Thursday, 8 September 2016

A Brief on India’s recent implementation of 85% pictorial health warnings on tobacco packages

A Brief on India’s recent implementation of 85% pictorial health warnings on tobacco packages

India, first announced its commitment to 85% pictorial health warnings on both sides of tobacco products, up from the then existing 40% on one side, in October 2014, notifying April 1, 2015 as the date for implementation.  However, the implementation of the new warnings faced severe roadblocks due to intense tobacco industry lobbying and unscientific claims and proposals for delay by a Parliamentary Committee reviewing India’s tobacco control law. Following judicial interventions, the Ministry of Health and Family Welfare, committed to implementing the 85% pack warnings from April 1, 2016.[1]
As expected, tobacco industry deployed all tactics to stall implementation yet again citing livelihood and economic concerns and even halted production for over a month. On April 2, 2016, ITC announced a temporary closure of five of its plants. However, the tobacco industry was forced to relent and comply with the new regulation following the Supreme Court’s directive in May 2016 to all cigarette companies to follow the new rules on pictorial warnings in a move “necessary to educate people.”
On World No Tobacco Day 2016, civil society and youth representatives felicitated the Hon’ble Minister for Health and Family Welfare,Government of India Shri J.P. Nadda 3for standing firm on MoHFW’s commitment to implement the 85% pack warnings on both sides of tobacco packages. Doctors for Tobacco Control in India-DFTCI (a coalition of medical associations formed to accelerate tobacco control efforts in India and led by the Indian Medical Association) also felicitated Shri. Nadda for his firm resolve to implement the large-sized, graphic warnings, which now place India among the top countries vis-à-vis size of pack warnings.
The new rules have been implemented and the 85% pack warnings (both on front and back of the packages) can be seen at tobacco-selling kiosks. However, the rule to display graphic pictorial warnings on boards at kiosks to warn against tobacco sale to minors (below 18 years) is still not being implemented. 
Current set of Pictorial Health Warnings (85% -both on front and back of the tobacco packages)          
The Karnataka High Court Case on PHWs
The Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014, notified vide GS.R No. 727 (E) dated 15th October 2014 were challenged before the Karnataka High Court in the following cases: Tobacco Institute of India Vs Union of India (W.P No.  4470/15), Mr. B Shivanna Vs Union of India (WP No. 59460/14), G.R. Venkatesh Murthy Vs Union of India(W.P No. 56789/14) and Shri Javre Gowda Vs Union of India(WP No. 59587/14)], however no interim order was passed.
 The Karnataka Beedi Association filed a Writ Petition No. 53876/2015, on 02.12.2015, challenging the vires of the Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014, GSR No. 727(E). The Hon`ble Karnataka High Court vide an ex-parte order dated 4th December 2015 stayed the operation of the said Rules.
In May, 2016, the Supreme Court bench vacated all the stay orders issued against larger pictorial warnings by any other court in the country and said tobacco manufacturers must abide by the new norms.
The bench also directed that related petitions in three high courts should be transferred to the Karnataka High Court in two weeks and the matter should be decided in eight weeks and also held that:
“This order will not stand in the way of the Karnataka High Court deciding the matter on merit. Any stay granted by any court shall not be implemented until the final order is passed by the Karnataka High Court.” 
Following the directions by the apex court, a special bench of the Karnataka High Court, constituted to hear a batch of petitions on the 85 per cent health warning on cigarette and tobacco related product packages, started the hearing on August 24, 2016.
Arguments by the tobacco industry are being heard by the High Court since this date.
Broad Issues raised by the industry
1.      Focus on the legitimacy of the COTPA: The issue that they have raised is that there is a conflict between COTPA and the Tobacco Board Act, 1975. They have challenged the legitimacy of the Act as a whole and not only the 2014 PHW Rules.
2.      Secondly they have asked to present more scientific evidence establishing the link between tobacco and cancer.
3.      Whether the Centre has power to make such rules?
4.      Issues like the Trademarks Act have also been raised
Other points to be considered:
·         Three benches have been changed till date.
·         There are about 50 cases: 23 from Karnataka, 15 from Kolkata and the rest from other parts of the country (one of the cases in the Rahul Joshi case from the Rajasthan High Court).
·         The current bench comprises of Justice Patil and Justice Nagar.


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