Starting 01 September 2019, a new warning message will be displayed on tobacco products like cigarette packets. But what about the law that governs the rules about warnings, advertisement of tobacco products? Here is an explainer of the COTPA act.
The World Health Organisation (WHO) passed resolutions in 1986 & 1990, urging the member states to take action for ensuring that non-smokers are protected from involuntary exposure to tobacco smoke. The resolutions especially talk of pregnant women, children and others who may fall into the risk group & also to prevent children and youngsters from getting addicted to tobacco. Following these resolutions, the Government of India introduced the Cigarettes-and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act in 2003. Abbreviated as COTPA, the act has provisions for restricting sale of tobacco products like banning sale near educational institutions etc. Among other things, the act places restrictions on smoking, sale, promotion/advertising, packaging of tobacco products. Here is a detailed explainer of the important provisions of the act.
Restrictions on Smoking and Sale of Tobacco products
As per the COTPA act and subsequent rules made under this act, smoking in public places is prohibited. In addition, Hotels which have more than 30 rooms or a restaurant which has a seating capacity of at least 30 and in airports, provisions for separate smoking space have to be made.
Cigarettes and other tobacco products should not be sold/offered to any one below the age of eighteen years. Sale of such products within 100 yards radius of any educational institution is also an offence. Giving permission to perform the above acts is also considered an offence under this act.
The penalty for the violation of the above mentioned acts can go up to Rs. 200. The offences that fall under this category are compoundable and will be tried as per the procedure provided for summary trials in the Code of Criminal Procedure, 1973. (CrPC)
The Central or State government by notification in the official gazette can authorise one or more persons (who will be referred to as Public Servant as per IPC section 21) who are competent to act under the act. The accused can be detained by the competent authority if there is reasonable ground to believe that an offence has been committed. The detention will not take place if the accused provides name and address and if he/she satisfies the competent authority that they will answer any summons or proceedings against them.
The detained person will be presented before the Magistrate to be dealt with under the law. If an institution violates these sections, then it is also liable to pay a maximum penalty of Rs. 200.
Restrictions on Promotion/Advertisement of cigarettes and tobacco products
None of those who are involved in production, supply or distribution is allowed to promote tobacco or tobacco products. The act also prohibits media from advertising tobacco and tobacco products and also disallows people from taking part in advertisements which may directly or indirectly promote the use of tobacco.
Further, nobody is allowed to display advertisements, distribute pamphlets or documents or sell videos/tapes that contain promotional videos of tobacco products or cigarettes. Those who perform the above acts or even authorises/permits any of these will be held equally responsible for promotion of cigarettes and tobacco which is a punishable offence.
Erection of posters or hoardings visible to public is also treated an offence. Advertising is permitted only on the packets of tobacco products and in the entrance of shops/ warehouses where such products are sold or distributed. Endorsement of cigarettes or other tobacco products or promoting its use through gifts, prizes or any similar form is also prohibited.
If any person is convicted for advertising these products for the first time, the person is liable for imprisonment up to two years and/or a penalty of Rs.1000. Subsequent conviction results in up to five year imprisonment and/or fine which may be extended up to Rs.5000. In case a person has contravened the provisions under this section, the advertisement and relevant materials may be confiscated by the government and the material will be disposed as per the act.
Regulations on Packaging of Cigarettes & Tobacco products
It is mandatory for every packet of cigarette or tobacco product to contain the specified warning including skull and crossbones along with the other prescribed warning signs. Unless and until the warning is indicated, no one is allowed to distribute or trade or import such cigarettes and tobacco products. The specified warning should be displayed on at least one of the largest panels of the package in which these products are packed. Every packet of cigarette and tobacco product must contain a label indicating the details of the nicotine and tar contents along with the maximum permissible limits for each cigarette or packet of the product.
The Health Ministry has notified that from 01 September 2019, a new image with the caption ‘TOBACCO CAUSES PAINFUL DEATH’ in white font on red background and the words, ‘QUIT TODAY CALL 1800 11 2356’ in white font on black background should be added in the package of tobacco products.
