Implementation of Tobacco
Control Legislation
- Hemant Goswami -
WHO- IUTLD Workshop – August 27 2009

FACT:: Every cigarette smoker
is injured. . . .
Section 44: (Indian Penal Code)
“Injury”: -The word “injury”
denotes any harm whatever
illegally caused to any person, in
body, mind, reputation or
property.
Skull of a Skeleton with Burning Cigarette
Vincent van Gogh, 1885/1886

Tobacco Trade: Criminal Law
Provisions
(Indian Penal Code) Section 284: Negligent conduct with respect
to poisonous substance: -- Whoever does, with any poisonous
substance, any act in a manner so rash or negligent as to endanger
human life, or to be likely to cause hurt or injury to any person,
Or knowingly or negligently omits to take such order with any
poisonous substance in his possession as is sufficient to guard
against any probable danger to human life from such poisonous
substance,
Shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend to
one thousand rupees, or with both.

And…
And…. The Abettors …
(Indian Penal Code) Section 108: Abettor: - A person abets an offence, who
abets either the commission of an offence, or the commission of an act which
would be an offence, if committed by a person capable of law of committing an
offence with the same intention or knowledge as that of the abettor.
Illustration:
A concert with B a plan for poisoning Z. It is agreed that A shall administer the
poison. B then explains the plan to C mentioning that a third person is to
administer the poison, but without mentioning A’s name. C agrees to procure the
poison, and procures and delivers it to B for the purpose of its being used in the
manner explained. A administers the poison; Z dies in consequence. Here, though
A and C have not conspired together, yet C has been engaged in the conspiracy
in pursuance of which Z has been murdered. C has therefore committed the
offence defined in this section and is liable to the punishment for murder.

Courts for years have rules
against the industry
Tobacco smoke contains toxic substances. The legal doctrine of "universal malice" encompasses
tobacco, i.e., toxicity "without knowing or caring who may be the victim." Mitchell v State, 60 Ala 26, 30
(1877), cited in Black's Law Dictionary, 4th ed. (St. Paul, West Pub Co, 1968), p 1110. Deaths foreseeable
result as "natural and probable consequences" of toxic chemicals, here, cigarettes' toxic chemicals.
In situations of "universal malice," a legal doctrine of particular relevance based upon the foreseeable
widespread or ("universal malice") consequences of tobacco use, harm is foreseeable to many more
than merely one individual. Of course, in law, even one wrongful incident is one too many. "If no one
else" but one person is harmed, "that is so much of loss fortunately saved to respondent," DeMarco v
United States, 204 F Supp 290, 292 (ED NY, 1962). The court was rejecting the claim that guilt should be
deemed less, as only one person was killed! No, it's not less guilt, just fewer victims re which to penalize
the accused!! DeMarco was cited as relevant to smoking in a second-hand smoke involuntary smoking
case, Smith v Western Electric Co, 643 SW2d 10, 13 (Mo App, 1982) (case of a nonsmoker objecting to
being forced to smoke, who sought court injunction like that of Donna Shimp's in 1976).
The "universal malice" doctrine especially applies as cigarettes are inherently dangerous. Banzhaf v
Federal Communications Commission, 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert den 396 US
842 (1969).

Criminal law can clearly be
pressed
Cigarettes as per their "universal malice"
characteristics, foresee ably kill when used as the
manufacturer intends and designs. Foreseeable
deaths are, in law, not "accidental." Such recurring
deaths are instead, in law, "natural and probable
consequences." Anticipated consequences are, in
law, deemed intentional, meaning premeditated.
Standard law against premeditated killings provides
for criminal charges resulting in prison or even
capital punishment.

The Way Industry has built the
brand

The Way Industry has built the
brand
Myths have been
woven around
tobacco for decades

