Plain Packaging: A Reality for India?


There have been some interesting new developments in the already controversial plain packaging issue. Simply put, this controversy revolves around the proposal to introduce bland, colourless packaging for cigarettes and other tobacco products with just the name of the brand in plain text, accompanied by a large graphic health warning. This is done in order to make these products less attractive to young people. Read more about the plain packaging issue here and here.

Plain Packaging PIL

Recently, an Allahabad based senior advocate, Umesh Narain Sharma had filed a PIL in the Supreme Court, seeking the implementation of plain packaging laws in India. At the beginning, the bench felt that the issue was purely in the purview of the Legislation and the interference of Court was unnecessary. Further, according to a Times of India report, a bench comprising of Justices T.S. Thakur and U.U. Lalit asked the counsel for the petitioner whether it was possible to say with certainty that smoking actually causes cancer. “How do you prove it? There are people who are non-smokers who have contracted cancer. And there are people who are smokers yet have lived healthy till the end,” the bench was quoted saying.

However, appearing for the Petitioner, who himself is a victim of tongue cancer due to constant usage of tobacco products, the Advocate was able to convince the bench that judicial intervention was required. The Court then issued notice to the Ministry of Health contending that delaying the implementation of plain packaging was in violation of the rights of the citizens under Articles 14 and 21 of the Constitution.  The response of the Ministry to this notice is awaited.

Indian Tobacco Laws

The primary tobacco control legislation in India is the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA).

In 2012, a Bill to amend the COTPA was introduced in the Lok Sabha by M.P, Baijayant Panda which stipulated for plain packaging of tobacco products. However, the Bill did not pass.

In 2014, a PIL was filed in the Allahabad High Court to implement a plain packaging rule in cigarettes and other tobacco products. The Court allowed the petition and stated that the Government of India must implement such a scheme at the earliest. Read more about this case here.

On October 15, 2014, the government introduced new larger warnings via a notification that, among other things, increased the health warning size on cigarette packaging. According to the notification, 85% of the surface area of the packaging of tobacco products must be covered in graphic and textual health warnings.

In 2015, the Ministry of Health and Family Welfare published a draft Bill to amend the COPTA. This Bill proposes the prohibition of the sale of loose cigarettes and prohibits even indirect advertisements for tobacco products. However, this Bill did not introduce plain packaging.

Recently, the state of Maharashtra asked all cigarette and bidi manufacturers to comply with the amended Legal Metrology Act (LMA), claiming that that it bans the sale of loose cigarettes. The veracity of this claim is yet to be verified. Jammu & Kashmir, too, has banned the practice via a notification. As per Section 7 of the COTPA, no cigarette or tobacco product may be sold without the prescribed health warning. As loose cigarettes do not contain this warning, their sale may be deemed illegal under the Act.

International Developments

The issue of plain packaging has sparked several debates and disputes in the international arena. Firstly, Ukraine had filed a complaint against Australia at the WTO. Ukraine challenged Australia’s Tobacco Plain Packaging Act 2011 on the grounds that it was violative of TRIPS and other WTO agreements. However, it later suspended its complaint in favour of finding a mutually agreed solution. Secondly, Philip Morris had also used the ISDS arbitration procedure in an attempt to try and reverse Australia’s plain packaging laws.  Australia however, emerged victorious. Ireland, Britain, France and Malaysia have also followed in the steps of Australia by introducing plain packaging laws.

Recently, UK’s plain packaging laws have also come into force. On 19th May, 2016, the England & Wales High Court, rejected applications for judicial review of The Standardised Packaging of Tobacco Products Regulations 2015 . This legislation applies to cigarettes as well as hand rolling tobacco and effectively bans the sale of flavoured cigarettes such as menthols. Interestingly, in this case, the counsel for State argued that trademark was a negative right; i.e. it excluded others from using the said trademark and therefore, the limited use of the trademark shall not take away the rights of the holder. The Court finally concluded that the Regulations permitted tobacco companies to use their name as well as the brand name on the packaging and therefore, the primary function of the trademark, i.e. as an identifier of origin was still being served.

The Future of Plain Packaging in India

The Indian Supreme Court in the abovementioned case eventually pulled up the Ministry, even though the initial reaction of the bench was very surprising and rather uninformed. Cigarette smoking was proven to cause lung cancer way back in the 1950s and the causal link between smoking and cancer is no longer a disputable fact.

While the Supreme Court contemplates plain packaging, the Indian Health Ministry has ordered government agencies to enforce the abovementioned 85% law strictly and even seize products that do not comply with these standards. This move has even led to a shutdown of tobacco factories in protest.

Earlier, India had supported Australia’s stance to introduce plain packaging at the WTO. It was also involved in the abovementioned WTO dispute as a third party. Going by the prevailing international trends and India’s stance on this issue, it is quite likely that we shall see plain packaging laws introduced in India soon.

Will Plain Packaging laws really help India?

This is the million dollar question that needs some answers, and soon.

Studies from Australia showed that the smoking rates plummeted by 12.2% over the year after plain packaging was introduced. However, these numbers are disputed as the drop can be attributed to several other factors such as the increase of excise on tobacco products. Cigarettes got more expensive and Australians started to look for cheaper options, including buying cigarettes from the black market and hand-rolling cigarettes. According to Tobacco companies, plain packaging makes it harder to control the entry of counterfeits in the market. These counterfeits do not adhere to any standards or specifications, and may be adulterated with Sulphur and carbamide, making them far more lethal than ordinary cigarettes. According to a 2014 KPMG report, the use of illegal tobacco in Australia reached record levels in 2013 and represented 14.5% of total consumption.

In the Indian context, the feasibility of plain packaging must be extensively explored. Nearly 75% of all cigarettes in India are sold loose and no enforcement mechanism seems realistically possible to check this practice. It is thus disputable whether or not a change in the packaging will actually help, since the buyer does not even come in direct contact with the packaging most of the time. Another question which arises is whether plain packaging shall be applicable to all tobacco products, including pan masala, beedi and gutka? Will it be possible to enforce these laws on local manufacturers and cottage industries? These are the aspects that must be addressed before making amendments to the Act.

(Image from here)

Vasundhara Majithia

Vasundhara Majithia is a fifth year student at National Law University, Jodhpur and a Senior Content Editor at the Journal of Intellectual Property Studies (JIPS). Intellectual property was introduced to her in her third year and she hasn’t quite gotten over it since. Her interests include an eclectic mix of Intellectual Property, Trade laws, Constitutional law, and commercial laws. When not frantically blogging, she can be found nose deep in fiction, researching serial killers, or cooking to escape hostel food.

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