Starting 01 September 2019, a new warning message will be displayed on tobacco products like cigarette packets. But what about the law that governs the rules about warnings, advertisement of tobacco products? Here is an explainer of the COTPA act.

The World Health Organisation (WHO) passed resolutions in 1986 & 1990, urging the member states to take action for ensuring that non-smokers are protected from involuntary exposure to tobacco smoke. The resolutions especially talk of pregnant women, children and others who may fall into the risk group & also to prevent children and youngsters from getting addicted to tobacco. Following these resolutions, the Government of India introduced the Cigarettes-and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act in 2003. Abbreviated as COTPA, the act has provisions for restricting sale of tobacco products like banning sale near educational institutions etc. Among other things, the act places restrictions on smoking, sale, promotion/advertising, packaging of tobacco products. Here is a detailed explainer of the important provisions of the act.

Restrictions on
Smoking and Sale of Tobacco products

As per the COTPA act and subsequent rules made under this act, smoking in public places is prohibited. In addition, Hotels which have more than 30 rooms or a restaurant which has a seating capacity of at least 30 and in airports, provisions for separate smoking space have to be made.

Cigarettes and other tobacco products should not be sold/offered to
any one below the age of eighteen years. Sale of such products within 100 yards
radius of any educational
institution
is also an offence. Giving permission to
perform the above acts is also considered an offence under this act.

The penalty for the violation of the above mentioned acts can go up
to Rs. 200. The offences that fall under this category are compoundable and
will be tried as per the procedure provided for summary trials in the Code of
Criminal Procedure, 1973. (CrPC)

COTPA act_No Smoking Warning

The Central or State government by notification in the official gazette can authorise one or more persons (who will be referred to as Public Servant as per IPC section 21) who are competent to act under the act. The accused can be detained by the competent authority if there is reasonable ground to believe that an offence has been committed. The detention will not take place if the accused provides name and address and if he/she satisfies the competent authority that they will answer any summons or proceedings against them.

The detained person will be presented before the Magistrate to be dealt with under the law. If an institution violates these sections, then it is also liable to pay a maximum penalty of Rs. 200.

Restrictions on Promotion/Advertisement
of cigarettes and tobacco products

None of those who are involved in production, supply or distribution
is allowed to promote tobacco or tobacco products. The act also prohibits media
from advertising tobacco and tobacco products and also disallows people from
taking part in advertisements which may directly or indirectly promote the use
of tobacco.

Further, nobody is allowed to display advertisements, distribute
pamphlets or documents or sell videos/tapes that contain promotional videos of
tobacco products or cigarettes. Those who perform the above acts or even
authorises/permits any of these will be held equally responsible for promotion
of cigarettes and tobacco which is a punishable offence. 

Erection of posters or hoardings visible to public is also treated an offence.  Advertising is permitted only on the packets of tobacco products and in the entrance of shops/ warehouses where such products are sold or distributed. Endorsement of cigarettes or other tobacco products or promoting its use through gifts, prizes or any similar form is also prohibited.

If any person is convicted for advertising these products for the
first time, the person is liable for imprisonment up to two years and/or a
penalty of Rs.1000. Subsequent conviction results in up to five year
imprisonment and/or fine which may be extended up to Rs.5000. In case a person
has contravened the provisions under this section, the advertisement and relevant
materials may be confiscated by the government and the material will be
disposed as per the act.

Regulations on
Packaging of Cigarettes & Tobacco products

It is mandatory for every packet of cigarette or tobacco product to
contain the specified warning including skull and crossbones along with the
other prescribed warning signs. Unless and until the warning is indicated, no
one is allowed to distribute or trade or import such cigarettes and tobacco
products. The specified warning should be displayed on at least one of the
largest panels of the package in which these products are packed. Every packet
of cigarette and tobacco product must contain a label indicating the details of
the nicotine and tar contents along with the maximum permissible limits for
each cigarette or packet of the product.

The Health Ministry has notified that from 01 September 2019, a new image with the caption ‘TOBACCO CAUSES PAINFUL DEATH’ in white font on red background and the words, ‘QUIT TODAY CALL 1800 11 2356’ in white font on black background should be added in the package of tobacco products.

