The SC’s order last month directing tobacco companies to display bigger health warnings on their products is a shot in the arm for those campaigning against nicotine abuse. The industry’s plea against it has very few takers
By Usha Rani Das
Pictorial warnings on its product packaging always made the tobacco industry see red. So it came as no surprise that alarm bells started ringing after the May 4, 2016 Supreme Court directive to tobacco manufacturing companies to comply with the rule that made it mandatory to display health warnings on both sides of the tobacco products, covering nearly 85 percent of the packaging area. The apex court bench of Justice PC Ghose and Justice Amitava Roy observed: “Tobacco manufacturers have a duty towards the society… bigger pictorial warnings on tobacco products are necessary to educate people. They should know about its effect on health.” It also vacated all stay orders by other courts vis-a-vis 85 percent pictorial warnings.
The Supreme Court’s directive came following a petition filed by the Karnataka Beedi Association for a stay on a government notification of 2014 which should have come into effect from April 2016, but was stalled due to the legal hurdles put up by the industry. The tobacco manufacturers’ argument was that the trademark and brand names would become too small on a pack dominated by 85 percent health warnings. This, in turn, would impact sales and the lives of millions dependent on the tobacco trade for livelihood. The Beedi Association’s plea was that the warnings be restored to cover only 40 percent of the packaging size. This, incidentally was the norm till the Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules 2014 was notified which enhanced the size of the warnings.
PLEA DISMISSED
The Court, while dismissing the Karanataka Beedi Association’s plea, made this observation: “Tobacco manufacturers have a duty towards the society… bigger pictorial warnings on tobacco products are necessary to educate people. They should know about its effect on health.” The government’s justification for increasing the size of the warnings has been one that has found much approval from anti-tobacco and health activists. Their point is that larger pictorial warnings would be the only way to effectively communicate the hazards of tobacco abuse to the illiterate.
In fact, the October 15, 2014, government notification makes the point that the visual warning must dominate the written one: “A pictorial representation of the ill effects of tobacco use on health shall be placed above the textual health warning, covering 60 percent of the principal display area of the package.” The amended rules immediately triggered a controversy on whether larger pictorial warnings on cigarettes, gutkha, beedi and other tobacco products can deter abusers? The apex court seems to have resolved the argument keeping in mind “the larger public interest”.
The Court’s decision was a victory of sorts for the anti-tobacco campaigners. As for the industry, it has been fighting a losing battle ever since 2009 when a government notification made pictorial warnings mandatory. A year before that smoking in public places was banned across the country. The argument put forward by the industry has always focussed on the economic implications of any fall in their business.
INDUSTRY’S RESISTANCE
Since 2009, the industry has alleged that any kinds of pictorial warnings would adversely affect the livelihoods of tobacco growers and workers. It has been repeatedly stressed that as the Indian beedi industry is the third-largest employer after agriculture, its decline would lead to mass unemployment. But this argument seems to be specious as the production of tendu, beedi tobacco, and cigarettes has increased year on year, even after printing of pictorial images on packaging started.
“The arguments given earlier by tobacco companies are all baseless now,” Binoy Matthew of Voluntary Health Association of India (VHAI) told India Legal. He also rubbished the plea by the industry that illicit trade of tobacco products has increased since pictorial warnings were introduced. “This is a myth perpetuated by the industry. Factors that determine illicit trade include the government’s inability to enforce tax measures and collect duties, the ease and cost of smuggling tobacco into a country and the extent of the tobacco industry’s participation in such trade activities. As a matter of fact, prominent pictorial warning on tobacco products will enable enforcement agencies to identify illegal/smuggled cigarettes and help them seize non-compliant products,” said Binoy.
A recent study by the All India Institute of Medical Sciences quoted in the journal, Tobacco & Nicotine Research, says that pictorial warnings do have a positive effect in deterring smoking, especially among the young. According to Binoy, large and prominent health warnings have also shown to be a cost-effective means of increasing public awareness of the health effects of tobacco use and in reducing tobacco consumption. It helps in spreading awareness among the illiterate.
PLAIN PACKAGING
It is not only Binoy who is lobbying for the cause. Plain packaging was taken as the theme of this year’s “World No Tobacco Day” by the World Health Organization (WHO). This restricts or prohibits the use of logos, colors, brand images or promotional information on packaging, other than brand names and products names and is to be displayed in a standard color and style. According to WHO, the plain packaging less-ens the attractiveness of tobacco products, limits misleading packaging and labelling and increases the effectiveness of health warnings.
Countries across the world have started implementing plain packaging. Australia was the first to do so in 2012. Ireland, the UK and Northern Ireland, and France joined the clan in 2015 by passing laws to implement plain packaging from May 2016.
If you look at the larger picture, tobacco is an enormous health and economic burden for India. Reportedly, nearly 10 lakh Indians die annually (about 2,700 daily) from tobacco-related diseases in the country. Fifty percent of all cancers in India are due to tobacco consumption. The highest numbers of oral cancer cases in the world occur in India and 90 percent of these are tobacco-related. Its abuse is a leading cause of tuberculosis-related mortality in India. A staggering `1.04 lakh crore is spent on healthcare costs to treat tobacco-related diseases. According to the International Tobacco Control Project estimates, India will record 1.5 million tobacco-related deaths annually by 2020.
VESTED INTERESTS
Given the health issues involved, why did it take two years and a court order for the government to implement a Union Health Ministry’s October 15, 2014 notification on increasing the size of the pictorial warnings? It is alleged that it dragged its feet because of pressure from the powerful tobacco lobby. This explains why it referred the notification to the Parliamentary Committee on Sub-ordinate Legislation with an objective to have wide-ranging consultation with stakeholders such as the tobacco farmers, manufacturers, retailers and concerned ministries in order to assess the impact of the enhanced pictorial warnings on farmers, workers and the tobacco industry. 
Matthew alleges that “it is because of the vested interests of some members of parliament that it took two years to implement a simple rule that is proving to be the most effective so far in combating the health risks of tobacco”. Indeed, the Committee, among whose members is Allahabad MP Shyama Charan Gupta, who owns a beedi empire, seemed sympathetic to the industry’s cause.
Its recommendation was that the increase in the size of pictorial warning must be limited to 50 percent on both sides of the cigarette packs. It was softer on beedis and other tobacco products: “The Committee strongly feels that the government needs to reconsider its decision to cover bidi industry under the amended rules and recommends that a practical approach in the matter may be adopted by increasing the size of warning up to 50 percent on one side of the bidi pack, chewing tobacco and other tobacco products, namely zarda, khaini, misri etc which will be feasible to follow and which would also ensure that a large number of people in the trade will be saved from being rendered unemployed.”
The courts stepped in when Rahul Joshi, an advocate from Jaipur, filed a PIL in the Rajasthan High Court demanding the implementation of the 2014 rules. Subsequently, the central government gave a commitment that the rule would be implemented by April 2016. The Karnataka Beedi Association had filed a plea in the apex court praying for a stay. But its plea was rejected, thus clearing the decks for larger pictorial warnings. Yes, smoking is indeed injurious to health.