A presentation on how legislation on tobacco control is to be created by Hemant Goswami (Burning Brain Society)

1. Comprehensive Tobacco
Control Legislation
: key features :
characteristics - structures

2. Position of Tobacco in
Constitutional Scheme of
things
Question: Is there a right to consume tobacco
Consider the fact:
Is tobacco a food?
Is tobacco a useful drug?
Is tobacco a nutritious concoction?
Is tobacco in any way useful to a human being
Is tobacco a neutral consumer product?
Why is it marketed/sold/traded?
So can someone claim it as a right to consume tobacco –
Technically NO
Question: Would restricting use of tobacco violate
right of life or liberty or even trading?
Courts have held otherwise – There is no
constitutional/fundamental right to consume tobacco –
restricting tobacco does not violates anyone’s right

3. Key Ingredients of a
Law”
“Good Law”
1. Properly Drafted legislation
2. Balance between primary legislation and
delegated legislation
3. Good CONNECT between the legislation, the
Constitution and other Laws
4. Ease and clarity of enforcement of the legislation
5. Simple and Fast Procedure of Prosecution

4. Challenges in Tobacco
Control Legislations
Interference by “Tobacco Industry”
Campaign of Misinformation & Misguidance
Perception of Tobacco as a “Economic Contributor”
by a section of government
Dilution of legislation at drafting stage itself (The
standard tobacco industry strategy)
Low Priority Legislation
Lack of Capacity

5. Example of challenges within
DEPARTMENT OF COMMERCE
RAJYA SABHA
STARRED QUESTION NO 390
ANSWERED ON 23.08.2006
UNFAIR TREATMENT TO VIRGINIA TOBACCO AT WTO NEGOTIATIONS .
390. SHRI V. HANUMANTHA RAO
Will the Minister of COMMERCE AND INDUSTRY be pleased to state:-
(a) whether Government have noted that cash crops like Virginia tobacco are not receiving fair treatment during WTO negotiations;
(b) whether it is also a fact that Free Trade Agreements between India and neighbouring countries is harming Indian tobacco farmers’ interest;
(c) in what way will Government bring about equity and fairness in international trade policies to help farmers of Andhra Pradesh and Karnataka; and
(d) the steps proposed to reduce such aspects of FTAs which harm Indian farmers?
ANSWER
MINISTER OF COMMERCE AND INDUSTRY
( SHRI KAMAL NATH )
(a): In the WTO negotiations, steps are being taken to address the structural distortions in agricultural trade caused due to subsidization and protection of
agricultural products, including cash crops like Virginia tobacco.
(b) to (d): Under India’s Regional Trade Arrangements (RTAs), tariff concessions on imports into India, with duty free access subject to fulfillment of value
addition criteria, on tobacco have been offered only under the Indo-Sri Lanka Free Trade Agreement (FTA). Sri Lanka has retained tobacco in its negative list of
imports. The Government has requested Sri Lanka to provide parity with India’s tariff concessions on tobacco. Matters relating to exports to India by Sri Lanka
of cigarettes manufactured with imported tobacco have also already been raised by the Government with Sri Lanka under the review of the Indo-Sri Lanka FTA.
…………………..etc ……………………….

6. Key Ingredients – Well
Defined Objectives
IMPORTANCE OF THE PREAMBLE:-
Principles and Purpose
Most laws contain a general statement of the purpose and/or principles of
the law.
The purpose of a law provides the framework within which the law will be
implemented and interpreted.
In the context of a legal challenge to a law or its regulations, this
framework can play a critical role. Therefore, words should be carefully
chosen and should clearly and accurately reflect the scope of issues that
the government intends to regulate.
Good Example: FCTC – TC Legislation of India

7. From the FCTC Preamble
Preamble of FCTC
The Parties to this Convention,
Determined to give priority to their right to protect public health,
Recognizing that the spread of the tobacco epidemic is a global problem with
serious consequences for public health that calls for the widest possible
international cooperation and the participation of all countries in an effective,
appropriate and comprehensive international response,
Reflecting the concern of the international community about the devastating
worldwide health, social, economic and environmental consequences of tobacco
consumption and exposure to tobacco smoke,
Seriously concerned about the increase in the worldwide consumption and
production of cigarettes and other tobacco products, particularly in developing
countries, as well as about the burden this places on families, on the poor, and on
national health systems,
…………….etc…………….

8. The elements of comprehensive
TC legislation
Institutions and mechanisms. Legislation should create, empower
and fund an authority to implement and direct the legislation.
Public education. Large public education campaigns are important
parts of changing public attitudes and beliefs.
Advertising, promotion and sponsorship. A comprehensive ban on
tobacco advertising, promotion and sponsorship is a centrepiece of an
effective tobacco control programme.
Taxes. Tax increases have been proven to be one of the most
effective means of reducing tobacco consumption, especially among
young people.
Second-hand smoke. Eliminating smoking in workplaces and public
places protects non-smokers from the hazards of exposure to smoke,
discourages smoking initiation and promotes cessation.

