While few would disagree with the broad proposition that the commercial interest of profit-driven businesses has to be balanced with the interest of the public, the precise manner in which such a balance has to be struck continues to remain a deeply contested issue.
One key arena in which efforts to achieve this balance have received sustained attention on this Blog relates to the imposition of plain packaging restrictions and health warnings on Tobacco products. Simply put, such restrictions curb the commercial freedom of Tobacco manufacturers by proscribing any form of branding to increase the commercial appeal of their product and obligate them to outline, in a prominent and conspicuous fashion, the deleterious ramifications likely to flow from the consumption of their products. While as a conceptual matter plain packaging obligations and the obligation to outline health warnings may appear distinct and unconnected, they are in fact very similar, inasmuch as the central object underpinning these obligations is to disincentivize the sale of these products.
Readers interested in learning more about this issue should read Vasundhara’s article
delving into the efficacy of plain packaging laws and capturing prominent plain packaging disputes impacting India and Kiran’s exhaustive analysis
of the forces informing the debate on the imposition of these restrictions. This issue has also received some legislative (see here) and judicial (see here) attention in India. (Long post ahead!)
In a widely reported order issued last week, the Supreme Court stayed a Karnataka High Court’s December 2017 judgment which had struck down a rule to the effect that 85% of the principal display area of any package containing a Tobacco product must set forth a prescribed health warning about the consequences of consuming Tobacco. In this article, I will try to unpack the reasons that resulted in the Karnataka High Court striking down this prescription and outline the flaws in the Supreme Court’s decision to stay this judgment. Before doing so, however, it would be useful to outline a few essential facts.
In 2008, pursuant to the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, the Ministry of Health and Family Welfare framed the Cigarettes and other Tobacco Products (Packaging and Labelling) Rules. Broadly speaking, these rules lay down the parameters governing the nature and extent of the health warnings that have to be displayed on Tobacco products, prohibit the use of any message on the Tobacco product that promotes its usage and lay down the principles in accordance with which these warnings have to be altered on regular intervals. These rules were amended in 2014 (hereinafter “the Amendment”).
While a number of cosmetic alterations were effectuated by the Amendment, the one that is significant for present purposes is this: the surface area that the health warning can cover was increased from 40% to 85% of the principal display area of the package.