The Way Industry has built the
brand

The Way Industry
has built the
brand
Even toddlers have
endorsed it

The Way Industry has built the
brand

The Way Industry has built the
brand

Images we have to counter

Images we have to counter

Current Images

What Exists at the moment

NOTIFICATION
New Delhi, the 5th July 2006
G.S.R. 402E
Rule 2(c): “Principal display area” means
(i) for box type packages, two equal sized largest surface area(s) of the box that may be displayed or visible under normal
or customary conditions of sale or use;
(ii) for pouch type packages, the entire surface area of the pack that may be displayed or visible under normal conditions
of sale or use;
(iii) for conical or cylindrical type of packages, the entire curving area of the pack that may be displayed or visible under
normal or customary conditions of sale or use;
(iv) for any other form or type of package, the entire surface area of the pack that may be displayed or visible under normal
or customary conditions of sale or use;
(b)“specified health warning” means, such health warnings as specified by the Central Government from time to time, in the
schedule to these rules.
Rule 3. Manner of packing and labelling.-
3(1) Every person engaged directly or indirectly in the production, supply, import or distribution of cigarette or any other
tobacco products shall ensure that,-
every package of cigarette or any other tobacco product shall have the specified health warning exactly as specified in
the schedule to these rules;

The Schedule
Schedule
(see rule 3)
Components of specified health warning.-
The components for the specified health warning shall include:
(1) Skull and Bones Sign.- Every specified health warning shall mandatorily include a pictorial depiction of skull and bones sign, in white on a black
background (100% black) with white outlines. This sign shall be prominently placed on the top left hand corner of the warning.
(2) Health Warning.- The warning “Smoking Kills” (on smoking forms of tobacco products) and “Tobacco Kills”(on smokeless/chewing and other
forms of tobacco products) shall appear in white font colour on a red background (consisting of 100% magenta + 100% yellow).
(3) Pictorial Representation of ill effects of tobacco use.- Pictorial depiction of the ill effects of tobacco use on health, shall be placed below the
skull and bones sign, and should appear in colour exactly as in the soft copy provided in the CD accompanying these rules.
(4) Health Message. - Every specified health warning shall include the health message in black font colour on a white background. The health
message should be printed in easy to read black font on a white background and the font type/font size shall be, exactly as per the
soft copy provided along with these rules.
…………………
3. Minimum size of the specified health warning.-
(1) The minimum size of the specified health warning on each panel of the tobacco pack shall be 3.5 cm x 4 cm to ensure that the warning is
legible and prominent.
(2) The size of all components of the specified health warning shall be increased proportionally according to increase of the package size to ensure
that the specified health warning occupies fifty percent of the principal display area/s of the pack.

Notification Replaced
MAJOR SETBACKS:
1. Picture Warning on both sides replaced with one side
2. 50% display on both panels (100% one side) replaced with
40% on one side
3. Strong picture messages replaced with meaningless and
useless messages
4. The necessity of having the warning language in local
language done away with
……..Thereby making the whole exercise ABSOLUTELY USELESS

Breach of Trust with the
Public
Dilution of graphic images to be printed on tobacco products
2 2
0 0
0 0
5 8

What COTPA says
Section 8:
(1) The specified warning on a package of cigarettes or any other tobacco products shall
be—
– (a) legible and prominent;
– (b) conspicuous as to size and colour;
– (c) in such style or type of lettering as to be boldly and clearly presented in distinct
contrast to any other type, lettering or graphic material used on the package or its label
and shall be printed, painted or inscribed on the package in a colour which contrasts
conspicuously with the background of the package or its labels.
(2) The manner in which a specified warning shall be printed, painted or inscribed on a
package of cigarettes or any other tobacco products shall be such as may be
specified in the rules made under this Act.
(3) Every package containing cigarettes or any other tobacco products shall be so
packed as to ensure that the specified warning appearing thereon, or on its label, is,
before the package is opened, visible to the consumer.

What COTPA says
Section 9:
(1) Where the language used on a package containing cigarettes and any other
tobacco products or on its label is—
(a) English, the specified warning shall be expressed in the English language;
(b) any Indian language or languages, the specified warning shall be expressed in such Indian
language or languages;
(c) both English and one or more Indian languages, the specified warning shall be expressed in
the English language as well as in such Indian language or languages;
(d) partly English and partly any Indian language or languages, the specified warning shall be
expressed in the English language as well as in such Indian language or languages;
(e) any foreign language, the specified warning shall be expressed in the English language;
contents.
(f) partly any foreign language and partly English or any Indian language or languages, the
specified warning shall be expressed in the English language as well as in such Indian language
or languages.
(2) No package of cigarettes or any other tobacco products or its label shall contain any matter or
statement which is inconsistent with, or detracts from, the specified warning.

