While few would disagree with the broad proposition that the commercial interest of profit-driven businesses has to be balanced with the interest of the public, the precise manner in which such a balance has to be struck continues to remain a deeply contested issue.
One key arena in which efforts to achieve this balance have received sustained attention on this Blog relates to the imposition of plain packaging restrictions and health warnings on Tobacco products. Simply put, such restrictions curb the commercial freedom of Tobacco manufacturers by proscribing any form of branding to increase the commercial appeal of their product and obligate them to outline, in a prominent and conspicuous fashion, the deleterious ramifications likely to flow from the consumption of their products. While as a conceptual matter plain packaging obligations and the obligation to outline health warnings may appear distinct and unconnected, they are in fact very similar, inasmuch as the central object underpinning these obligations is to disincentivize the sale of these products.
Readers interested in learning more about this issue should read Vasundhara’s article
delving into the efficacy of plain packaging laws and capturing prominent plain packaging disputes impacting India and Kiran’s exhaustive analysis
of the forces informing the debate on the imposition of these restrictions. This issue has also received some legislative (see here) and judicial (see here) attention in India. (Long post ahead!)
In a widely reported order
issued last week, the Supreme Court stayed a Karnataka High Court’s December 2017 judgment which had struck down a rule to the effect that 85% of the principal display area of any package containing a Tobacco product must set forth a prescribed health warning about the consequences of consuming Tobacco. In this article, I will try to unpack the reasons that resulted in the Karnataka High Court striking down this prescription and outline the flaws in the Supreme Court’s decision to stay this judgment. Before doing so, however, it would be useful to outline a few essential facts.
In 2008, pursuant to the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, the Ministry of Health and Family Welfare framed the Cigarettes and other Tobacco Products (Packaging and Labelling) Rules. Broadly speaking, these rules lay down the parameters governing the nature and extent of the health warnings that have to be displayed on Tobacco products, prohibit the use of any message on the Tobacco product that promotes its usage and lay down the principles in accordance with which these warnings have to be altered on regular intervals. These rules were amended in 2014 (hereinafter “the Amendment”).
While a number of cosmetic alterations were effectuated by the Amendment, the one that is significant for present purposes is this: the surface area that the health warning can cover was increased from 40% to 85% of the principal display area of the package.
Karnataka High Court judgment:
The constitutionality of the amendment was assailed before the Karnataka High Court. While the Division Bench arrived at the conclusion that the amendment was unconstitutional, there was some divergence between the judges as to the rationale for arriving at this finding.
Both judges, however, arrived at the conclusion that the Amendment suffered from one fundamental flaw – that it was not founded on any empirical data. More specifically, not only was there no basis for the Government to definitively conclude that tobacco consumption results in cancer as the warning suggested or to make the warning uniformly applicable to cigarettes, beedis and chewing Tobacco, but, more fundamentally, there was nothing to indicate that enlarging the size of the warning from 40 to 85% of the package would serve any meaningful objective.
Judge BS Patil, for instance, held the following at para 113 of his opinion:
“113… It is evident from the discussion made above that there is non-application of mind by the Health Ministry before framing the rules as to whether prescription of 85% pictorial and textual warning would result in violating the rights of the petitioners protected under Section 28 of the Trade Marks Act, 1999; whether the existing requirement laid down in the rules did not satisfy the test of being legible, prominent and conspicuous and that nothing less than 85% of coverage will amount to complying with the requirement of being legible, prominent and Conspicuous; whether prescription of 85% as compulsory display area for pictorial and textual health warnings uniformly with regard to cigarettes, beedis and chewing tobacco was essential despite the fact that the packages containing cigarettes, beedis and chewing tobacco are inherently different, more so because in the case of sachets containing chewing tobacco product, there are only two sides and hardly any space is left to exercise the rights available to the petitioners under the provisions of different enactments such as Legal Metrology Act, 2009, Trade Marks Act, 1999, and also as per Section 5(2) of COTPA…”
Similarly, the second judge, B.V. Nagarathna, held as follows:
“292. The aforesaid answers clearly establish that there was no scientific approach adopted while choosing 85% as the size of the warning. No material has been placed before this Court by the respondents to establish that if the size of the warning is 85%, it would have the effect of dissuading smokers or potential smokers from using/consuming tobacco products. Therefore, it becomes clear that neither was there any basis nor any application of mind to prescribe specified health warning to be 85% of the principal display area on both sides of the package. In the absence of there being any material, which has been considered by the Ministry of Health and Family Welfare, I find prescription of 85% of the principal display area of the package containing the specified warning is arbitrary and in violation of Article 14 of the Constitution apart from not being in consonance with the recommendation made by the Parliamentary Committee as well as the Expert Committee set up by the Ministry of Health and Family Welfare… Had any basis or rationale been established by the respondents that, if the size of the warning is 85%, and not any lesser (or more) would meet the object and purpose of the warning, it could have been sustained…”
On this basis, the judges unanimously declared the Amendment unconstitutional.
Supreme Court order and its discontents:
In its 8th January order, the Supreme Court (“the Court”) was faced with three alternatives:
• Reinstating the 85% prescription by staying the operation of the Karnataka High Court judgment; or
• Ordering that status quo be maintained and refusing to interfere with the impugned judgment until this matter is finally decided; or
• Adopting a middle path suggested by Kapil Sibal, by holding that, as an ad hoc measure, 50% of the surface area can be covered by the warning.
A bare perusal of the order makes it clear that the Court was unduly swayed by the Attorney General’s argument that a failure to reinstate the warning would gravely jeopardize the health of citizens and hence decided to opt for the first course of action – staying the judgment.
This is best evidenced by the following assertion by the Court:
“we are inclined to think that health of a citizen has primacy and he or she should be aware of that which can affect or deteriorate the condition of health. We may hasten to add that deterioration may be a milder word and, therefore, in all possibility the expression “destruction of health” is apposite.”
There are, I would respectfully submit, two basic flaws in the line of reasoning adopted by the Court in arriving at its conclusion.
First, the unstated premise underpinning the Court’s conclusion appears to be this: nothing short of the warning contemplated by the Amendment would safeguard the health of citizens. The question that the Court had to confront was not if there should be a health warning on Tobacco products. It was also not if such a warning should be prominently displayed. It was only this: does there exist a rational basis for the Government to increase the size of the warning from 40 to 85%? Instead of answering this question, the Court simply chose to transform this dispute into a question of safeguarding the right to health at all cost. As a result of this act of oversimplification, it was left with no choice but to reinstate the 85% rule.
Second, the Court wrongly assumes, as well settled principles, several claims that are deeply contested in the scientific community. For instance, it takes it as a given that chewing Tobacco causes cancer and necessarily results in destroying one’s health. In this regard, it would be apposite to quote an observation made by Justice Nagarathna in the High Court judgment:
“…there is no universal acceptance of the theory that use or consumption of tobacco and its products causes cancer. This Court is not expected to and, would not venture to give its verdict on that aspect of the matter one way or the other. But when there is no unanimity on the statements contained in the textual warnings, rather when the same is a subject of serious debate the world over, the Amendment Rules, 2014 could not have incorporated the same without there being any rationale behind it.”
As a result, I would submit that the Court’s decision to arrogate to itself the power to rule on a claim about which there is no consensus in the scientific community betrays a profound inability to fully grasp its own institutional limitations.
This being the case, one hopes that, when the Court finally rules in this matter, it will adopt a more balanced and enlightened approach and will not fall prey to the temptation of viewing this complicated dispute exclusively through the narrow prism of upholding the right to health.