Limitations of COTPA 2003, Highlights of Draft Bill 2015 and Its Advantages

Limitations of COTPA 2003, Highlights of Draft Bill 2015 and Its Advantages

Q. What are the limitations of COTPA 2003 [Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003], highlights of the COTPA Amendment Bill 2015 and advantages of the Draft Bill 2015?

A. Limitations of COTPA 2003

i. About COTPA 2003:

• Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution)Act enacted in 2003
• Act extends to all Indian states except J&K
• Act applicable to all products containing tobacco including (but not restricted to):

- Cigars
- Cigarettes
- Cheroots
- Bidis
- Gutka
- Pan Masala
- Khaini
- Mawa
- Mishri
- Snuff

• Key Provisions of Act

- Prohibition of smoking in public places
- Prohibition of direct/indirect advertisement sponsorship and promotion of tobacco products
- Prohibition of sale of tobacco products to underage persons/minors
- Prohibition of sale of tobacco products close to educational institutions
- Display of pictorial warnings on tobacco products
- Manner and size in which warnings to be made
- Language in which specified warning to be made
- Regulation of tar and nicotine contents of tobacco products

ii. Limitations

• Narrow Scope

- COTPA 2003 only discusses regulation of tobacco products
- No mention of any talk about banning products

• Limited Coverage

- Tobacco products like Gutka left out of ambit whereas only cigarettes covered
- Second hand smoke is harmful but ingestion of other tobacco products can influence users especially minors-act neglected this aspect

• Lack of focus

- Too much emphasis on regulation of smoking tobacco industry
- No attention given to enforcement in smokeless tobacco industry

• Poor Compliance

- Many states did not comply with orders
- Prohibitions were openly flouted and not penalised

• Lack of Effective Implementation

- Poor enforcement of laws as strong tobacco lobby in control
- Implementation was a state subject: enforcement was therefore not strict
- Laxity in enforcement

• Neglected the Youth

- Around 5500 youngsters in India are initiated into tobacco everyday, according to estimates by NGOs
- Tobacco contains nicotine which is as addictive as heroin, cocaine and alcohol-youngsters want to experiment
- Law needed to be implemented and enforced to prevent youths from experimenting with tobacco

• No Safeguard Against Lobbying

- Lobbying by tobacco industry led to revoking of pictorial warnings at one point in the implementation

• Litigation to Contest the Act

- Main provisions of the act were contested through PILs and litigations that left loopholes in the Act

• Tobacco Marketing Continued

- The marketing of tobacco products continued untouched
- Grave social, economic, health and environment related consequences of tobacco marketing were ignored

• Many Loopholes

- While COTPA 2003 was a well drafted legislation, many areas were not covered
- Faulty taxation policy that implemented higher taxes on only cigarettes; other tobacco products should also have been included
- Lack of uniformity in guidelines and restrictions across different states and union territories

• Other Factors

- Many citizens were unaware of the provisions of the act
- There is cultural acceptance of tobacco use
- Lack of political will
- Corruption
- Less priority for tobacco control
- Lack of sensitisation and awareness
- Lack of responsibility on part of judiciary to quash pro-tobacco litigation
- Ban on sale of tobacco within 100 yards of educational institutions only came into force in 2009
- Use of litigation by tobacco companies to bypass pictorial health warnings

B. Highlights of COTPA Amendment Bill 2015

About COTPA Amendment Bill

• Placed in public domain for suggestions on 13th January 2015
• Comments to be made regarding the bill by 15th February 2015

i. Targeting Indirect Advertising

• Bill proposes prohibition on use or brand of tobacco product for:

- Marketing
- Promoting
- Advertising other Goods, Services, Events

• Brand name of tobacco product to market/advertise non-tobacco product is case of brand sharing; prohibited by WHO Framework Convention on Tobacco Control/FCTC

• Ban on tobacco products advertising was circumvented in the past using indirect advertising

ii. Removal of Ambiguity Around POS Display

• Draft bill removes ambiguity around POS or point of sale through ban on showcase of tobacco products inside/at start of ship
• Tobacco products out of public view;in accordance with FCTC recommendation
• Check against impulse buying
• However, implementation especially in small shops a concern

iii. Banning Sale of Tobacco Products to Minors

• Enforcement can be a problem
• Nearly 27% of the tobacco consumption in India for 15-24 year olds
• As ineffective as banning sale of cigarettes or bidis in loose form
• However, ban will be imposed on sale of tobacco products to those below 21 years of age
• Proposed age limit will be revised to 23 and 25 respectively in dual phases following evaluation of minimum age raise.


