India: Supreme Court Declines To Stay Karnataka HC Ruling On Tobacco Pictorial Warning

Last Updated: 5 February 2018
Article by S.S. Rana & Co. Advocates

Cigarette packages in most countries carry a health warning, however, the position, size and general strength of these warnings vary considerably across jurisdictions.1 For example, it is a statutory requirement in countries like Canada, Brazil, Singapore, Thailand, Australia, amongst others. India became a member of this list in 2009 with the notification of Cigarettes and other Tobacco Products (Packaging and Labelling Rules), 2008, in the Official Gazette on November 28, 2008, and came into force on May 31, 2009. In the 2008 Rules, it was a statutory requirement to display health warnings which would take at least 40% of the principal display area on the cigarette package.2

The 2008 Labelling Rules were amended in 2014, which were notified on October 15, 2014, and came into force on April 1, 2015. As per the new Rules, the health warning shall cover at least 85% of the principal display area of the package of which 60% shall cover pictorial health warning and 25% shall cover textual health warning.3

The Karnataka High Court quashed the said rule regarding 85% warning on principal display area as arbitrary, unreasonable and also said that the amended rules lacked empirical data. NGO named Health for Millions Trust filed a Special Leave Petition in the Supreme Court against the order of the Karnataka High Court. The Supreme Court while quashing the order of the Karnataka High Court said "though a very structural submission has been advanced by the learned counsel for the respondent that it will affect their business, we have remained unimpressed by the said "health of a citizen has primacy and he or she should be aware of that which can affect or deteriorate the condition of health." The Court went on to say that "deterioration may be a milder word and therefore, in all possibility the expression 'destruction of health' is apposite".4

Health warning to labels on tobacco products constitute the most cost-effective tool for educating smokers and non-smokers alike about the health risks of tobacco use. The evidence for greater potential impact of pictorial warnings have come from focus groups and interview studies and population based surveys among Canadian smokers5. It has also been found that when taken as a whole, the research on pictorial warnings show that they are:

  1. more likely to be noticed than text-only warnings labels;6
  2. more effective for educating smokers' thoughts about the health risks and
  3. associated with increased motivation to quit smoking.7

While there are many advantages of putting a pictorial warning on the principal display area of the packet, including but not limiting to the direct message it sends to the users looking at the cigarette packet and the deep impact it has on the mind of the people who have just begun smoking cigarettes; there are certain disadvantages also. These disadvantages include the negative publicity that the companies receive due to such warnings. The business of the company as a whole is also affected because, more the number of people who see those warnings on the packages, the more the number of people will at least try to refrain themselves from smoking, thus, affecting the revenues of the tobacco companies. This is one of the main reasons as to why tobacco companies oppose such laws regulating the size of the warning to be displayed on the packages of tobacco products. The other reason for opposition of such regulation is that the tobacco companies fear that their Right to Practice any profession, or to carry on any occupation, trade or business8 is being infringed by such regulations of the Government. In this regard, the Government claims and contends that such regulations are not infringement of the rights of the tobacco companies but it is a reasonable restriction put on them under Article 19 (6)9 of the Constitution of India. The State contends that smoking is not in the interest of the general public and therefore, putting reasonable restriction is just and valid. Keeping this in mind, smoking in public places is also banned.

The matter10 is up for final hearing on March 12, 2018.

Footnotes

1. http://www.who.int/bulletin/volumes/87/8/09-069575/en/

2. Rule 3(1)(b), Cigarettes and Other Tobacco Products (Packaging and Labelling) Rules, 2008.

3. Rules 3(1)(b), Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014.

4. Health for Millions Trust v Union of India & Ors. (SLP (C) 37348/2017).

5. Hammond D, Fong GT, Borland R, McNeill A, Cummings KM, Hastings G. Effectiveness of cigarette warning labels in informing smokers about the risks of smoking: findings from the International Tobacco Control (ITC) Four Country Survey. Tob Control 2006; 15: iii19-25 doi: 10.1136/tc.2005.012294 pmid: 16754942.

6. http://onlinelibrary.wiley.com/doi/10.1111/j.1360-0443.2009.02508.x/abstract;jsessionid=73714F3A8F3C376B7F6890809275B751.f04t03

7. ibid

8. Article 19(1)(g), Constitution of India, 1950.

9. Article 19(6): Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,

i. the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or

ii. the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

10. Supra at pt. 4.

For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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