An Analysis of the Cigarettes and Other Tobacco Products (Amendment) Bill, 2020
Apr. 04, 2022 • Nikita Saha
AUTHOR'S PROFILE: I am Rajshree Shekhar, a 4th-year student currently pursuing BB.A. LL.B from Amity University, Kolkata. I am interested in Business and commercial laws.
INTRODUCTION
The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 was enacted by the Parliament to give effect to the resolution passed by the 39th World Health Assembly. The primary aim of the Assembly was to induce the signatory state to enforce measures and to protect non-smokers from involuntary exposure to tobacco smoke. India was one of the signatories to the 39th World Health Assembly. The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003, was enacted in 2003 and came into effect on 1st May 2004. The objective was to prohibit the advertisement of cigarettes and other tobacco products in India and to provide for the regulation of trade and commerce and the production, supply, and distribution of cigarettes and other tobacco products in India. The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 got amended, and Parliament, in the 71st year of the Republic of India, enacted a Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Amendment Act, 2020. The Bill is a step by the Government to meet India's international commitment till 2025 concerning reducing the prevalence of tobacco use by 30%.
THE 2020 AMENDMENT
The 2020 amendment brought changes in the preamble of the Act. A new para was added that states that India was one of the members of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC) held in Geneva. The primary focus of the convention was on the issue of tobacco control for public health globally; it provided various measures to reduce the demand and supply of Tobacco; these measures were the prime objectives to amend the COTPA 2003. COTPA (Amendment) Bill 2020 shall apply to India from such date as the Central Government, by notification in the Official Gazette announce. The tobacco industry is under the control of the union government as it is expedient in the public interest. Section 3(a) of the principal Act (COTPA 2003) was substituted. A new definition of advertisement was added, stating that "advertisement" means any mode such as light, sound, smoke, gas, print, electronic media, internet or website, or social media. It also includes any notice, circular, label, wrapper, invoice, or other documents or device used for publicity in any form of audio, visual, representation, or pronouncement. Earlier the definition clause of advertisement did not include any electronic and internet-based platforms. Section 3(k) was also amended, and production definition was substituted, and now it includes the making of all tobacco products.
RESTRICTION ON CONSUMING TOBACCO
Section 4 of the amended Bill will not provide any condition for a person to smoke in a public place. It clearly states that no person shall smoke in any public place within the territory of India. Section 5 of the Act prohibits the advertisement of cigarettes and other tobacco products. With the help of any medium, a person shall neither directly nor indirectly advertise nor promote any cigarettes or other tobacco products. For any pecuniary benefit, a person shall not advertise any cigarettes or other tobacco products. Here, medium to advertise tobacco products are not limited to audio, visual, or printed on any hard copy but also includes billboards, hoardings, posters, signs, non-tobacco products, tobacco accessories, buildings or other structures, vehicles, television, radio, films, music, games, live performances, all type of technologies. Promotion of tobacco products means supplying or offering free samples and sales at a discounted price on both online and offline platforms.
Section 6 of the Bill prohibits the sale of any cigarette or any other tobacco product to anyone below twenty-one years. In the principal Act, no one was allowed to sell cigarettes or any tobacco products to anyone below eighteen years. Earlier within a radius of one hundred yards of any educational institution, no one was allowed to sell tobacco products, but now it was changed to one hundred meters. The Bill states restrictions on trade, production, supply, and distribution of cigarettes and other tobacco products. Unless the seller mentions the specified warning on its package, which must be sealed and intact in original packaging, no one is allowed to carry on any trade or commerce in cigarettes or other tobacco products. The warning must be on the principal display area of the package of products in which it has been packed for distribution or sale, and the product must have the minimum quantity of raw materials used for making it that the seller has prescribed.
According to section 10 of the Bill, the word nicotine and tar content was omitted, and now it states that warning and indication for any tobacco products shall not be deemed to be under the provision of the Act if the size of letters and figures are not according to the prescribed rules. A new section states that illicit cigarettes or any other tobacco product shall not be sold, produced, supplied, distributed, or imported, directly or indirectly. Without registration or permission of the Central Government or a State Government, no one shall produce, supply, distribute, import, sell, offer or permit the sale of cigarettes or any other tobacco product. The central Government must have recognized the testing laboratory for testing and regulating the contents and emissions in cigarettes and any other tobacco products. Whenever the court confiscates any package of cigarettes or any other tobacco products under the COTPA 2020, the court, while adjudging it, shall subject to conditions as specified and provide the owner the option to pay the cost instead of confiscation, the exact costs which shall be equal to the value of the goods confiscated. After the payment of such cost, the court shall return to the person from whom they were seized on the condition that proper warning and indication must be incorporated before distributing, selling, or supplying such packages of cigarettes or other tobacco products. The seized packages of illicit cigarettes or any other tobacco product shall not be subjected to any of the above-written conditions provided by the court.
