Possible Barriers and Legal Remedies :: by Hemant Goswami

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    Possible Barriers and Legal Remedies :: by Hemant Goswami - Presentation Transcript

    1. Implementation of Tobacco Control Legislation - Hemant Goswami - WHO- IUTLD Workshop – August 27 2009
    2. 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
    3. 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.
    4. 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.
    5. 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).
    6. 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.
    7. The Way Industry has built the brand
    8. The Way Industry has built the brand Myths have been woven around tobacco for decades
    9. The Way Industry has built the brand
    10. The Way Industry has built the brand Even toddlers have endorsed it
    11. The Way Industry has built the brand
    12. The Way Industry has built the brand
    13. Images we have to counter
    14. Images we have to counter
    15. Current Images
    16. What Exists at the moment
    17. 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;
    18. 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.
    19. 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
    20. Breach of Trust with the Public Dilution of graphic images to be printed on tobacco products 2 2 0 0 0 0 5 8
    21. 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.
    22. 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.
    23. 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.”
    24. 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;
    25. 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;
    26. 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)
    27. 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.
    28. 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.
    29. 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
    30. 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.
    31. 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)
    32. 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
    33. 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.
    34. 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……
    35. 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
    36. 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…………
    37. 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)
    38. 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;
    39. 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.)
    40. Together We can change the equation

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