India’s tobacco burden: Why it is urgent to protect Right to Health

Everywhere, there are warnings related to tobacco consumption and smoking. The harmful effects of smoking and tobacco consumption are well known yet these warnings find themselves mostly ignored in the public gaze. Every time you watch a film on screen where a character playing a role lights a cigarette, you probably skip reading the tiny words of warning which convey that cigarette smoking is injurious to health. This is the disturbing reality of India’s tobacco burden. Most of you already know that India is known to have the largest number of tobacco users in the world. Data shows that nearly 27% of all cancers in India are linked to tobacco usage.

In this context, it is pertinent to mention that a new report by the National Law School of India University (NLSIU) has released a new report on “Tobacco Control Law in India – Origins and Proposed Reforms”. In this report, it points out that smoking areas in airports and hotels and restaurants are still being allowed and the disturbing reality of exposure to secondhand smoke is continuing to be on the rise.

Sec. 4 of the COTPA 2003, for instance, completely prohibits any smoking in public places. However, smoking in certain designated areas is allowed. Sec. 6(b) of the COTPA 2003 refers to prohibition on sale of tobacco products within 100 “yards” of educational institutions rather than the prevalent metric system.

This raises the question: what are the gaps in prevailing tobacco-related laws that need to be addressed in order to ensure the much needed health benefits to trickle down.

In this detailed interaction with The Financial Express Online’s Swapna Raghu Sanand, Prof. (Dr.) Ashok R. Patil, Professor of Law, National Law School of India University, shares his insights on the rising tobacco burden and what policy-making steps can help to address the lacuna.

What is the lacuna in the existing COTPA (2003) that has been a challenge in India’s mission on tobacco control?

In 2003, the COTPA legislation was introduced to regulate the availability and advertising of most forms of tobacco products in India, to ban smoking in public places, sale of tobacco products to minors, direct and indirect ads, besides specifying the mandatory pictorial health warning to be displayed on all tobacco packs.

Though the Act intended to be a comprehensive law on tobacco control, it was adopted more than 15 years ago. Also, the law was developed before WHO FCTC came into force. Now, with the passage of time, lacunas in the Act have become apparent and proved to be a key challenge in terms of effective implementation.

Lacunas in existing Act:

• The Preamble of the COTPA 2003 does not recognise the WHO FCTC, neither does it seek to implement the provisions of the WHO FCTC.
• Sec. 3 of the COTPA 2003 gives an extremely vague definition of ‘advertisement’. This does not cover all forms of advertising, promotion, and sponsorship.
• Sec. 4 of the COTPA 2003 prohibits smoking in public places. However, smoking in certain designated areas is allowed.
• Sec. 5 of the COTPA 2003 prohibits advertising and promotion of tobacco products. However, point-of-sale advertising is allowed.
• Corporate social responsibility (CSR) is not prohibited under COTPA 2003. This means that tobacco companies can participate in activities such as providing health care, education, vocational training etc., which gives the impression that these companies are good.
• Advertising of tobacco products on internet-based mediums of communication such as mobile phones and social media is not prohibited under COTPA 2003.

What are the global best practices in tobacco control legislation which India can refer to?

• The World Health Organisation Framework Convention on Tobacco Control (WHO FCTC) is the first coordinated global effort to reduce tobacco usage, with over 182 members. India is a party to the treaty.
• Art. 5.3 of the WHO FCTC requires parties to ensure that their public health policies are protected from the interests of the tobacco industry.
• Art. 8 of the WHO FCTC requires parties to ensure public places are 100% smoke-free.
• Art. 9 and Art. 10 of the WHO FCTC require parties to control the contents and emissions of tobacco products. Countries such as Canada and Australia show best practices by requiring statements about the harm of emissions to be printed on the side panels of cigarette packages and prohibit display of emission yields.
• Art. 11 of the WHO FCTC requires proper packaging and labelling of tobacco products to prevent any misleading information. India shows best practices by requiring a health warning on cigarette packets which covers 85% of the front and the back. Australia has gone a step further with plain packaging requirements to ensure that the packet of tobacco products is not attractive.
• Art. 13 of the WHO FCTC requires parties to ban the advertising, promotion, and sponsorship of tobacco products. India’s tobacco advertising policies are labelled as ‘moderate’, as point of sale advertising and product display are allowed, along with some form of CSR.
• Art. 16 of the WHO FCTC requires parties to prohibit sale of tobacco products to and by minors. In furtherance of this purpose, countries such as Brazil, Hong Kong, Chile etc. have set a minimum number of 20 sticks for a pack, and countries such as Ecuador and Kenya have set a minimum weight for a pack.

In your view, what policy making steps can ensure that India is able to reduce its tobacco burden?

It is the primary duty of the State for improving and protecting public health, The states shall take a positive steps to implement recommendations provided by NLSIU through its report on Tobacco Control Law in India: Origins and Proposed Reforms urgently and immediately if India is serious about reducing tobacco use and protect Right to Health.