The kind of aberrations
29th September 2008 Notification:
Rule 3(f): The specified warning shall be inscribed in the language/s used
on the pack:
Provided that where more than one language on the back the
specified warning shall appear in two languages, one in which the
brand name appears and other in the local language of the area
where the product is being sold.”
WHY?
WHY?
Replaced by 28th November 2008 Notification:
Rule 3(f): The specified warning shall be inscribed in the language/s used
on the pack:
Provided that where more than one language on the back the
specified warning shall appear in two languages, one in which the
brand name appears and other language used on the pack.”

The Provisions
2005; 5th July 2006 Notification and 15th March
2008 Notification
Rule 3(e): no product shall be sold unless the
package contains the specified health warning:
Provided that the specified health warning shall be
printed on every retail pack in which the tobacco
product is normally intended for consumer use or
retail sale, as well as any other external
packaging, such as cartons or boxes;

Major Aberration
15th March/ 29th Sep. 2008 Notification
Rule 2(b): “package” means box, pouch, conical, cylindrical
or any other type of pack used for packing cigarette and
other tobacco products.
WHY?
WHY?
3rd May 2009 Notification
Rule 2(b): “package” means pack in which cigarette and
other tobacco product is packaged for consumer sale but
shall not include wholesale, semi-wholesale or poora
packages if such packages are not intended for consumer
use;

Dilution - Rule 3(1)(b)
2005/ 5th July 2006 Notification
Rule 3 (1): Manner of packing and labelling - Every person engaged directly or indirectly in the
production, supply, import or distribution of cigarette or any other tobacco products shall ensure that
–
(b) the specified health warnings shall occupy at least fifty percent of the principal display area/s
of the pack and shall be positioned parallel to the top edge of the package and in the same direction
as the information on the principal display area/s:
Provided that for conical packs, the widest end of the pack shall be considered as the top edge of
the pack:
Provided further that for box and pouch type of packs, the specified health warning shall appear on
both sides of the pack, on the largest panels;
15th March 2008 Notification
Rule 3(1)(b) the specified health warnings shall occupy at least fourty (40%) percent of the
principal display area/s of the pack and shall be positioned parallel to the top edge of the package
and in the same direction as the information on the principal display area/s:
Provided that for conical packs, the widest end of the pack shall be considered as the top edge of
the pack:
Provided further that for box and pouch type of packs, the specified health warning shall appear on
both sides of the pack, on the largest panels;
3rd May 2009 Notification
Rule 3(1)(b) the specified health warnings shall occupy at least fourty (40%) percent of the
principal display area/s of the front panel of the pack and shall be positioned parallel to the top
edge of the package and in the same direction as the information on the principal display area/s:
Provided that for conical packs, the widest end of the pack shall be considered as the top edge of
the pack: ( The Second Proviso about display on both sides go missing)

Penal Provisions
Section 20 (2): Any person who sells or distributes
cigarettes or tobacco products which do not contain either
on the package or on their label, the specified warning and
the nicotine and tar contents shall in the case of first
conviction be punishable with imprisonment for a term,
which may extend to one year, or with fine which may
extend to one thousand rupees, or with both, and, for the
second or subsequent conviction, with imprisonment for a
term which may extend to two years and with fine which
may extend to three thousand rupees.

Penal Provision
Section 20: (1) Any person who produces or manufactures
cigarettes or tobacco products, which do not contain, either
on the package or on their label, the specified warning and
the nicotine and tar contents, shall in the case of first
conviction be punishable with imprisonment for a term
which may extend to two years, or with fine which may
extend to five thousand rupees, or with both, and for the
second or subsequent conviction with imprisonment for a
term which may extend to five years and with fine which
may extend to ten thousand rupees.

Old Cigarette Act of 1975
The Cigarettes (Regulations of Production, Supply and Distribution),
Act, 1975 [The Act replaced by 2003 Act - COTPA]
Section 17: Penalty- Any person who,-
(a) sells, or distributes or supplies in the course of any trade or commerce, any
package of cigarettes which does not contain, either on the package or on its
label, the specified warning,
(b) produces, or supplies or distributes in the course of any trade or commerce,
any package of cigarettes which does not contain, either on the package or on
its label, the specified warning,
(c) advertises, or takes part in the advertisement of, cigarettes if such
advertisement does not include the specified warning,
shall be punishable with imprisonment for a term which may extend
to three years, or with fine which may extend to five thousand WHY?
rupees, or with both. WHY?
Clearly COTPA has been made weaker and also
Clearly COTPA has been made weaker and also
been diluted even if compared to 1975 Act
been diluted even if compared to 1975 Act

Major Legal Barriers
Provision of “The Cigarettes
(Regulations of Production, Supply and
Distribution), Act, 1975:”
Section 19: Offences to be cognizable and bailable -
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, an offence punishable under this
Act shall be bailable.
(2) For the avoidance of doubts, it is hereby declared that
every offence punishable under this Act shall be cognizable.

