Tobacco products to carry pictorial warning on 85% of packaging space: SC

The Tabocco Institute of India and Ors. vs. Union of India and Ors. (15.12.2017 - KARHC):
MANU/KA/3117/2017

HELD

(e) The Act is not challenged. Therefore, it is not open to petitioners to say that their right under
Article 19(1)(a) is affected by the 2008 (Unamended) Rules framed requiring them to carry specified
warnings on the ground that public health does not fall in any of the 8 heads based on which
restriction can be imposed. Restriction on the right is imposed by the Statute itself. A reading of
Section 7 of COTPA makes it clear that without printing and carrying the specified warning on every
package, no person can carry on trade or commerce in cigarettes and any other tobacco products.

[125]

ARGUMENT

115. The other aspect on which considerable arguments have been advanced have to be noticed.
Learned Senior counsel Mr. Sajan Poovayya has contended that Rule 3(1)(b) of the 2014 Labeling
Amendment Rules read with paragraph 1, 2 & 3(2) of the Schedule thereto introducing 85% regime
violates Article 19(1)(a) of the Constitution of India. It is urged by him that 85% regime violates
manufacturers fundamental rights for the following reasons:

(i) It compels the manufacturer to state an unsubstantiated statement - "Smoking Causes Throat
Cancer" as a textual warning occupying 25% of the front and back panel of the cigarette packages;

(ii) It compels the manufacturer to print gruesome, repulsive, misleading and untruthful images
depicting a hole in a person's throat which appears to be a "tracheotomy hole" and a person's neck
with diseased, infected and purulent growths which appears to be an "ulcerous goiter" as pictorial
warnings, occupying 60% of the front and back panel of the cigarette packages, and inaccurately
Connects these images to the abovementioned unsubstantiated statements;

(iii) It is not a reasonable restriction in "the interests of sovereignty and integrity of India", "the
security of the State", "friendly relations with foreign States", "public order", "decency or morality",
or "in relation to contempt of court, defamation or incitement to an offence" under Article 19(2) of the
Constitution;

(iv) It is egregious excessive and unreasonable, both in size and content;

(v) It abrogates the manufacturers' right to commercial speech under Article 19(1)(a).
116. Mr. Sajan Poovayya also points out that 85% regime introduced by 2014 Labeling Amendment
Rules infringes the manufacturers right against compelled speech which is protected under Article
19(1)(a). He points out that manufacturer has a right not to be compelled to disseminate factually
inaccurate, untruthful, distorted and controversial messages against its products. According to him, as
per Section 7(1) of the 2003 Act, Central Government can prescribe warnings to appear on tobacco
product packages, but these warnings being compelled speech have to be necessarily based on facts
and be truthful and not misleading, otherwise they cannot pass the test of being reasonable restrictions
under Article 19(2). He has invited the attention of the Court to the judgment of the Apex Court in the
case of UNION OF INDIA VS. MOTION PICTURES ASSOCIATION - MANU/SC/0404/1999: AIR
1999 SC 2334, to urge that a 'must carry' provision furthers informed decision making which is the
essence of right to free speech and expression. Therefore, the same will not amount to any violation of
the fundamental right of speech and expression. However, if such a provision compels a person to
carry out propaganda or project a partisan or distorted point of view, contrary to his wish, it may
amount to a restraint on his freedom of speech and expression. It is essentially urged by the learned
Counsel in this connection that unlike the statement such as 'cigarette smoking is injurious to health',
the pictorial warnings consisting of gruesome images of a hole in person's throat and infected growths
on a person's neck coupled with textual warning stating 'smoking causes throat cancer', do not convey
truthful and reliable information to enable the consumer to make an informed decision. According to
him, the warnings contained in the impugned amendment constitute to form a coercion as their aim is
to cause revulsion, trauma and guilt in the minds of consumer of tobacco products through untrue and
excessive statements and images. It is emphatically urged by him that the Health Ministry has neither
pleaded nor produced any material to establish the truthfulness of the warnings and it is not aware
whether the warnings are factual and truthful. Mr. Poovayya invites the attention of the Court to the
reply of the Health Ministry to an RTI application filed by the petitioner in W.P. No. 34184/2016,
wherein it is stated that no specific information was available with the Health Ministry as to whether
the images were the real pictures of cancer patients suffering from cancer caused by tobacco.

The Tabocco Institute of India and Ors. vs. Union of India and Ors. (15.12.2017 - KARHC):
MANU/KA/3117/2017