COTPA act_Attention Warning

The content of nicotine and tar should not exceed the permitted limit. The warning should be such that it is legible and prominent. The size and colour should be clearly visible and in contrast to the background colour, other fonts and colours used on the package. The warning on each of the package should be such that before opening the packet, it should be clearly visible to the consumer. English or/and Indian languages shall be used for the warning. If any foreign language is used, the specified warning should be given in English as well. Statements which are not consistent with the specified warning or belittles the warning should be refrained from using. The height of each figure and letter of the warning should strictly be of the prescribed size as mentioned under rules of this act.

Stringent punishment is prescribed for the producer/manufacturer who
does not adhere to the warning rules and also does not mention the details of
contents mentioned.  For the first
conviction, he/she has to face imprisonment up to two years and/or a fine up to
Rs.5000. For subsequent conviction, fine up to Rs.10,000 and imprisonment up to
five years is prescribed in the act.  For
selling or distribution of cigarettes or tobacco products without warning and
content, punishment for first conviction is imprisonment up to one year and/or
fine up to Rs.1000. Subsequent conviction will result in imprisonment up to two
years and/or fine up to Rs.3000.

Authority to
search and seize tobacco products

Any police officer at least of the rank of Sub Inspector or any
officer of State Food and Drug Administration or any other officer holding an
equivalent rank authorised by either the Central or State government is
authorized under the act to carry out search & seize operations.

If the authorized authority has any reason to suspect that any
provision of this act has been or is being breached, he/she may enter and
search any building, office, factory, business premises or any other place
where any trade related to cigarettes or tobacco products takes place or where
the advertisement of the product is made or being made, in the prescribed
manner at a reasonable time.  The
provisions of the Code of Criminal Procedure of 1973 are applicable to any
search or seizure made under this act.

The aforementioned personnel also has the power to seize the
packets or advertisement materials in the prescribed manner if he/she has any
reason to believe that the rules of the act have been violated with respected
to package or advertisement of the products. The officer can retain the seized material
only for a maximum period of ninety days unless the District court under whose
jurisdiction the seizure took place approves.

Confiscation of
tobacco products and procedure to be followed

Any cigarette or tobacco packet or its advertisement, if found to
have violated the rules of this act, is liable to be confiscated. The court is
allowed to give the owner of the confiscated products the option to pay in lieu
of the confiscation, a cost which should be equal to the cost of the
confiscated products. Upon payment of the amount as per the court’s order, the
seized products will be returned to the owner provided that before distributing
it, the owner must ensure that the specified warning is mentioned along with
the details of nicotine and tar content. Payment of ordered amount or
confiscation of products does not prevent the offender from being subject to
the punishment he/she is liable under this act.  A written notice has to be given to the person
from whom these items have been confiscated before any order is issued. In case
such a notice is not issued within 90 days from the date of seizing, the
packages should be returned to the person from whom it was seized.

What if the
violations are by a company?

Like in the case of other offences, the accused shall have the
option make an appeal against the decision of a court. The appellant cannot go
for another appeal against the order of the court of appeal. All the offences
under this Act are bailable.

In case any of the violations are been made by a company, then
every person who was in charge of the company’s business and was responsible to
the company for the conduct of business as well as the company will be
considered guilty for the offence unless anyone involved provides evidence that
they weren’t aware of the act or tried to stop it. If the offence committed is
through the consent of or carelessness of the director or any other officer,
then proceedings and punishments will be dealt with accordingly.

Power of the
Central Government to make rules

The central government has the authority to add any tobacco product
under this act, provided this should be notified in the official gazette three
months in advance. Once added, the product will be legally bound by this act. In
order to test the tar and nicotine contents of the tobacco product, the Central
Government is allowed to grant recognition to testing laboratories by notifying
in the official gazette. Central government also has the authority to alter the
form and manner of warning on tobacco products, specify the maximum permissible
limit of nicotine and tar content and the height of letter and figures, the
manner in which search and seizure will be conducted, manner of preparation of
list and delivery. The act is not applicable to those tobacco products which
are being exported provided the rules in those specific countries are followed.
 

Featured Image: COTPA act

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