Why Tobacco Is Res Extra Commercium - Live Law

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Why Tobacco is Res Extra

Commercium? | Live Law
By: Dr. Amit Yadav & Dr. Yogesh Pratap Singh
Scientist and experts across the globe have unequivocally proved

that tobacco use kills half of its user in their lifetime if they do not
stop using tobacco (according to government sources tobacco
consumption kills more than 900,000 people every year in India).
Study also suggests tobacco, which is laced with nicotine, is a
highly addictive substance, even more than heroin or cocaine. Over
the counter, unrestricted sale of such products per se is an
antithesis to the fundamental right to life guaranteed under Article 21
of the Constitution. Given the properties and the evidence against
tobacco, sale of any tobacco product for human consumption
inherently involves an unfair trade practice and hence goes against
the ethos of consumer protection regime. In spite of that, it has been
an implausible task to limit the $11 billion tobacco industry’s right to
trade. Though, Indian government for the first time requested the
apex court to classify tobacco as res extra commercium i.e. things
beyond commerce. The move is part of government’s effort to tame
the tobacco companies challenging the governmental authority to
regulate the industry in general public interest.
While enacting the Cigarettes and Other Tobacco Products
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Why Tobacco is Res Extra Commercium? | Live Law about:reader?url=http://www.livelaw.in/tobacco-res-extra-commercium/
(Prohibition of Advertisement and Regulation of Trade and

Commerce, Production, Distribution and Supply) Act, 2003
(COTPA), the Parliament considered the resolutions of the 39th and
43rd World Health Assemblies that inter alia called Parties; “to
protect children and young people from being addicted to the use of
tobacco” and the Parliament also in all its wisdom acknowledged
that, it is expedient to prohibit the consumption of cigarettes and
other tobacco products which are injurious to health (emphasis
added) with a view to accomplish improvement of public health in
general as commanded by article 47 of the Constitution. It is
sufficiently clear from COTPA that the legislators considered
tobacco as “res extra commercium” as far as minors are concerned
but also expressed their intent to prohibit tobacco consumption to
improve public health to meet the obligation under Article 47 of the
constitution. It also casts a duty on the state to bring about the
prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health.
In the late 1990s and early 2000s, several state governments had
banned sale of gutkha and pan masala within their respective
jurisdictions. Several of these orders were upheld by the respective
High Courts, however, the Apex Court reversed the ban while
considering appeals against the ban in Godawat Pan Masala
Products I.P vs Union of India & Ors. (2004). The State of Goa, to
overcome this difficulty, amended its Public Health Act and imposed
a ban under the state law. Two years later, with the enactment of the
Food Safety and Standards Act 2006 (FSSA) and the fresh
regulations under FSSA prohibited use of tobacco and nicotine as
an ingredient in food items. This resulted in the ban on the sale of
guthka and pan masala containing tobacco and nicotine. The
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regulation imposes a ban on all tobacco products which may contain

any trace of food products including any kind of tobacco flavored
with food additives. The regulation and the resulting ban on gutkha
and pan masala with tobacco were again challenged and once again
came before the Apex Court’s consideration in Ankur Gutkha vs.
Indian Asthma Care Society. The Apex Court, with the new FSSA
Act and its regulations, upheld the ban and directed all states
imposing the ban to file compliance report and issued notices
against other states not implementing the ban on manufacturing and
sale of Gutkha and Pan Masala with tobacco and/or nicotine.
The state of Assam, going a step further, enacted and implemented

the Assam Health (Prohibition of Manufacturing, Advertisement,
Trade, Storage, Distribution, Sale and Consumption of Zarda,
Gutkha, Pan Masala, etc, containing Tobacco and Nicotine) Act,
2013, making the consumption and trade of all forms of smokeless
tobacco illegal. However, this public health measure was injuncted
by the Gauhati High Court. The matter is certainly going to reach the
Apex Court which is already seized with several petitions relating to
the rising burden of tobacco use and the need for its strict
regulation. India’s tobacco labelling rules, which mandate 85% of a
cigarette pack’s surface be covered in health warnings, have been
another spearing point between the government and tobacco
industries since its inception in 2016. In another blow to public
health regime, he Karnataka High Court bizarrely struck down the
Cigarettes and Other Tobacco Products (Packaging and Labelling)
Amendment Rules, 2014 (COTPA) which came into effect from April
1, 2016, holding that they violated Constitutional norms.
Tobacco industry’s challenge to any regulation under COTPA is
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unsustainable for the simple reason that Constitution empowers

State under Article 19(6) to impose even a complete restriction on
freedom of trade as guaranteed under Article 19(1)(g) in public
interest. And therefore, in view of the Apex Court’s order in Ankur
Gutkha case and observation of the Allahabad High Court in M/s
Khedal Lal & Sons vs. State of UP, the state action to impose
restrictions and or prohibitions on tobacco, given its colossal public
health burden, must be upheld. The Supreme Court is seized with
this opportunity, in the upcoming matter on the implementation of
pictorial health warnings on tobacco products, to close the matter for
once and all in the larger interest of the health of present and future
generations of this great country.
Authors are Expert in Public Health Law and Policy and Deputy
Registrar, Supreme Court of India respectively.
[The opinions expressed in this article are the personal opinions of

the author. The facts and opinions appearing in the article do not
reflect the views of LiveLaw and LiveLaw does not assume any
responsibility or liability for the same]
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Why Tobacco is Res Extra Commercium? | Live Law about:reader?url=http://www.livelaw.

Why Tobacco is Res Extra

Scientist and experts across the globe have unequivocally proved

While enacting the Cigarettes and Other Tobacco Products

(Prohibition of Advertisement and Regulation of Trade and

regulation imposes a ban on all tobacco products which may contain

The state of Assam, going a step further, enacted and implemented

Tobacco industry’s challenge to any regulation under COTPA is

unsustainable for the simple reason that Constitution empowers

[The opinions expressed in this article are the personal opinions of

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