeing to put his recommendation for ban on hold until the issue on alternative cash crops was resolved. Thus, in a week’s time, one progressive move towards safeguarding public health was shelved indefinitely in the interest of the tobacco industry.
One Step Forward, Two Steps Back
The ban on loose cigarette sale is in consonance with the WHO Framework Convention on Tobacco Control (FCTC), which India signed and ratified in February 2005. Article 16(3) of FCTC states: “Each Party shall endeavour to prohibit the sale of cigarettes individually or in small packets which increase the affordability of such products to minors.” In the US, the Food and Drug Administration (FDA) prohibits breaking open cigarettes or smokeless tobacco packages to sell products in smaller amounts. In UK, Children and Young Persons (Protection from Tobacco) Act 1991 makes sale of unpackaged cigarettes an offence. Therefore similar reform in India would have been a progressive move towards implementing FCTC and bringing India’s committing towards reducing tobacco consumption among minors, on par with other developed countries. However, these concerns were last, if not non-existent, in the priority list of the inter-ministerial meeting.
Reports on the meeting suggest that the Ministers mainly discussed the impact of the ban on tobacco farmers. It is not clear how the ban would adversely impact tobacco farming in India, given that cigarette packs would still be sold and there is no such ban on other tobacco products. Obviously, the impact of this ban is on cigarette companies, since loose cigarette sales make up 70% of total cigarette sales in the country. While the inter-ministerial meeting was held in the garb of protecting the interest of the “farmers’ livelihood”, all it actually did was protect the interests of tobacco industry giants in India. Cigarette market in India is dominated by three companies: ITC, Godfrey Phillips and VST Industries. A day after the inter- ministerial meeting, ITC became the top gainer among 30 Sensex components. Shares of ITC and other stocks of VST Industries surged up by 6%. Phillips stocks rose up by 10%. Clearly, it is these financial interests that were being protected in the inter-ministerial meeting.
The hold on prohibition of loose cigarette sale is a big blow to public health initiatives and Government’s commitment to ensure reduction in tobacco consumption, especially among children. It has also resulted in halting State level reforms, such as the proposal in Karnataka to ban loose cigarette sale. What is more disappointing is that the discussion among ministers and even in the media centered, not on the impact of this ban on public health and tobacco reduction, but on its impact on the tobacco industry.
The inter-ministerial meeting had disproportionately high number of Ministers representing the interests of Big Tobacco and pushing its interests. The Government of India (Transaction of Business) Rules specifically mandate that in any inter-department consultation, the Law Ministry “shall be consulted” on proposals for legislation/rules/orders in the exercise of a statutory power. This was completely absent in the inter-ministerial meeting that decided to put a hold on a significant review and amendment to COTPA 2003. Further, there was no representation from Ministry of Women and Child Welfare, which has areas of work that overlap such reforms.
Following the initial announcement on ban, media reports focused on its impact on tobacco companies’ shares. Following the inter-ministerial meeting, news reports again reported on the surge in stocks. There were only two main mentions of FCTC following the initial announcement: one by the Times Group that mentioned the Convention in passing while generously quoting directly from the tobacco companies and trade analysts on the impact on sales. Indian Express carried a positive mention of India’s obligation as regards FCTC. However, following the inter-ministerial meeting putting the ban on hold, none of the major news reports carried any mention of FCTC.
Debate on legal reforms concerning tobacco sale and consumption regulation must start with their impact on public health and reduction of tobacco use by children and other vulnerable targets. While it is fair to debate on the effectiveness of the ban vis-à-vis achieving actual reduction in cigarette/tobacco consumption, focusing solely on its impact on company sales and stocks essentially diverts the actual intent of such reforms. Article 5(3) of FCTC clearly states, “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.”
The events in the last week of December show that the Government did the opposite, i.e. protect tobacco industry interests from public health policies. Discussion and debate on regulation of tobacco sale must highlight that it is not the concern of the Government to safeguard tobacco company shares. It is, however, unquestionably the duty of the Government to ensure that every sale of cigarette is accompanied by a statutory warning and that regulations do not make it easier for children to afford and access cigarettes.