India: The Ambiguity Surrounding Tobacco Advertising In India

Last Updated: 2 August 2017
Article by Vikrant Rana and Bijit Das

On May 21, 2003, the World Health Organization Framework Convention on Tobacco Control (hereinafter referred to as the 'FCTC Treaty') was adopted by the 56th World Health Assembly. The said treaty was one of the most quickly ratified treaties in the United Nations history, and it seeks to, "protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke". It seeks to achieve this objective by enacting a set of universal standards stating the dangers of tobacco and limiting its use in all forms worldwide. It has been signed by 168 countries and is legally binding in 180 ratifying countries. There are however, 16 United Nations member states that are non-parties to the treaty. Thus, one can say that there is a certain sense of worldwide uniformity related to promotion and advertising of tobacco related products.

However, in India, advertising related to tobacco products is following a different trend, as the industry has now shifted focus to advertising at point of sale outlets i.e., a place in the wholesale or retail environment where tobacco products are sold, like retail shops and tobacco kiosks. As reported on July 19, 2017, by a leading Indian news daily LiveMint1, many tobacco products are still being advertised on the boards of shops which are being prepared and erected by the company manufacturing or distributing the concerned product.

Similarly, the display of products or advertisements inside many shops is also done on a regular basis. In its attempt to sell as many tobacco products as possible, the tobacco industry uses a great variety of direct and indirect approaches with the aim of promoting its use. Point of sale tobacco advertisements have been observed not only on shops selling tobacco products, but also on shops generally not selling tobacco products. The said news article also stated that most of these tobacco kiosk owners receive payments in the form of monthly fees and even receive free cigarettes as an incentive to put hoardings that promote these tobacco products. Thus, hoardings are being placed outside establishments that may or may not be selling tobacco products with huge, colorful backgrounds mimicking the colors and design of different brands of tobacco, including pictures, descriptors, backlighting, and other eye-catching decorative embellishments2.

The fact that exposure to promotional activities for tobacco leads to initiation of tobacco use, is not unknown. Such exposure to tobacco advertisements and receptivity to tobacco marketing in turn has led to increasing tobacco use among students, an age category that has now become a target audience for cigarette and tobacco companies. Given its immense population, India has always been a high potential market as the target audience for the cigarette market falls within the age group of 18-24 Years.

The Government of India, to combat this issue, came up with the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act in 2003 (hereinafter referred to as 'the Act') and subsequently also signed FCTC Treaty, placing a comprehensive ban on tobacco advertising, promotion and sponsorship (TAPS). The Act sets out a number of stringent regulations to address tobacco promotion, with the exception of point of sale and on-pack advertising. Section 5 (1) of the Act states that "No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products." A plain reading of the above section suggests that there is complete prohibition on all direct and indirect advertisements of tobacco products. The said prohibition is in consonance with Article 13 of the FCTC Treaty and also extends to any activity that promotes the use or consumption of cigarettes or any other tobacco products. Thus, Section 5 of the Act prohibits any kind of advertisement, be it direct or indirect. The Ministry of Health and Family Welfare clarified the definition of an 'indirect advertisement', vide its notification GSR 345(E), dated May 31, 2005. It stated that 'indirect advertisement' means (a) the use of a name or brand of tobacco products for marketing, promoting or advertising other goods, services and events; (b) the marketing of tobacco products with the aid of a brand name or trademark which is known as, or in use as, a name or brand for other goods and service; (c) the use of particular colors and layout and/or presentation that are associated with the particular tobacco products; and the use of tobacco products and smoking situations when advertising other goods and services.

Though, the Act places a complete ban on any sort of advertisement of tobacco products, but the rules to the Act provide for a partial allowance with regard to it. Sub Clause 1 to Rule 4 of Cigarettes and Other Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004, states that "the size of the board used for the advertisement of cigarettes and any other tobacco products displayed at the entrance of a warehouse or a shop where cigarettes or any other tobacco products is offered for sale shall not exceed sixty centimeters by forty-five centimeters." Thus, it allows advertising of tobacco products but with certain limitations. According to the above-stated rule, tobacco products can be advertised in the package containing such products and also at the entrance and inside a warehouse storing tobacco products with a limitation that such public advertising can address only the type of tobacco products, and products that have no brand pack photo, brand name or other promotional message and picture. The Rules further state that the display board shall not be backlit or illuminated in any manner. Rule 4 (2) provides the guidelines for retail shops to display 'Tobacco causes cancer', or 'Tobacco kills' at the top edge of the board in a prominent manner measuring twenty centimeters by fifteen centimeters. Hence, retail shops that display cigarette packets with their brand names are at fault and can be held liable under the provisions of the Act. A major violation of the Act relates to the size of the board of advertisement. In most cases, the size of the board is equal to the frontal width of the shop, with each advertisement equaling the prescribed size and rest of the board being blank or bearing a picture.

This enhanced impression surely attracts youngsters, who find pride in smoking cigarettes. Advertisements on cigarette packets or on billboards and hoarding outside retail shops, works manifold in pulling the college crowd towards the apparent negatives of tobacco use. The Allahabad High Court, in its celebrated judgment in the case of Love Care Foundation v. Union of India and Anr.3, stated that plain packaging is associated with lower smoking appeal and more urgency to quit among adult smokers. The Court relied on the fact that plain packaging of cigarettes has had positive outcomes in Australia, Brazil and Ireland, wherein, branded packets were considered more appealing and better tasting. Thus, such packaging was banned, which resulted in substantial decrease in the quantity of cigarettes people smoked. The Court reached to a conclusion that plain packaging and removal of descriptions may reduce the appeal of smoking for youth and young adults, and consequently reduce smoking susceptibility. The Court stated that Tobacco plain packaging measure would be a long term investment to safeguard the health of the Indian youth. The Hon'ble Allahabad High Court, keeping in view the above contentions, advised for promotion of plain packaging, wherein, the name shall be displayed only on a restricted part of the packet, while the rest of the packet will portray health warnings as required under the Rules of 2005.

Such a ruling by the Hon'ble Court in favor of plain packaging of tobacco products is a welcome change and a step forward in improving the health of citizens. After carefully studying the effect and trend in various other countries like Australia and Brazil, it can be confidently concluded that plain packaging would lead to a positive change. Putting restrictions on retail shop owners to not advertise cigarette and other tobacco products based on their brand names, coupled with plain packaging can work towards reducing the sales of cigarettes in the country.

https://www.pinterest.com/SugandhaDubey2/indian-print-ads-vintage/

Footnotes

1. See 'Cigarette companies woo young people in India while health officials are fuming', LiveMint, Wednesday July 19, 2017

2. Ibid.

3. Writ Petition No.1078 (M/B) OF 2013 

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