Day 3: Arguments Before the Karnataka High Court on Validity of Health Warnings for Tobacco Product Packaging

August 29, 2016

On Day 3 the arguments as to the excessive delegation involved in the drafting of the Packaging and Labelling Rules, 2014 vis-a-vis- the COTPA continued by the counsel for Petitioner.  The following gives the provisions of the COTPA with the impugned rules and describes the argument made by the Petitioners against the rules.


  • Section 8, COTPA, Rule 3: It was argued that the only requirement under Section 8 is for the health warning to be ‘legible, prominent and conspicuous’. Therefore the mandate under the impugned Rules requiring 85% health warning is excessive and goes beyond the 4 corners of the parent act, being COTPA because the objective of being legible, prominent and conspicuous can be met with a much lesser percentage of health warning as was being done when the 2008 rules were first enacted. It was pointed out that in Schedule 3 of Rule, under Section 3 which speaks of the size of the Specified health warning, S.3(1) requires the size of the health warning to be 3.5cm X 4cm. Since this is in compliance with the requirement in the statute of being legible, conspicuous and prominent, therefore there is no need for compliance with Section 3(2) of Schedule 3 of the rules.


  • Section 7(4), COTPA, Rule 3 (1) (a) (b): Section 7(4) requires the specified health warning to appear on not less than one of the largest panels of the cigarette pack. However, Rule 3(b) second proviso prescribes that the specified health warnings have to appear on both sides of the pack. This, it was argued is excessive and goes beyond the mandate of COTPA to make the warning ‘legible, prominent and conspicuous’.


  • Section 20, COTPA, Rules 3: The punishment prescribed under COTPA is under Section 20 which is only for not complying with the ‘specified warning’. However, under Rule 3, Schedule 3, only the size of the ‘specified health warning’ is prescribed. Therefore, there is an inconsistency in the Act and the Petitioners cannot, therefore, be held liable for not complying with the 85% health warning.


  • Section 5, Proviso a, Section 9 (2), 3 (a), Rule 3 (1)(d): The first part of Rule 3(1)(d) states, ‘No messages, images, or pictures that directly or indirectly promote the use or consumption of a specific tobacco brand or tobacco usage in general’. It was argued by the Petitioners that this is inconsistent with their right to advertise on their package as provided under section 5, proviso a, read with Section 9(2) as well Section 3(a) which defines the meaning of ‘advertisement’. They argued that their constitutional right to commercial speech cannot be further curtailed by the subordinate legislation.


  • Rule 3 91) (g): Rule 3(1)(g) provides that no tobacco product package or label should contain any information that is false and misleading or deceptive. This includes the usage of words such as ‘slim’. The Counsel argued that this word is a mere description of the content of the pack and therefore, a subordinate legislation by not allowing the usage of these words has not only gone beyond the mandate of the parent statute but has also, in the garb of prescribing a health warning, restricted the right to commercial speech of the Petitioners guaranteed under Article 19(1)(a) of the Constitution. Section 5 proviso A, read with Section 9(2) already prescribe a reasonable restriction and therefore, the restriction in Rule 3(1)(g) travels beyond this reasonable restriction as well.


  • Rule 3 (h) (a) to (e): The Counsel for the Petitioners argued that rule 3(h) has no legal basis for enactment under the COTPA Act. The requirements of what a package should or should not contain is derived from the Legal Metrology Act. More specifically, rule 6 of the Packaged Commodity Rules, 2011. Therefore, Rule 3(h) (a)-(e) of the COTPA were enacted without authority by the Ministry of Health and Family Welfare.


  • Rule 3 (h), (f): Rule 3(h)(f) allows a cigarette pack to contain ‘any other matter as may be required by the Central Government in accordance with the international practice.’ India is a signatory to the Framework Convention on Tobacco Control (“FCTC”) which prescribes pack warnings on both panels of a cigarette packet. The contention of the Petitioner is that the Central Government, in complete ignorance of the fact that India is a dualist and not a monoist system, cannot possibly incorporate international conventions and treaties without an act of Parliament. Therefore, Section 3(h)(f) which allows the government to bring in internationally compliant practices on tobacco regulation is patently illegal.


  • Rule 5: The requirement to rotate the specified health warning under these rules is unjustified as it causes undue hardship on the fundamental right to freedom and trade under Article 19(1)(g) of the Constitution. Rule 5(4) allows for a discretionary grace period not exceeding 2 months. Therefore, the petitioners are faced with an undue burden of having to dispose of their cigarette packets in the limited time of 2 months. The Counsel argued that this not only violates Article 19(1)(g) but also, a subordinate legislation cannot prescribe a product as illegal when at the time of manufacture the product was legal as per the parent statute. The Petitioners have to pay excise duty on these products. Therefore the Central Government by collecting excise duty on the same at the date of manufacture acknowledges it as a legal product. It cannot then, later, through the act of delegated legislation take that legality away if the 2-month concessional period to dispose of the packs is not complied with.


One of the other arguments made today by the Petitioners was alleging lack of legislative competence of the Central Government to enact the COTPA and promote it as a public health measure since the same is a state subject. It also argued that the Supreme Court held in Ghodavat Pan Masala case that COTPA is not a legislation for the furtherance of public health. This argument will be explored in subsequent proceedings before the High Court.