1 February 2021
Earlier last month, India’s Ministry of Health and Family Welfare placed in the public domain the ‘Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Amendment) Bill 2020‘ for pre-legislative consultations. If passed by parliament, it will be one of the first laws with significant public health ramifications in India’s post-COVID-19 society. One of the many lessons of this pandemic is the need to strengthen public health related laws and policies. Now more than ever, we need to revisit India’s national tobacco control measures. While the 2020 amendment Bill promises to address several lacunae in India’s parent tobacco control law, it leaves many urgent issues unaddressed.
Tobacco is the world’s leading cause of avoidable premature mortality and a common risk factor for most noncommunicable diseases. Health experts have expressed mounting concern that smokers may be at higher risk of developing severe COVID-19, after infection, compared to non-smokers. India is home to the second largest number of tobacco users in the world, with 268 million – or 28.6% of all adults in India. The country adopted the parent Tobacco Control Act, intended to be a comprehensive law for tobacco control, in 2003. Shortcomings in the Act have proved to be a major challenge in its effective implementation.
The 2020 amendment Bill makes certain noteworthy changes to the almost two-decades-old law. First, it prohibits designated smoking areas by removing the provision that allows for separate smoking spaces in restaurants and hotels. Second, it strengthens the ban on tobacco advertisements by prohibiting advertisements for tobacco products on internet-based platforms and social media. This ban extends to all users of internet-based platforms – not just to the producers, suppliers and/or distributors of cigarettes, etc. Third, it also bans indirect advertisements of tobacco products, commonly called surrogate ads.
Fourth – and for the first time – the Bill prohibits the production, supply or distribution of illicit cigarettes or any other tobacco products. The illicit trade of tobacco products is a major challenge to tobacco control in India. In recognition of this challenge, the Indian cabinet in 2018 acceded to the WHO’s Framework Convention on Tobacco Control (FCTC) Protocol to eliminate illicit trade in tobacco products.
Fifth, the amendment increases the minimum age of sale of tobacco products to 21 years. Finally, it enhances the penalties as provided under the 2003 law.
However, the 2020 amendment fails to adequately address three key concerns in tobacco control. The sale of single-stick cigarettes and other loose tobacco products, such as beedis, is a norm in India. This practice increases the accessibility and affordability of tobacco products and should be strictly prohibited.
Strengthening national tobacco control measures also requires protecting policies from the commercial and vested interests of the tobacco industries. Tobacco companies often engage in corporate social responsibility (CSR) activities and corporate sponsorship of events to present themselves as beneficial for society – but this is misleading.
Unfortunately, the 2020 amendment falls short of ensuring these protections, and thus undermines its own efficacy. The amendment must expressly prohibit all CSR activities by the tobacco industry in alignment with Article 5.3 of the FCTC.
Standardised and plain packaging of tobacco products play a crucial role in enhancing the noticeability and effectiveness of health warnings and reducing the product’s attractiveness. It also eliminates the effects of tobacco packaging as a form of advertising and promotion. The 2020 amendment should introduce standardised packaging across all tobacco products and so will strengthen demand-reduction measures already in place.
This amendment offers an opportunity to legislate with a public health objective and to address the many challenges in tobacco control. It is a step toward meeting India’s international commitment of reducing the prevalence of tobacco use in India by 30% by 2025. Reducing tobacco use is the state’s primary duty in improving and protecting public health under the Constitution of India – and also an additional step to protecting the right to health as guaranteed by the Constitution’s Article 21.
Kashish Aneja is a Delhi-based lawyer, legal consultant at the O’Neill Institute for National and Global Health Law, Washington D.C. and the co-founder of Society for Democratic Rights, New Delhi. He is on Twitter at @KashishAneja_.