After a long haul, the much-awaited challenge to Cigarettes and Other Tobacco Products Act (COTPA), the Packaging and Labelling rules, 2008 and the 2014 amendment came up for hearing at the Karnataka High Court. On 24th August, 2016, a division bench of Justice Nagarathna and B.S Patil, started hearing the matters.
The first day began with arguments by the Counsel for the Tobacco Institute of India. He laid out the broad overview of the main arguments that would be addressed by the petitioners against the COTPA Act, the 2008 Packaging and Labelling Rules, along with the 2014 amendment to the same which provided for a 85% health warning.
Arguments regarding constitutional competency
The Counsel argued that the Preamble of the rules under COTPA states that it is a legislation that has been enacted to further public health concerns. However, public health, is a subject matter under Entry 6 of the State List as per Schedule VII of the Indian Constitution. The relevant entries in this regard are:
- Entry 33, Concurrent List (List III)- “33. Trade and commerce in, and the production, supply and distribution of — (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;”
- Entry 52, List I- 2. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.
The counsel submitted that though the Parliament has the power to make a law regulating a particular industry or a product, the power cannot extend to the consumption of such product. If the COTPA traces its constitutional validity to Entry 52 of List I, then, as per the Counsel, the COTPA legislation has already achieved its objective and therefore the law should not regulate consumption of the product as well. The amendments challenged in this regard which provide for 85 % health warnings, it was argued, are onerous in their regulation of the consumption of the product.
Arguments regarding consumer rights and trademark
As per the COTPA, the advertisement of tobacco products is banned. However, the proviso to Section 5 provides a limited right to cigarette and other tobacco product companies, to advertise their products on the package containing the product. The counsel argued that the 2014 amendment to the 2008 rules mandating an 85% health warning on the pack, takes away this limited right to advertise the product. This is against the right to commercial speech enjoyed by these companies. In addition, it also affects consumer rights of the public who have a right to reliable consumer information regarding tobacco products.
In addition, the Counsel pointed out that Section 7(4) of the COTPA provides that not less than one panel should carry the specified health warning. The Counsel for the petitioners argued that this was enough to deter and discourage those who are already smoking. Therefore, pack warnings are not required on both panels and therefore, the mandate of 85 % of health warnings is excessive and arbitrary and violates the right of trademark enjoyed by the tobacco companies.
Section 8 of the COTPA provides for the manner in which the warning should be made. That is, it should be legible, prominent and conspicuous. The counsel for the petitioners argued that the 2008 rules already fulfilled that criteria and therefore there was no need for the 2014 amendments.
Arguments on Lack of Medical Evidence
One of the most controversial arguments made by the petitioners’ lawyer was that there is no medical report/evidence to conclusively state that smoking causes cancer. The pack warning, therefore, is a false, misleading message. They contended that no material is there to show how the government arrived at these facts and pictorial descriptions. The Counsel instead contended that cigarettes promote camaraderie.
Arguments for Legal Metrology Act
The Counsels for the petitioner also argued that the Legal Metrology Act also mandates certain requirements of printing and therefore, if these provisions are to be complied with as well, there would be no space left for commercial speech.
Rule and Section Specific Arguments
- Rule 3(g)- These rules which provide that words such as ‘light, ultra light, mild’ are misleading and create an erroneous impression as to the health effect of tobacco products and therefore should not be printed. The counsels for the petitioners contended that these rules were excessively harsh and curtailed the rights that tobacco companies had under Article 19(1)(g).
- Rule 3(c)- to achieve the objective of being legible, conspicuous and prominent, it cannot be said that unless the coverage of the health warning is 85%, the pack warning is not legible, prominent and conspicuous.
Therefore, these rules curtail the rights of the petitioners under Article 19(1)(a) and Article 19(1)(g).