iv. Pictorial Warnings on Tobacco Products

• Bidi smokers will be deterred; 85% smokers in India use bidis
• Those unable to read may understand pictorial warnings and be deterred by these

v. Scrapping of Designated Smoking Areas: More Restrictions

• Hotels, restaurants and airports will be no-smoking zones now
• Smoking only permitted in international airports
• Protection of people from second hand smoke to a greater degree

vi. Greater Penalties

• Penalty for smoking in restricted areas raised to INR 1000
• Those producing tobacco products in the absence of specified warning will be liable for imprisonment to 2 years and fine of INR 50,000 or both for two years
• For second/subsequent offences, imprisonment can be 5 years with fine of INR 1 lakh
• Selling products sans warning will incur fine of INR 10,000 or jail term of 1 year or both; later offences will draw fine of INR 25,000 plus jail term of 2 years
• Punishment for failure to provide specified warning and constituents as well as emissions on package and label of cigarette or any other tobacco product
• Offences under the Act shall be bailable and offences punished under certain sections shall be cognizable
• Provisions of proposed act has overarching impact on other tobacco legislation

vii. Ban on Spitting of Tobacco Products

• Good move as this is one among leading causes of spread of diseases like H1N1, Avian Flu and TB.

viii. Ban on Sale of Cigarettes and Tobacco Products Near Educational Institutions

• The ban on sale of cigarettes and tobacco products to be extended from 100 yard to 100 metres of the educational institution

ix. Ban on Sale of Loose/Single Cigarette Sticks

• Tobacco products in loose form and small pouches more cheaper and convenient for youth to purchase
• Therefore, ban on sale of loose tobacco products can serve to counter pack warning redundancy

x. Ban on Employing Under 18 Persons in Tobacco Industry

• Person under 18 years of age cannot be engaged and/or used for:
- cultivation
- processing
- sale of tobacco or tobacco products

xi. Expediency of Control by Union

• Declaration of expediency of control by Union
• Protection of public health policies for tobacco control

xii. Information Disclosure Regarding Constituents

• Disclosure of information regarding constituents and emissions on cigarette or tobacco product by:

- Producer
- Supplier
- Distributor
- Seller

• Substitution of nicotine and tar with constituents and emissions

xiii. Constitution of Special Courts for trial of offences under the proposed Act

xiv. Constitution of National Tobacco Control Organisation

• Implementing provisions and functions for tobacco control
• Monitoring the provisions as well

C. Advantages of COTPA Amendment Bill 2015

• COTPA Amendment Bill 2015 has aimed to stop the growth of tobacco use in a way that improves on COTPA 2003:
- Loose tobacco products are more popular so banning their sale is effective

• Ban on Indirect Advertising

- Will prevent companies from bypassing tobacco control legislation
- This includes foreign companies
- In accordance with FCTC and WHO guidelines

• Passive Smokers Will Be Protected

- Selling of tobacco products near educational institutions being banned,
- Smoking now restricted to only international airports
- Second hand smoke as dangerous so steps a positive move

• Phased Restrictions

- Phases in which age limit for non sale of tobacco products raised positive
- Will help industry and workers to adjust to fall ind demands too
- Prepares the industry and the consumers for an eventual complete ban

• Catching Companies Which Misuse CSR

- Tobacco products are often indirectly promoted through CSR initiatives
- Indirect promotion now prevented

• Comprehensive Awareness

- Use of pictorial warnings and specified warnings as well as warnings for :
- Raising awareness in low income communities
- Preventing youth from experimenting with tobacco products
- Encouraging awareness of harmful impact of tobacco use
- Combating the culture of hookah bars in urban areas and bidi use in rural areas

Conclusion

COTPA Amendment Bill 2015 is a vast improvement over COTPA 2003 in terms of scope, coverage, focus, commitment and comprehensiveness. Properly enforced, COTPA Amendment 2015 has the potential to loosen the deadly grip of tobacco products in India.