PUNISHMENT UNDER THE AMENDMENT BILL
Section 20 of the Act deals with the punishment for failure to provide specified warning and indication for nicotine and tar contents by the producers and manufacturer shall be for a term which may extend to two years, or a fine which may extend to one lakh rupees, in case of first conviction and for subsequent conviction imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees and imprisonment which may extend to five years. In the case of sellers and distributors, the punishment shall be in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with a fine which may extend to fifty thousand rupees and for subsequent conviction, with imprisonment for a term which may extend to two years and with fine which may extend to one lakh rupees. If a person is found smoking in any place, he will be with a fine which may extend to two thousand rupees. A person shall be punished with imprisonment for a term which may extend to two years and with a fine of fifty thousand rupees and for subsequent conviction the imprisonment for a term which may extend to five years and for a fine which may extend to one lakh rupees. Suppose anyone is convicted for contravention of the provision of this Bill. In that case, the Government shall forfeit the packages of cigarettes and other tobacco products or advertising materials or any other materials used to advertise those products. Those products shall be disposed of according to the Code of Criminal Procedure, 1973. Any person who is found guilty of selling cigarettes or any other tobacco products to a person below twenty-one years and within a radius of 100 meters of an educational institution shall be punishable with imprisonment for a term which may extend to seven years and with a fine which may extend to one lakh rupees. The offense committed under this Bill shall be bailable, but offenses punishable under sections 5, 6, 7, and 10A of this COTPA Act shall be considered cognizable offenses.
Under section 30 of the Bill, after giving three months prior notice central Government may, by notification in the official gazette, add or omit any tobacco product in the schedule. Notwithstanding anything contained in the Bill is inconsistent with any other law for the time being in force, the provisions of COTPA 2020 shall have their effect. Any cigarette or other tobacco products exported shall not come under the purview of this Bill. However, this Bill does not deem to authorize the export of any package of cigarettes or other tobacco products that do not contain the specified warning and quantity to any country who have a law that provides a warning and quantity on each package of cigarettes or other products other tobacco products shall have.
CONCLUSION
In the case Murli Deora v. Union of India AIR 2001, the Supreme court held that smoking is prohibited in public places but then also in many restaurants, hotels, etc. There are places known as smoking areas, and COTPA 2003 allows for designated smoking areas. Due to this allowance, lakhs of people died from passive smoking. The new bill prohibits such areas in any public place and has stricter punishment than the COTPA 2003. Despite having provisions prohibiting the advertisement and display of tobacco products, people were ignoring such regulations. Corporate social responsibilities performed by the Tobacco companies were misleading the citizens as they were promoting their brands through this. The online platform was used for advertising and informing the people about tobacco products, increasing the sale of cigarettes and Tobacco-based products, and helping minors to access these products easily. The existing penalties for prohibiting the COTPA 2003 were not sufficient and needed to be enhanced; the proper contents of emissions in products were not mentioned due to which misleading impression was formed and resulted in causing harmful effects to the people; these were the few issues that were not adequately governed by under the COTPA 2003. So, it became essential to address these issues as the death rate due to consumption of cigarettes and tobacco products was increasing. In 2020 to fill the gaps, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Amendment Act 2020 addresses these issues and has stricter punishment for contravention of any of the provisions. Three major issues were not addressed in COTPA 2020: the sale of single-stick cigarettes and other loose tobacco products, such as beedis, is a norm in India corporate responsibility by the tobacco companies should also be prohibited. Such products are easily accessible and affordable, too, which increases the practice of tobacco products in India.
Under Article 21 Right to health has been provided to the citizen of India under the constitution of India, and it is the primary duty of the state to protect and improve public health. Cigarettes and Other Tobacco Products are a significant cause of both mortality and morbidity and a common risk factor for most non-communicable diseases across the globe India is the second-largest in the world regarding tobacco users; every year, around 1.2 million people die from tobacco-related diseases. Rupees 182,000 crore is nearly 1.8% of India's GDP attributable to tobacco use through the direct and indirect cost of diseases. COTPA 2020 provides a golden opportunity for the Government to make effective and more robust laws to cater to the problem and create a tobacco-free India, paving the way for Healthy Indian citizens as health is one of the most significant wealth.
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