Smoking part of life since dawn of civilisation; we cannot prevent it: Kerala High Court

Nicotine and tar content labels on cigarette packets may go only so far to prevent smoking, the Kerala High Court observed on Thursday. [Sangeerthana M v. Union of India & Ors]

A Division Bench of Chief Justice Soumen Sen and Justice Syam Kumar VM observed that smokers do not choose cigarettes based on nicotine or tar content, but clear labelling could aid in them making a conscious decision.

"Smokers don't look at how much tar or nicotine is there in cigarettes. They go by the brand. People who smoke Marlboro or Gold Flake Kings will not look at this," Chief Justice Sen orally remarked.

The Chief Justice went on to say that banning smoking outright has never worked as smoking has been a part of society in some form or the other since time immemorial.

"From the dawn of civilisation till date, they have not been able to [prevent smoking]. Smoking has been part of life and still is. It is for the person to decide whether to smoke or not . There can be no direction to not smoke," Chief Justice Sen said.

The Court made these observations while hearing a petition seeking removal of cigarette advertisements and implementation of mandatory age verification while selling cigarettes and tobacco products. The petition also sought directions to State and Central authorities to strictly prohibit smoking in public spaces.

The petition further contended that there are various violations of the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) and the associated Rules.

It specifically pointed out that there is widespread violation of Section 7(5) of COTPA which mandates that no person shall, directly or indirectly, produce, supply or distribute cigarettes or other tobacco products unless every packet indicates the nicotine and tar contents of each cigarette.

At an earlier hearing, the Court had directed the Central government to file a report on compliance with Section 7(5) of COTPA.

However, the Centre informed the Court today that the said provision has not yet been notified.

The State government submitted that it has taken steps to to ensure that cigarette packets are not being sold without disclosing nicotine and tar content. It was also submitted that unless the Centre notifies Section 7(5), it will not be possible for State authorities to seize or confiscate cigarettes or tobacco products that don't specify nicotine and tar content.

The Court today observed that its previous orders were issued under the premise that Section 7(5) had been notified.

"However, with regard to the fact that the same subsection has not yet been notified, we cannot direct the manufacturing companies to change its labels to add nicotine and tar contents," the Court said.

The Court also directed the State enforcement authorities to be vigilant and rigorous with enforcement of the provisisons of COTPA and the Rules framed under the Act.

It noted that there seemed to be a lack of uniformity with some cigarette packets displaying nicotine and tar content and others not. It, therefore, directed the Union Ministry of Health and Family Welfare to consider whether a rule should be brought in to ensure that there are clear labels on all cigarette packets.

"The Ministry of Health and Family Welfare may consider whether the label of cigarette packets may contain nicotine and tar contents to enable smokers to take an informed decision", the Court said in the order passed today.

The petitioner today also brought to the notice of the Court that some cigarette packets manufactured by ITC seem to contain labels with words like 'honeydew', 'smooth like never before', and 'more flavours, more experiences'. The petitioner argued that this maybe be a violation of the statutory rules.

The Court directed ITC and Gold Flake to respond to the allegations and posted the matter for further hearing after two months.

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The petitioner, Sangeerthana M, appeared in person.

Deputy Solicitor General of India OM Shalina appeared for the Central government.

Senior Government Pleader Vinitha B appeared for the State.