Major Legal Barriers
Provision of “CIGARETTES AND
OTHER TOBACCO PRODUCTS
ACT, 2003:”
Section 27: Notwithstanding anything contained in
the Code of Criminal Procedure, 1973, an offence
punishable under this Act shall be bailable.
(The necessary requirement of the offences being
COGNIZABLE is missing)

Criminal Procedure Code
THE FIRST SCHEDULE
II-CLASSIFICATION OF OFFENCES AGAINST – OTHER LAWS
If any offence is punishable with imprisonment for less than
3 years or with fine only it is triable by any magistrate and
shall be treated as Non-Cognizable
(Unless the cognizability of an offence is mentioned in the legislation)
Meaning thereby: A policeman/enforcement officer
can not make arrest without warrant and/or register FIR or
investigate without courts prior order

Makes it useless
This lacunae leaves the pictorial warning
provisions largely un-implementable and
useless. Only a highly motivated law
enforcement officer is likely to go
through the long process to book any
violator. This has till date not happened
with Section 5; which also has a similar
lacunae.

Lost Battle
Let’s have no doubt that we have lost a battle…….
………………… even though the war is still on
Let’s not live in a make-believe world .…..
We have been unsuccessful
BECAUSE
In compliance to FCTC, picture warnings on tobacco products had
to come in any case. At the most, there could have been a little
delay; this would have been more acceptable than what we
have at present……

The way Out - Remedy
Scrap the 3rd May 2009 notification which introduced
aberration in the “Picture Warnings.”
Scrap the March 15, 2008 notification (and all related)
Return to the 2005 notification
Make the graphic warning display more than 50% on all
sides of packs. Preferably 100% on one side and 50% on the
other.
Advocacy for the present aberrated notification in no
solution

P-
Amend the P-o-P Rule
If the May 31, 2005 Notification doesn't come
into force; amend Rule 4
Rule 4. Prohibition of advertisement of cigarette and other tobacco products.—-
(1) The size of the board used for advertisement for cigarettes and any other tobacco products
displayed at the entrance or inside a warehouse or a shop where cigarettes and any other
such tobacco products are offered for distribution or sale shall not exceed ninety centimetre
by sixty centimetre and number of such boards shall not exceed two.
(2) Each such board shall contain in the Indian language as applicable, one of the following
warning occupying twenty-five percent, of top area of the board, namely:
– (i) Tobacco Causes Cancer, or
– (ii) Tobacco Kills
(3) The board referred to in sub-rule (2) shall contain only the brand name or picture of the
tobacco products and no other promotional message and picture
REPLACE:
(2) Every board as mentioned above shall contain the specified picture warning (as provided in
schedule x -------- of -----------) in the Indian language as applicable, one of the on no less that
50% of the total display area of such advertisement. Etc…………

The way Out – Remedy
(For the Civil Society)
EXPOSE all those who introduced, agreed to
and allowed the aberrations at the cost of a
million deaths every year
Push for charges against those who gave way
to pressures and greed and agreements
Explore legal action on implementation
(Getting a court order can help)

What is Corruption
From: Prevention of Corruption Act, 1988:-
Section 13: Criminal misconduct by a public servant
(1) A public servant is said to commit the offence
of criminal misconduct, -
(d) If he,
(iii) While holding office as a public servant, obtains for any
person any valuable thing or pecuniary advantage
without any public interest;

Amend the Law
When overnight the skull-bone sign could be amended in
both the houses of the parliament (in hush-hush manner),
another amendment too can be brought in the legislation
FOR GOOD.
Section 27 has to read: Notwithstanding anything
contained in the Code of Criminal Procedure, 1973, an
offence punishable under this Act shall be cognizable but
bailable.
(Some other small changes will also fix the other loop-holes, it should be done in
partnership with the tobacco control civil society and not by taking the tobacco
industry in confidence.)

Together
We can change the
equation