Phu phu kar rahe ho? Kerala HC just said that it has been going on since the dawn of civilisation and somehow is not preventable?
A recent call by the Kerala High Court has provided a significant insight into the issue of smoking, declaring that smoking has been part of life since the beginning of recorded history, and therefore cannot be eliminated as an option for individuals.
Kerala High Court on Smoking: “Part of Life Since Civilisation”
Smoking is an individual choice and cannot be removed from the individual; however, efforts have been made through legislation to limit the negative effects of smoking on the community.
The Chief Justice of the Kerala High Court expressed this position very clearly during one of the hearings of the matter,
“From the dawn of civilisation till date, they have not been able to [prevent smoking]. Smoking has been part of life and still is. It is for the person to decide whether to smoke or not. There can be no direction to not smoke.”
While the Court does recognise that regulation plays an important role in limiting the effects of smoking, it also intends to assist the public in making informed decisions; the Court has therefore recommended that information relating to the amount of tar and nicotine in each cigarette be clearly displayed on all cigarette packages for the benefit of consumers.
Smoking Cannot Be Prevented, Says Kerala HC in Key Observation
Another key aspect of the findings provided by the Court was in relation to smoking habits in general. The Court found smokers do not generally consider the amount of tar and nicotine in cigarettes when purchasing one, but rather choose cigarettes based on brand preference.
“Smokers don’t look at how much tar or nicotine is in cigarettes. They go by the brand. People who smoke Marlboro or Gold Flake Kings will not look at this.”
In simple words, he noted that people who smoke are brand paglus.
Based upon this evidence, the Court found that regulations requiring the disclosure of tar and nicotine information in accordance with the premises of the tobacco use regulations do not appear to be successful in providing sufficient information to consumers, resulting in a high failure rate of these requirements.
The Court recognised that whilst the purpose of such disclosures is to inform consumers, they might not actually affect buying habits. The Bench recognised the importance of transparency, saying that clear and standardised labels would be useful for smokers to make informed choices, but would not necessarily deter continued smoking by regular users.
The Court made the above comments while considering a petition that asked for stricter regulations concerning tobacco products. The petitioner requested several things, including:
- To prohibit any advertisement of cigarettes;
- To require proof of age for all cigarette consumers at points of sale;
- To absolutely prohibit smoking in public places.
COTPA Section 7(5): Law on Nicotine and Tar Disclosure Explained
The petitioner’s claim was further compounded by widespread violations of the Cigarettes and Other Tobacco Products Act, 2003 (COTPA), particularly with respect to supporting cigarette labelling requirements.
The Petitioner argued that authorities were failing to enforce current laws, and that the Court should step in, and rightly so!
The central issue in the case involves Section 7(5) of COTPA, that requires cigarette packages to clearly indicate the amount of nicotine and tar within the package. There is widespread non-compliance for this section (and HOW!)
The Court has previously directed the Central government to file a report regarding compliance with Section 7(5). However, in front of the Court during the hearings, the Centre said that Section 7(5) had not been formally notified to the public.
This created a gap in the law, and a HUGE one!
Centre Yet to Notify Key Tobacco Labelling Provision
The Court acknowledged the limitation placed upon it by acknowledging that it cannot require manufacturers to change their labelling practices until after the Government has legally notified the legislation.
The Court stated, “However, with regard to the fact that the same subsection has not yet been notified, we cannot direct the manufacturing companies to change its labels to add nicotine and tar contents.”
This statement represents one of the most poignant regulatory bottlenecks, and the system honestly felt choked at the moment. While the legislation exists on paper, without formal communications through the notification process, enforcement will be weak for real.
The earlier enforcement directions of the Court assumed the enforcement date of Section 7(5) had already occurred, when in fact, it had not occurred.
As such, although the Court does not have the power to make a legally binding order on manufacturers without a formal notice by the Government, it has directed the State regulatory agencies to continue strict enforcement and ensure strict enforcement of current tobacco laws.
The Bench did urge the State enforcement authorities to use every means available to ensure strict enforcement of COTPA and all other associated regulations, including the need for a consistent approach to ensuring enforcement due to inconsistencies in nicotine and tar labelling on cigarettes.
Several packs have labelling while others do not; therefore, the Bench directed the Department of Health and Family Welfare to have a specified amount of nicotine and tar content to enable smokers to make more informed choices.
ITC and Gold Flake Under Scanner Over Alleged Misleading Labels
The petitioner has expressed concerns regarding the brands of cigarettes manufactured by the Indian Tobacco Company (ITC), which have packaging descriptors such as “honeydew,” “smooth as never before,” and “more flavors – More Experience” can be considered indirect promotions of tobacco and create a umm…misleading impression, which violates statutory restrictions against providing false impressions of cigarettes.
The Court has ordered ITC and Gold Flake to respond to these allegations, and a further hearing in two months will examine the matters in full and fledged detail.
What Kerala High Court’s Smoking Observation Means for India
The case remains “ongoing” and there are a number of unanswered legal questions regarding:
• Will the Central Government notify the provisions of Section 7(5) of COTPA?
• Will all cigarette manufacturers be required to comply with a consistent labelling standard?
• How will the Court determine the allegations of misleading descriptors?
The next hearings in this matter will be significant in establishing future regulations for the tobacco industry in India.