Day 6: Arguments before the Karnataka HC on validity of Health Warnings for Tobacco Product Packaging

September 1, 2016

The Counsel for the Tobacco Institute of India continued with his arguments on Day 6 of the hearing before the Karnataka High Court. The Counsel began by referring to a constitutional challenge to pictorial health warnings that were imposed on tobacco products, in the United States in the case of R.J. Reynolds v. FDA. The petitioners, in this case before the Trial Court (No. 11–1482, 2012 WL 653828) and consequently, the Court of Appeal [No. 11-5332 (D.C. Cir. Aug. 24, 2012)], sought to have this mandatory imposition declared as constituting “compelled speech”. The Counsel submitted that the warnings are similar to those that are being challenged in the present case before the Karnataka High Court, and that however; the impugned specified health warnings are “far more gruesome”. The Counsel extracted specific portions of the judgment of the Court of Appeals – which upheld the right to commercial speech – to emphasise that a warning would be unduly burdensome when not purely factual, and constitute “compelled speech”, which is against free speech. Relying further upon the decision of the Court of Appeal, the Counsel stated that, there is a narrow category of commercial speech wherein disclosures as to “factual and uncontroversial information” could be prescribed.  However, given that the FDA in the United States had admitted that the pictorial warnings were calculated to induce an emotional response, the prescription or “must carry provision” was liable to be struck down, in lieu of not being purely factual and uncontroversial.


The Hon’ble judge then enquired of the Counsel as to “when would a “must carry provision” cross the line and become propaganda?” To this, the Counsel responded that a self-incriminating provision would go beyond what is acceptable, and that such provisions should ideally dovetail into the true aspects of the product they relate to.


The Hon’ble judges then desired that the Counsel shift his focus to the main questions involved in the petition, such as the validity of the Rules under COTPA which mandated the 85% warnings and whether such legislation is permissible under the parent statute.


The Court then moved on to consider the position of law in India, for displaying health warnings on various media. Hence, Union of India v. Motion Pictures Association [1999 (3) SCR 875] was referred to show how cinema screens must display health warnings.  The Counsel responded to clarify that only the exhibitor and not the manufacturer himself is restrained, as in the present case, from advertising on the “one medium left to him to advertise”, namely the tobacco product package.


At this point, the Respondent counsels drew the Court’s attention to the fact that the United States not being a signatory to the Framework Convention on Tobacco Control (FCTC). They stated that the very judgment referred to by the Petitioner’s counsel, has spurred research and increased awareness on the harmful effects of tobacco.


The Counsel continued with his arguments by referring to another US judgment, namely Liquormart v. Rhode Island, 517 US 484 (1996) a Supreme Court decision that dealt with the restriction of price-based advertisement of alcohol, as it would lead to alcohol being sold at competitive prices, and hence would lead to greater consumption. The Counsel elaborated on the Supreme Court’s position, that such a restriction will encourage the sort of speculation that will in effect demonstrate a restriction of commercial speech, due to the “paternalistic attitude” of the State. The Counsel stressed that the State’s restrictions should be no more than is necessary to achieve a desired object. The Counsel then questioned as to why the State instead, does not spend more resources on educating children of the ill effects of tobacco in school, to achieve its objective in deterring youngsters from smoking.


The Counsel relied on yet another US case law in  Linmark Associates, Inc. v. Township of Willingboro [431 U.S. 85 (1977)], wherein putting up “For Sale” boards by residents on their property was prohibited. The Court concluded that the evidence did not establish that such a notice would evince panic selling of the houses, but would prevent the residents from obtaining certain information – as to where to live and raise their families.


The judges asked the Counsel what was stated on their cigarette packs before any of the impugned Rules prescribed their specific health warnings. The Counsel stated that words such as “Slim, Ultra Mild, Honey Dew Smooth, etc.” would be printed, and that, because of the lack of space, the commercial speech is being suppressed. The Counsel then drew the attention to the proviso to Section 5(1) of the impugned enactment (COTPA) which prohibits direct or indirect advertisement of tobacco products, i.e. the printing of any message that detracts with, or is inconsistent with the specified health warning. The judges responded to this by stating that Section 5 of COTPA does not contain any inconsistency with Article 19(1)(a), and that the advertisement by the Government, in the sense of the health warnings should not constitute grounds for challenging the provisions of the COTPA itself. To this, the Counsel responded by saying that, they are not challenging the COTPA as against Article 19(1)(a), and they are also not challenging the Prohibition of Advertisement Rules.


The Counsel then concluded the bulk of his arguments by referring once again, to the similarity of the law on Free Speech in the United States and in India, due to which he has relied on various US judgments. He then emphasised, once again, as to how the consumer cannot become a mule to carry and display the State’s ideology, on the private property (cigarette pack) purchased by him. Thus, reference was made to another US decision, namely Hurley v. Irish- American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) wherein, mnemonics involved in the banners and songs of a gay parade was recognised as being intrinsic to the freedom of speech. The Counsel stated that symbolism is an effective way of communicating ideas, and that; the judgment also recognised this under the First Amendment, in the sense that a person may choose what to say, and what not to say, or express.


Thus, the Counsel ended his arguments by stating that “Smoking causes cancer” is a statement that the Petitioner would want to avoid and should be able to choose not to say, in the least restrictive manner.