Explainer: What is the COTPA act?﻿
Sai Krishna Muthyanolla
September 2, 2019
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 toany one below the age of eighteen years. Sale of such products within 100 yardsradius of any educational
institution is also an offence. Giving permission toperform the above acts is also considered an offence under this act.
The penalty for the violation of the above mentioned acts can go upto Rs. 200. The offences that fall under this category are compoundable andwill be tried as per the procedure provided for summary trials in the Code ofCriminal 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 distributionis allowed to promote tobacco or tobacco products. The act also prohibits mediafrom advertising tobacco and tobacco products and also disallows people fromtaking part in advertisements which may directly or indirectly promote the useof tobacco.
Further, nobody is allowed to display advertisements, distributepamphlets or documents or sell videos/tapes that contain promotional videos oftobacco products or cigarettes. Those who perform the above acts or evenauthorises/permits any of these will be held equally responsible for promotionof 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 thefirst time, the person is liable for imprisonment up to two years and/or apenalty of Rs.1000. Subsequent conviction results in up to five yearimprisonment and/or fine which may be extended up to Rs.5000. In case a personhas contravened the provisions under this section, the advertisement and relevantmaterials may be confiscated by the government and the material will bedisposed as per the act.
Regulations on
Packaging of Cigarettes & Tobacco products
It is mandatory for every packet of cigarette or tobacco product tocontain the specified warning including skull and crossbones along with theother prescribed warning signs. Unless and until the warning is indicated, noone is allowed to distribute or trade or import such cigarettes and tobaccoproducts. The specified warning should be displayed on at least one of thelargest panels of the package in which these products are packed. Every packetof cigarette and tobacco product must contain a label indicating the details ofthe nicotine and tar contents along with the maximum permissible limits foreach 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 whodoes not adhere to the warning rules and also does not mention the details ofcontents mentioned.  For the firstconviction, he/she has to face imprisonment up to two years and/or a fine up toRs.5000. For subsequent conviction, fine up to Rs.10,000 and imprisonment up tofive years is prescribed in the act.  Forselling or distribution of cigarettes or tobacco products without warning andcontent, punishment for first conviction is imprisonment up to one year and/orfine up to Rs.1000. Subsequent conviction will result in imprisonment up to twoyears 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 anyofficer of State Food and Drug Administration or any other officer holding anequivalent rank authorised by either the Central or State government isauthorized under the act to carry out search & seize operations.
If the authorized authority has any reason to suspect that anyprovision of this act has been or is being breached, he/she may enter andsearch any building, office, factory, business premises or any other placewhere any trade related to cigarettes or tobacco products takes place or wherethe advertisement of the product is made or being made, in the prescribedmanner at a reasonable time.  Theprovisions of the Code of Criminal Procedure of 1973 are applicable to anysearch or seizure made under this act.
The aforementioned personnel also has the power to seize thepackets or advertisement materials in the prescribed manner if he/she has anyreason to believe that the rules of the act have been violated with respectedto package or advertisement of the products. The officer can retain the seized materialonly for a maximum period of ninety days unless the District court under whosejurisdiction the seizure took place approves.
Confiscation of
tobacco products and procedure to be followed
Any cigarette or tobacco packet or its advertisement, if found tohave violated the rules of this act, is liable to be confiscated. The court isallowed to give the owner of the confiscated products the option to pay in lieuof the confiscation, a cost which should be equal to the cost of theconfiscated products. Upon payment of the amount as per the court’s order, theseized products will be returned to the owner provided that before distributingit, the owner must ensure that the specified warning is mentioned along withthe details of nicotine and tar content. Payment of ordered amount orconfiscation of products does not prevent the offender from being subject tothe punishment he/she is liable under this act.  A written notice has to be given to the personfrom whom these items have been confiscated before any order is issued. In casesuch a notice is not issued within 90 days from the date of seizing, thepackages 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 theoption make an appeal against the decision of a court. The appellant cannot gofor another appeal against the order of the court of appeal. All the offencesunder this Act are bailable.
In case any of the violations are been made by a company, thenevery person who was in charge of the company’s business and was responsible tothe company for the conduct of business as well as the company will beconsidered guilty for the offence unless anyone involved provides evidence thatthey weren’t aware of the act or tried to stop it. If the offence committed isthrough 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 productunder this act, provided this should be notified in the official gazette threemonths in advance. Once added, the product will be legally bound by this act. Inorder to test the tar and nicotine contents of the tobacco product, the CentralGovernment is allowed to grant recognition to testing laboratories by notifyingin the official gazette. Central government also has the authority to alter theform and manner of warning on tobacco products, specify the maximum permissiblelimit of nicotine and tar content and the height of letter and figures, themanner in which search and seizure will be conducted, manner of preparation oflist and delivery. The act is not applicable to those tobacco products whichare being exported provided the rules in those specific countries are followed.
Featured Image: COTPA act