Legal Challenges in Tobacco Control: Historical and Qualitative Analysis of Litigations in Karnataka

Introduction

Tobacco use is a major cause of disease and death in India posing significant public health and regulatory challenge. Unlike many other parts of the world, India’s tobacco consumption patterns are highly localised with a significant variation in the extent and types of products consumed across states. The southern state of Karnataka, also the largest state in the region, absorbs a fair share of the burden associated with tobacco use. In 2016, almost one in three men and one in ten women consumed tobacco, amounting to 12 million (22.8% of population) tobacco users in Karnataka.¹ Hence, unsurprisingly, tobacco attributable diseases exert a huge cost, estimated at INR 9.83 billion for the people aged 35-69 years in Karnataka for the year 2011.²

The Government of Karnataka has responded to this health crisis by instituting several regulatory and other measures to reduce tobacco use and its associated burden. Even before the enactment of the Cigarette and Other Products Act, 2003³ – India’s National Tobacco Control law – Karnataka had enacted the Karnataka Prohibition of Smoking and Protection of Health of Non–Smokers Act, 2001.⁴ Subsequently, the state has incrementally put in place an ensemble of regulations, including a comprehensive ban on gutka, pan masala (containing tobacco) and electronic cigarettes. The state has witnessed notable progress in terms of reduction in tobacco use prevalence by 5.4 percentage points among adults (between 2009-10 and 2016-17) and by 3.7 percentage points among youth (between 2003-04 and 2019).^1,5,6

Karnataka is also a manufacturing hub for the tobacco industry in India. It is among the largest producers of tobacco leaf while also being a major manufacturer of cigarettes, beedis and smokeless tobacco products in India. Studies in India and abroad have shown that the tobacco industry systematically deploys a range of tactics including litigations, to challenge tobacco control regulations.^7,8 In this context, the State Tobacco Control Cell, a statutory authority under the Department of Health and Family Welfare Services (Government of Karnataka), commissioned this study. The study aimed to analyse, historically, tobacco-related litigation adjudicated by the Karnataka High Court to better understand how laws/regulations have been used and contested by various stakeholders in advancing or resisting the tobacco control efforts in the state.

Methods

We used a retrospective qualitative analysis of tobaccorelated litigation adjudicated by the Karnataka High Court.

Data collection

We searched the Manupatra,⁹ Indian legal database, using a range of terms for tobacco products (tobacco, bidi/ beedi, khaini, gutka/gutkha, cigarette, hukka/hookah, zarda, gul, kharra, mishri, mawa, gudakhu, nastaar, chillum, cheroot, and cigar) in early March 2020. We used a filter to restrict the search results to cases that were adjudicated in Karnataka High Court. We did not use a time filter, thereby allowing an exhaustive search across the archives. The search yielded 468 cases. The first author (RD) screened these cases and excluded the cases where tobacco was not the subject matter of the dispute, and where cases had no direct relevance to the substantive questions about tobacco control laws/ regulations. Furthermore, cases dealing with labour disputes (e.g. gratuity of beedi workers, or payment of minimum wages to beedi workers) were excluded. We ended up with 39 cases that dealt primarily with tobacco and its implications on tobacco control laws/regulations. We mapped and analysed these cases in detail for the study. See Supplementary File 1 for the list of these 39 cases.

Data analysis

We used qualitative thematic analysis of the contents of these cases (the Court judgements). We first mapped these cases in a Microsoft Excel spreadsheet on the following grounds: the petitioners, their claims, summary of court proceedings, and case outcomes. We also conducted free internet searches to collate information about the petitioners when details were not provided in the case itself. RD, with formal training in law and legal research, conducted the case mapping and analysis and developed early narratives on how different laws were used/contested for tobacco control. She worked closely with UB, who had formal training in public health with experience in tobacco control research and legal interventions. They both periodically discussed the emerging narratives and framing of the results. NJ, interning as part of her public health postgraduate degree, categorised the petitioners concerning their role in the tobacco business. PP and MS, both working with the public agency engaged in tobacco control, reviewed the results and provided inputs from their experience. We did not use any specific theory/model a priory and our analysis was guided by our enquiry: How various laws dealing with tobacco have been used and contested by stakeholders to either promote or resist tobacco control in Karnataka? Who are these petitioners/stakeholders and what are their interests?

