It is an accident of history that tobacco became a legal product. It would be a fallacy to assume that a product which kills half its consumers was given a legal status by way of logic. When in the beginning of 19th century, tobacco was commercially used for the first time, it became a lucrative business. It was cheap to produce and easy to sell tobacco since a customer had no other option but to continue consuming it till the end of his or her life. Large profits made it easy for companies to start lobbying with the governments to scuttle out all opposition.
The manipulation goes on till today even though we have enough scientific proof which links tobacco consumption with cancer, heart disease and other ailments. By the turn of the 20th century, 14 US States had a ban on tobacco products but with time, the industry managed to come around these prohibitions. The game being played in India is quite similar and our policy makers are easy prey because for them economic growth from tax money on tobacco is far more important than people’s health.
By the turn of the 20th century, 14 US States had a ban on tobacco products but with time, the industry managed to come around these prohibitions. The game being played in India is quite similar
Tweaking Indian law
In India, tobacco consumption is governed by the Cigarette and Other Tobacco Products Act (COTPA) 2003 which is not a very strong legislation. In fact, there are indications that tobacco industry pushed for it lest a stronger law is enacted. The industry players knew it’s difficult to implement this legislation in its true spirit, the penalties are insufficient and there are several legal loopholes which can be exploited.
According to the Indian Constitution, all trade and related matters are a subject matter of the State government and the Union/Federal government is not allowed to interfere in it except for specified items. However, making a departure from this, a provision was inserted in the “Tobacco Board Act, 1975” and later in COTPA which declared: “It is expedient in the public interest that the Union should take under its control the tobacco industry.” This placed tobacco directly under the control of the Union government and barred the States from enacting stronger legislations. Thus, the tobacco industry now has to influence fewer policy makers who have a say over the whole country than dealing with decison makers in every state.
According to the Indian Constitution, all trade and related matters are a subject matter of the State government except for specified items. However, tobacco was placed directly under the control of the Union government and the industry now has to influence fewer policy makers than in every state.
Section 5(1) of COPTA is a case in point. The provision says: “No person engaged in or purported to been engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products. Provided that this sub-section shall not apply in relation to —
(a) An advertisement of cigarettes or any other tobacco production or on a package containing cigarettes or any other tobacco product;
(b) advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale.”
This exemption did not exist in any of the now redundant state-level tobacco control legislations. Another example is Section 4 of COTPA which says: “No person shall smoke in any public place provided that in a hotel having 30 rooms or a restaurant having seating capacity of 30 persons or more and in the airports, a separate provision for smoking area or space may be made.” The exemption was inserted at the last minute on the basis of a single half-page representation by the Hotel and Restaurant Association, headed by ITC Limited, the biggest tobacco company in India which also operates a chain of big hotels. Prior to 2003, such a provision/exemption did not exist in any of the state-level tobacco control legislations.
The strong provisions of The Cigarettes (Regulations of Production, Supply and Distribution), Act, 1975 have also been done away with through enactment of new law. Section19 (2) of the previous legislation said: “For the avoidance of doubts, it is here by declared that every offence punishable under this Act shall be cognizable.” Compare this with Section 5 of COTPA which implies that if somebody violates the rules governing advertisement of tobacco products or sells them without the statutory warning, the punishment for first offence is just 2 years. This means it is not a cognizable offence and somebody has to get orders from the court and deliver them to the police for any punitive action. Police can’t act on their own. No wonder, not a single such violation has been registered in last seven years since COTPA was implemented.
The new law made the offence non-cognizable which means somebody has to get orders from the court and deliver them to the police for any punitive action. Police can’t act on their own. No wonder, not a single such violation has been registered in last seven years.
The provisions regarding pictorial warnings have also been diluted. The rule to have pictorial warnings on 50 per cent display area on both sides has been replaced by 40 per cent area and that too only on one side. The compulsion to have the statutory warning in local languages has also been done away with.
India does not seem to have any policy related to tobacco control thanks to manipulative action of the industry. There is a joint secretary in the Union Health Ministry who is in charge of tobacco control besides heading 18 other departments. So, tobacco control gets only 1/19 of his time in which he just passes grant applications and deals with routine affairs. This time is also stolen by tobacco industry executives who get easy access to Nirman Bhawan (headquarter of Union Health Ministry).
The 2005 annual report of ITC Limited details how the company has been influencing policy by funding major political parties. Here’s a break up of how much each political party got as donation: Congress: Rs 1.44 crore, BJP: Rs 1.37 crore. AIADMK: Rs.0.06 crore, Trinamool Congress: Rs.0.04 crore, Bahujan Samaj Party: Rs .0.19 crore, Biju Janata Dal: Rs.0.11 crore, DMK: Rs.0.16 crore, Indian National Lok Dal: Rs 0.03 crore, Jammu & Kashmir National Conference: Rs.0.03 crore, Nationalist Congress Party: Rs.0.09 crore, Samajwadi Party: Rs.0.36 crore, Shiv Sena: Rs.0.12 crore, Telegu Desam Party: Rs.0.15 crore, Janata Dal (United): Rs.0.08 crore, Jharkhand Mukti Morcha: Rs 0.05 crore, Rashtriya Janata Dal: Rs 0.21 crore, Shiromani Akali Dal: Rs.0.08 crore and Telangana Rashtra Samithi: Rs.0.05 crore.
The 2005 annual report of ITC Limited details how the company has been influencing policy by funding major political parties. It requires no rocket science to guess what this donation was meant for.
It requires no rocket science to guess what this donation was meant for. Whenever tobacco industry is cornered, the politicians and the bureaucrats on the “rolls of the industry” start talking about the interest of the farmers. The fact is that the poor farmer gets less than 1 per cent of the net value of any kind of tobacco product sale. Now, going by the law of fair play, tobacco should face a ban similar to narcotics but our policies are framed by people who equate development with consumption. For them, more tobacco users mean more tax money from the product sale and hence higher economic growth. Need a stronger hand to stub it out.
Hemant Goswami is a social activist and his efforts in the field of tobacco control led to Chandigarh being declared the first smoke-free city of India in 2007.