9. The elements of comprehensive
TC legislation
Labelling and packaging. Large, clear health warnings and informational
messages, using rotating messages developed by national authorities,
should be required on tobacco packaging, and tobacco products should not
be promoted using misleading terms.
Product regulation. Regulatory authority should be given to a specialized
agency, to address such issues as ingredient disclosure, permissibility of
harmful constituents, additive safety, and tar and nicotine yields.
Tobacco sales. Legislation should prohibit the sale of tobacco to and by the
minors.
Smuggling. To combat illicit trade, comprehensive legislation should include
measures such as requirements for package markings or creation of a
regime for tracking and tracing products through the distribution chain.
Other issues. Comprehensive legislation may also include provisions to
address smoking cessation, create school-based programmes, modify
agricultural policies or address issues of legal liability.

10. Key Ingredients - Clarity
Minimizing Ambiguity –
Example (Bad): Definition of Public Places in India
Section 2(l) “public place” means any place to which the public
have access, whether as of right or not, and includes auditorium,
hospital buildings, railway waiting room, amusement centres,
restaurants, public offices, court buildings, educational
institutions, libraries, public conveyances and the like which are
visited by general public but does not include any open space;
Rule 2(c) “open space” mentioned in Section 3(1) of the Act shall
not include any places visited by the public such as open
auditorium, stadium, railway station, bus stop and such other
places;

11. Key Ingredients - Clarity
Clarity in description of violations
Proper and well defined action for each violation
– BAD Example:
Section 22. Whoever contravenes the provision of section 5 shall, on
conviction, be punishable—
(a) in the case of first conviction, with imprisonment for a term which may
extend to two years or with fine which may extend to one thousand rupees or
with both, and
(b) in the case of second or subsequent conviction with imprisonment for a
term which may extend to five years and with fine which may extend to five
thousand rupees.
Clear guidelines w.r.t. sequence of legal procedures to be followed
SYSTEM OF INCORPORATING DELEGATED LEGISLATION WITH
SAME KIND OF OBJECTIVITY

12. Key Ingredients - Simplicity
KISS
Keep It Short & Simple

13. Key Ingredients - Simplicity
Less is More
Simple structures and standards usually lead to
fewer problems than elaborate schemes or rules
riddled with exceptions and qualifications.
Example: People who should enforce the law – All
Gazetted officers, etc. ---- Leads to confusion ----
could be more clearer like ….. The departmental
heads

14. Key Ingredients - Consistency
The law must have a coherent internal structure that holds
together without omissions or gaps of logic. It should also
be consistent with existing laws, so the tobacco control
programme will blend with other programmes. For example,
definitions should resemble the definitions of similar terms
in existing laws, unless there are good reasons for a
different approach.
Example:- Tobacco Control Law in a country has almost
20 different set of rules and they change too frequently ……
even the definitions of “Public Places” change every six
month ….. Not a good thing

15. Key Ingredients - Familiarity
It is usually advantageous to use familiar concepts and
mechanisms. For example, selecting well-established
enforcement procedures already used by other laws, rather
than designing completely new ones, is likely to minimize
the risk of unexpected problems in implementation, and
may be more readily accepted by the legislative body.
Example: System of penalizing and prosecution, as in case
of traffic violations, is already established. Using a similar
mechanism would be easily accepted.

16. Key Ingredients - Flexibility
Tobacco control legislation should be flexible. Over time,
changes will be needed as the impact of the legislation is
evaluated, as new scientific evidence emerges, as
technologies improve, and as new interventions are
designed. Legislation should be written to give regulatory
authorities latitude to adapt to these conditions.
It is not advisable to have water-tight legislation –
Whereas, at the same time care must be taken that
someone is not able to dilute the basic legislation by it
being too lax

17. Key Ingredients – Flexibility
Expansion of scope with primary objectives
The areas where there is a scope to
use delegated legislation (Rules,
Regulation and Notifications for
Executive Control) should be
clearly identified, so that the law is
able to adapt (But not misused) as:
– the impact of the legislation is evaluated and need for change is
realised
– as new scientific evidence emerges
– as technologies improve
– as new interventions are designed
Good Example: Thailand’s 1992 Tobacco Control Law

18. Things to take care of
– Ensure no conflicts with other laws
– Taking care of the definitions – Should be in unison
Like
Public Places
Manufacturer and Trader
Cigarette
Example: Section 278 of Indian Penal Code 1860
Making atmosphere noxious to health: - Whoever voluntarily vitiates
the atmosphere in any place so as to make it noxious to the health of
persons in general dwelling or carrying on business in the
neighbourhood or passing along a public way, shall be punished with
fine which may extend to five hundred rupees.

19. Things to take care of
Known loopholes
- Negative + Negative
- Inclusion clause in definitions of provisions so as that it appears
to be exhaustive: Example – Definition of Public Places
- Proviso’s and Exemption Clauses
- Requirement under the law is mentioned but penal consequences
for violations are missing
- Requiring specific conditions, usually difficult to monitor
How to avoid them
Example:
Indian Law: Restaurants with seating capacity of 30
Thailand: Non AC restaurants
Exemption clause difficult to monitor

20. Definition of Cigarette in 1975
Indian Act

21. The Enforcement
Key to success of any
it’
legislation depends on it’s
effective
ENFORCEMENT
The same is true for “Tobacco Control” laws too
Unfortunately enforcement component gets very
little attention and not much work has been done
on enforcement of tobacco control laws