Results

We analysed 39 tobacco-related litigations that were adjudicated by Karnataka high Court between the years 1950 to 2020.

Laws/regulations and Contestations

We first discuss the major laws/regulations invoked in tobacco-related litigations in Karnataka and how they were contested. Table 1 depicts the laws, the tobacco products regulated under them, and a summary of the nature of disputes brought forward through these laws in the litigations studied. Several laws, apart from the tobacco control law, including food laws, municipal laws, tax laws and laws regulating drugs appeared to be major laws in tobacco-related litigations. The disputes varied from questions of law (interpretation and applicability of prevailing laws), questions of authority (power of issuing regulations under the prevailing laws) and disputes concerning procedures/operation of regulations.

We now provide a narrative summary for each of these major laws on how they were contested with implications for tobacco control.

Tobacco Control law (COTPA: Cigarette and Other Tobacco Products Act, 2003)

COTPA is India’s National Tobacco Control law that mandates pictorial health warnings on tobacco packs in addition to prohibiting the sale of tobacco products to minors, smoking in public places, and tobacco advertisements.¹⁰ Litigations under the Act predominantly involved challenging its implementation.

In Shaikh Musa 2017,¹¹ the proprietor – trading in tobacco products – contested the police raid on his business. The police had booked the petitioner (vendor) and seized tobacco products for the violation of Section 7 of COTPA. Referencing the letter issued by the Government of India, the petitioner argued that the time for implementing pictorial warnings had been extended and the case was prematurely registered. The Court in turn held that the raids, conducted before the extended period, were an abuse of power. Hence, the criminal proceedings were quashed. In Tobacco Institute of India 2017,¹² the petitioners challenged the validity of the Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules 2014 that sought to increase the size of the pictorial health warnings to cover 85% of tobacco pack surface.

In contrast to this general trend of petitioners challenging the implementation of the law, a couple of public health oriented organizations/individuals used public interest litigations to demand strengthening of tobacco control regulations. In Rahul Joshi 2017,¹³ a practising advocate prayed for the better implementation of the pictorial health warnings (Cigarettes and Other Tobacco Products (Packaging and Labelling) Amendment Rules, 2014). Similarly, in the Institute of Public Health 2010,¹⁴ a public health institution prayed for withdrawal of support (including financial grant) by the India Tobacco Board, a statutory body of the Government of India, to the Global Tobacco Networking Forum 2010 (a global tobacco industry promotional event) as this was in dereliction of COTPA, 2003. The petitioner further demanded a policy by the Government of India to prevent tobacco industry interference in tobacco control.

Food laws (PFA: Prevention of Food Adulteration Act, 1954; FSSA: Food Safety and Standards Act, 2006)

Similar to many other states in India, the Government of Karnataka issued a notification prohibiting the manufacture and sale of dominant forms of chewing tobacco, gutka and pan masala containing tobacco, under (FSSA) Regulation 2.3.4. Before this, the PFA and its Rules 1955 were used to incidentally regulate chewing tobacco products as “food”. The litigations adjudicated by the Karnataka High Court mainly challenged the use of the food laws to regulate chewing tobacco products.

In Malnad Areca Marketing Co-operative Society Ltd. 2007,¹⁵ the petitioner challenged the constitutionality of the amendment to Rule 42 (6) of the PFA that mandated health warnings on every packet of chewing tobacco products. Similarly, in Ghodawat Pan Masala 2013,¹⁶ the petitioner – engaged in the trading and manufacturing of pan masala – contested the notification by Karnataka Government banning gutka and pan masala in the state. Petitioners strongly maintained that the aforementioned regulation does not find applicability in the context of items mentioned in the COTPA Schedule().

