High Court recommends that government implement plain packaging for cigarettes

In Love Care Foundation v Union of India (WP No 1078 (M/B) 2013, July 21 2014), the Allahabad High Court, following a writ petition filed by petitioner Love Care Foundation, has observed that plain packaging for cigarettes and other tobacco products sold in India would help reduce the attractiveness of such products, which, in turn, would safeguard the health of the youth. The court strongly recommended that the government of India consider the feasibility of implementing plain packaging for cigarettes and other tobacco products and take the necessary steps at the earliest opportunity.

The petitioner, a registered society, initially requested that the court order the respondents to ban the sale and distribution of cigarettes and other tobacco products on the open market, and implement plain packaging for cigarettes and other tobacco products by prohibiting the use of logos, colours, brand names or prominent information on packaging. However, during the course of the arguments, the petitioner’s counsel restricted the claim to the implementation of plain packaging, rather than the ban itself.

The primary argument of the petitioner was that attractive packaging for cigarettes and other tobacco products is a "pseudo mode of advertisement", which attracted the youth to smoking. To establish the case, reference was made to the statement of objects and reasons of the Cigarettes (Regulation of Production, Supply and Distribution) Act 1975 and the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill 2001, which highlights the ill-effects of smoking.

Reference was also made to Deora v Union of India ((2001) 8 SCC 765), in which the Supreme Court of India, considering the adverse effect of smoking on smokers and passive smokers, prohibited smoking in public places and issued directions to the Union of India, the state governments and the union territories of India to take effective steps to prohibit smoking in certain identified public places. Following this judgment, the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce Production, Supply and Distribution) Act 2003 and the Cigarettes and Other Tobacco Products (Packaging and Labelling) Rules 2008 were enacted, providing that a health warning regarding the ill-effects of tobacco use should be displayed (Rule 3(1) of the 2008 rules).

The petitioner contended that the very object of the aforementioned legislations was to prohibit the advertisement of cigarettes and smoking to the public. At present, cigarettes are sold to the public in attractive packs, and the adoption of plain packaging would reduce the attractiveness of cigarettes among the youth.

In its counter-affidavit, the first respondent, the Union of India, provided various statistics highlighting the ill-effects of consuming cigarettes and other tobacco products and the trends relating to the consumption of these products. The second respondent, the State of Uttar Pradesh, also filed a counter-affidavit stating that the provisions of the 2003 act and 2008 rules were being strictly implemented in the State of Uttar Pradesh by the state government. However, neither the Union of India nor the State of Uttar Pradesh raised any objection against the claim of the petitioner.  

The court considered the definition of plain packaging and how it would keep the Indian youth "away from the allurement of smoking". The court expressed the view that plain packaging would prevent packs of cigarettes and other tobacco products from being a marketing tool to advertise the brand's image and promote smoking "as a status symbol". The court also acknowledged that other countries, such as Australia and Brazil, have taken steps to implement plain packaging for cigarettes and other tobacco products for compelling reasons and have seen favourable results. Further, plain packaging has been recommended by the World Health Organisation Framework Convention on Tobacco Control as a component of marketing restrictions.

Based on the submissions made by the petitioner and the respondents, as well as studies conducted by other nations on the results of the adoption of plain packaging, the court was in favour of adopting a scheme implementing plain packaging for cigarettes and tobacco products in India. The court felt that this would be a long-term investment to safeguard the health of the youth, and would eradicate the way in which tobacco companies use deceptive marketing to draw children and the youth towards smoking. The mandatory health warning, coupled with plain packaging, will prevent consumers from being misled about the ill-effects of smoking (the schedule to the 2008 rules prescribes that the warning “smoking kills” should be displayed on smokable tobacco products, and that the warning "tobacco kills” should be displayed on smokeless or chewing tobacco products; further, the 2008 rules impose the presence of a pictorial representation of health warnings on smoking and chewing or smokeless forms of tobacco products, and prescribe their size, language and print). The court also observed that, at present, cigarettes in India are packed in colourful and attractive packets and are being displayed openly in shops. Such packaging draws the attention of the youth and acts as an incentive in their "immature" mind to start smoking such products. The effect of plain packaging would be that cigarette packets cannot carry brands, logos and colourful designs; the brand name and packets would be of a standard size, font and colour.

With the introduction of plain packaging in India, packs of cigarettes and other tobacco products would cease to be a marketing tool. Plain packaging would also be an effective means of spreading public health messages and discouraging tobacco consumption at no cost to the government.

The court, allowing the writ petition of the petitioner, stated that the scheme must be welcomed by all concerned and that the government of India must implement such a scheme at the earliest opportunity.

Aaron Kamath, Aarushi Jain and Gowree Gokhale, Nishith Desai Associates, Mumbai