The content of nicotine and tar should not exceed the permitted limit. The warning should be such that it is legible and prominent. The size and colour should be clearly visible and in contrast to the background colour, other fonts and colours used on the package. The warning on each of the package should be such that before opening the packet, it should be clearly visible to the consumer. English or/and Indian languages shall be used for the warning. If any foreign language is used, the specified warning should be given in English as well. Statements which are not consistent with the specified warning or belittles the warning should be refrained from using. The height of each figure and letter of the warning should strictly be of the prescribed size as mentioned under rules of this act.
Stringent punishment is prescribed for the producer/manufacturer who does not adhere to the warning rules and also does not mention the details of contents mentioned. For the first conviction, he/she has to face imprisonment up to two years and/or a fine up to Rs.5000. For subsequent conviction, fine up to Rs.10,000 and imprisonment up to five years is prescribed in the act. For selling or distribution of cigarettes or tobacco products without warning and content, punishment for first conviction is imprisonment up to one year and/or fine up to Rs.1000. Subsequent conviction will result in imprisonment up to two years and/or fine up to Rs.3000.
Authority to search and seize tobacco products
Any police officer at least of the rank of Sub Inspector or any officer of State Food and Drug Administration or any other officer holding an equivalent rank authorised by either the Central or State government is authorized under the act to carry out search & seize operations.
If the authorized authority has any reason to suspect that any provision of this act has been or is being breached, he/she may enter and search any building, office, factory, business premises or any other place where any trade related to cigarettes or tobacco products takes place or where the advertisement of the product is made or being made, in the prescribed manner at a reasonable time. The provisions of the Code of Criminal Procedure of 1973 are applicable to any search or seizure made under this act.
The aforementioned personnel also has the power to seize the packets or advertisement materials in the prescribed manner if he/she has any reason to believe that the rules of the act have been violated with respected to package or advertisement of the products. The officer can retain the seized material only for a maximum period of ninety days unless the District court under whose jurisdiction the seizure took place approves.
Confiscation of tobacco products and procedure to be followed
Any cigarette or tobacco packet or its advertisement, if found to have violated the rules of this act, is liable to be confiscated. The court is allowed to give the owner of the confiscated products the option to pay in lieu of the confiscation, a cost which should be equal to the cost of the confiscated products. Upon payment of the amount as per the court’s order, the seized products will be returned to the owner provided that before distributing it, the owner must ensure that the specified warning is mentioned along with the details of nicotine and tar content. Payment of ordered amount or confiscation of products does not prevent the offender from being subject to the punishment he/she is liable under this act. A written notice has to be given to the person from whom these items have been confiscated before any order is issued. In case such a notice is not issued within 90 days from the date of seizing, the packages should be returned to the person from whom it was seized.
What if the violations are by a company?
Like in the case of other offences, the accused shall have the option make an appeal against the decision of a court. The appellant cannot go for another appeal against the order of the court of appeal. All the offences under this Act are bailable.
In case any of the violations are been made by a company, then every person who was in charge of the company’s business and was responsible to the company for the conduct of business as well as the company will be considered guilty for the offence unless anyone involved provides evidence that they weren’t aware of the act or tried to stop it. If the offence committed is through the consent of or carelessness of the director or any other officer, then proceedings and punishments will be dealt with accordingly.
Power of the Central Government to make rules
The central government has the authority to add any tobacco product under this act, provided this should be notified in the official gazette three months in advance. Once added, the product will be legally bound by this act. In order to test the tar and nicotine contents of the tobacco product, the Central Government is allowed to grant recognition to testing laboratories by notifying in the official gazette. Central government also has the authority to alter the form and manner of warning on tobacco products, specify the maximum permissible limit of nicotine and tar content and the height of letter and figures, the manner in which search and seizure will be conducted, manner of preparation of list and delivery. The act is not applicable to those tobacco products which are being exported provided the rules in those specific countries are followed.
Featured Image: COTPA act