Tax laws (KSTA: Karnataka Sales Tax Act 1957; KTEGA: Karnataka Tax on Entry of Goods Act, 1979; KVATA: Karnataka Value Added Tax Act 2003)

KTEGA, 1979 enables the levy of tax on the entry of goods mentioned in the First Schedule into a local area for consumption, use or sale.¹⁷ Tobacco-related litigations under this law mainly dealt with the controversy of whether unmanufactured tobacco should be taxed. In Giriraj Enterprises 2019,¹⁸ the petitioner – engaged in the business of unmanufactured tobacco challenged the notification including the levy of tax on unmanufactured tobacco in a sealed container. They maintained: the distinct classification of “unmanufactured tobacco” as a separate entry meant that the goods are not in conformity with the goods described in the First Schedule of the Act (that are to be taxed). The petitioner contested the power of the State Government to levy entry tax on unmanufactured tobacco as contravening Article 301 and 304 (b) of the Indian Constitution.

In ITC Limited 2019,¹⁹ the petitioner – a cigarette manufacturer, submitted that the Assessment Order²⁰ issued by the State Government subjecting unmanufactured tobacco products to taxation was inconsistent with provisions of the Act. The petitioner argued that “unmanufactured tobacco” is subsumed under Entry 2 of the Second Schedule of the Act (concerning ‘Agricultural Produce’) and consequentially should be exempt from entry tax. Earlier, in P.V. Sindhur 1996,²¹ the Karnataka High Court was tasked with deciding whether tendu/beedi leaves were within the purview of ‘Agricultural Produce’ and therefore exempt from tax. The petitioners engaged in the manufacturing of beedis were aggrieved by the notices for assessment of tax issued against them.

For the longest time, under the KSTA 1957, tobacco was exempt from sales tax. In 1997, this changed as an amendment to the law made tobacco products including gutka, taxable. In Suresh Agencies 2011,²² the petitioner – a trader dealing with gutka, paan masala and tobacco products paid the tax for the assessment year and thereafter submitted that the tax was not charged to his customers. In line with the Supreme Court’s decision that the State Government was not authorised to impose sales tax (on gutka), the petitioner filed for rectification of the assessment order and a subsequent refund.

Similarly, in Damodar Enterprises 2010,²³ the petitioner – a partnership firm carrying on the business of manufacture and sale of beedis appealed whether the notification exempting “unmanufactured tobacco”, including tobacco used in the manufacture of beedis, from tax under the KVAT 2003, is ex abundanti cautela (out of abundant caution, to be on the safer side). The petitioner submitted that beedis have historically taken the form of cottage industry products and are known to provide sustenance/livelihood to the poor. They also highlighted that this form of tobacco is also sold and consumed by a particular socio-economic group: petty traders and people from lower economic strata. The crux of their argument was that these considerations should exempt the sale of beedis from both, the KSTA 1957 as well as the KVATA 2003. To further support their claim, the petitioner brought the Court’s attention to parliament’s enactment of the Additional Duties of Excise (Goods of Special Importance) Act, 1957. The Act was to enable the levy and collection of additional excise on certain goods and termed “unmanufactured tobacco” as well as tobacco used in the manufacture of beedi as goods of special importance in interstate trade and commerce. Through this, the petitioner sought to cull out the intention of the State in exempting the products in question from being taxed.

Other laws

Karnataka Municipal Corporation Act, 1976 (KMCA)

Tobacco-related litigations under the KMCA 1976 dealt with the cancellation of trade licences of certain business establishments serving hookah. In Concepts and More 2012,²⁴ the petitioners – owners of cafes/restaurants serving hookah contested the seizure of hookahs from their premise by the Bruhath Bengaluru Mahanagara Palike (Municipal Corporation). The Court ordered the petitioners to make representation before the Municipal Commissioner, following which their trade licenses were cancelled. Hence, the café/restaurant owners approached the Karnataka High Court arguing that Section 66 of the KMCA does not allow the Municipal Commissioner to delegate this quasi-judicial power to a subordinate officer. The petitioners further argued that since COTPA 2003 regulates the use of hookah, the Municipal Corporation had no jurisdiction to carry out the impugned seizure.

