Shri Pradeep Kumar Pal,
Under Secretary (Tobacco Control),
Department of Health and Family Welfare,
Nirman Bhawan, New Delhi-110011.
Subject: Expressing support to strengthen the Indian tobacco control law through the Cigarettes and Other Tobacco Products Act, Amendment Bill, 2020 (Ref: F. No. P.16011/04/2020 –TC (Part).
We would like to congratulate the Ministry of Health and Family Welfare, Government of India (MoHFW) for bringing the COTPA Amendment Bill, 2020 in the public domain. We all are well aware that the tobacco industry markets its lethal products with a specific focus on luring children and youth into tobacco use. The proposed amendments to the Indian tobacco control law are critical to prevent youth access to tobacco and safeguard their health from the serious health hazards of not only direct tobacco use (smoking and smokeless tobacco use) but also from passive smoking through exposure to Second Hand Smoke, especially in the restaurants, hotels and airports with designated smoking rooms and designated smoking areas.
In the last 17 years since the law was first introduced in 2003, the provisions of the law have been used in countering the tobacco industry’s tactics to advertise and promote tobacco use in India. However, in spite of the Government’s best efforts to effectively enforce the law and our resolve to ensure that violations are adequately reported, the industry has been able to target, especially children, through their indirect promotion tactics. In view of the increasing tobacco industry interference and circumvention of the law, there is an urgent need to further strengthen the law in order to make it water-tight to prevent the tobacco industry from exploiting the existing gaps in the law. The proposed Amendment to COTPA presents a golden opportunity to ensure that the law is made stronger and effective.
Taking this opportunity, we, on behalf of the children and youth of this country, request the MoHFW to ensure that the following amended provisions are strengthened to safeguard the present and future generations of India from the massive burden of tobacco.
Preamble: Preamble should make reference to the UNSDG-3 and the targets thereunder to reduce the NCD burden by 2030 and the need to fully implement the WHO FCTC to achieve the set goals thereunder.
Section 2: The scope of the section be expanded to afford Union protection for the development and implementation of public health policies on tobacco control from the commercial and vested interests of the tobacco industry.
Section 3: Definition of tobacco products should be made limited to include only products made of tobacco products leaf and no other food ingredient to be added to any tobacco products to make the Act in line with the provisions of Food Safety and Standards Act, 2006. In addition, remove all tobacco products listed under the Schedule-I which include or have food ingredients i.e. pan masala or chewing material with tobacco, gutkha, and tooth powder with tobacco (items 8-10 in the Schedule).
Section 4: Smoking as well as tobacco use should be completely prohibited in public places. Designated smoking areas in public places like airports, hotels should not be permitted, since these give an opportunity to smokers to smoke in public places and often leads to violations and exposure to secondhand smoke. The ambit of the provisions should be considered for expansion to ban use of all kinds of tobacco products in public places.
Section 5: All existing forms of tobacco advertising should be completely prohibited. We appreciate the decision to remove the proviso under Section 5 that permitted advertising on and in the tobacco pack and at points of sale. All forms of surrogate advertising, brand extension and stretching should also be prohibited. Advertisement of any tobacco trademark or tobacco brand should also be prohibited and the proposed amendment to Section 5(1) should be accordingly amended to meet the WHO FCTC Article 13 guidelines.
Further the section should add provision for express ban on corporate social responsibility activities by any tobacco company using its corporate identity including tobacco and non-tobacco trademark or brand or name etc. Amend the Company Act 2013 provision to require direct appropriation of the 2% profit of a tobacco company to a tobacco control fund under the MoHFW., The prohibition on tobacco promotion be extended to outlaw participation, support, endorsement or acceptance of any partnerships, agreements, proposals, contributions, incentives, benefits, privileges, investments or involvement with the aim, effect or likely effect of promoting a tobacco product or tobacco use directly or indirectly. The section also needs to require the tobacco industry to report its annual expenditure on tobacco advertising, promotion, including lobbying and influences.
Section 6: The amendments should stipulate to make the provision akin to that under the Juvenile Justice Act 2015 and prohibit not only sale but ‘giving’ of tobacco products to a minor in whatsoever way e.g. free gift, sample of research, survey, etc.
Section 7: Keeping with removal of the proviso under Section 5(2), plain packaging of tobacco products should be introduced under the proposed amendment Bill as this tobacco control policy initiative is already showing success in countries like Australia. Consider adding provision whereby “no person engaged in, or purported to be engaged in the production, supply, distribution and sale of cigarettes or any other tobacco products shall mention or use any ingredients or additives or flavorings in any form that can impart, intensify, modify or enhance the flavor, taste, palatability or increase dependence of cigarettes or any other tobacco products.”
Section 10A: Include ban on sale of duty-free export and import of tobacco to comply with WHO FCTC Protocol on Elimination of Illicit Trade in Tobacco Products and require Exclusive vendor licensing not only under existing laws but ‘as may be prescribed’ under COTPA as well.
Section 29 should be broadened to ensure that entities formulating, implementing, public health policies on tobacco control do not interact with persons or entities promoting tobacco products or tobacco use except where it is strictly necessary for regulatory purposes. The regulatory interactions need to be transparent.
Section 31: Rulemaking power should be expanded to allow MoHFW to prescribe rules to meet the objectives of the Act.
Ban on Hookah Bars: Keeping with the state amendments to COTPA in Gujarat, Maharashtra, Rajasthan and Punjab Section 4A may be added to ban hookah bars across the country.
Prohibition on tobacco industry interference: In line with the WHO FCTC Article 5.3 and the guidelines for its implementation, a provision should be added to restrict tobacco industry interference in the development and implementation of any tobacco control effort and imitative in the country. A code of conduct for all government stakeholders should be prescribed as adopted by the MoHFW.
In light of the above observations and suggestions, we would like to submit that the Bill be modified in accordance with the international best practices and in conformity with the available research and scientific evidence. We sincerely hope that this representation will be considered favourably by MoHFW. We are hopeful that the COTPA Amendment Bill will soon transform into a stronger and effective law – which will safeguard the people of India from the scourge of tobacco addiction. We pledge our wholehearted support for adoption of a stronger and effective Bill.