Similarly, in Aticara Hospitality Pvt. Ltd. 2018,²⁵ the petitioner – a bar and restaurant owner challenged the Bengaluru Municipal Corporation for issuing a notice suggesting that the petitioner was carrying out hookah business without taking a license from the Municipal Corporation. The petitioner contended that the required trade license to run the business had been obtained and that no separate license for serving hookah was mandated.

Tobacco Board Act 1975

The Tobacco Board Act 1975²⁶ was enacted by the Government of India to enable the setting up of the Tobacco Board. The Board is mandated to promote the growth and trade of Flue-Cured Virginia tobacco leaf. In Nazeer Pasha 2013,²⁷ the petitioner’s tobacco was confiscated for want of appropriate documents and they were subsequently charged under relevant provisions of the Tobacco Board Act, 1975. During this time, the produce being perishable, was sold and hence the petitioner claimed for the reimbursement of the amount recovered from the sale.

A Circular Prohibiting the Electronic Nicotine Delivery Systems, 2016

In June 2016, the Government of Karnataka issued a circular prohibiting the sale, manufacture, distribution, trade, import and advertisement of Electronic Nicotine Delivery Systems (ENDS).²⁸ In Council for Harm Reduced Alternatives 2019,²⁹ the petitioner challenged the power of the State Government to issue the impugned order. They relied on decisions passed by the Bombay and Delhi High Courts that negated the validity of the ban on ENDS under the Drugs and Cosmetics Act 1940. Contesting the state ban on ENDS, the petitioner claimed that scientific evidence suggested ENDS as less harmful than traditional cigarettes. They argued that cigarettes containing tobacco were merely regulated, but ENDS despite being supposedly less harmful, were completely banned.

Petitioners

We now focus on the petitioners who filed these litigations before the Karnataka High Court. A majority of the petitioners (81%) comprise the tobacco industry (ie., manufacturers, traders, sellers, industry representatives) or incidentally dealt with its products (e.g., transporters or restaurants/cafes owners serving tobacco products). Amongst the industry-related petitioners, the cigarette and smokeless tobacco entities comprised a large share. These petitioners used litigations to protect their commercial interests by resisting tobacco control laws/regulations. The remaining petitioners included public agencies/authorities (12%), most of whom used litigations to enforce the existing law; and publicspirited citizens/organizations (7%) that availed public interest litigations to demand stricter implementation of the law. Supplementary File 2 provides details about the petitioners, their interests/contentions and the case outcomes.

Discussion

Our study of tobacco-related litigations adjudicated by the Karnataka High Court demonstrated that tobacco regulations and legal challenges arise from a range of laws related to food, pharmaceuticals, municipal affairs and taxation in addition to tobacco-specific laws (such as COTPA and Tobacco Boards Act). We found that these tobacco regulations have been intensely litigated, predominantly by parties with commercial interests in tobacco that resisted these regulations. Comparatively, there were very few litigations from public health advocates demanding stricter tobacco control regulations and/or their implementation.

Earlier studies have documented legal challenges to tobacco control regulations at the national level (and in the South Asia region) wherein the tobacco industry used litigations to resist or weaken tobacco control regulations.^7,8,30 Our study provides a historical analysis of tobacco-related litigations at the state level (Karnataka), probably for the first time in India showing that tobacco industry uses litigations as a major strategy in challenging tobacco control regulations at the state level. Karnataka, being the hub for tobacco cultivation as well as manufacturing of cigarettes, beedis and smokeless tobacco, provides fertile ground for industry’s resistance to tobacco control regulations. Our study also supports the existing literature on the role of public interest litigations, although confined to a significantly small share when compared to industry-led litigations, in demanding stricter tobacco control regulations and their implementation.^31,32

Additionally, several legal challenges identified in our analysis of tobacco-related litigations could inform tobacco control authorities in Karnataka and other Indian states to anticipate and prepare for future legal challenges as they plan and implement tobacco control regulations.

Lastly, the sheer volume of tobacco-related litigations before the Karnataka High Court speaks for the range of laws being invoked which have direct implications on tobacco control regulations. Hence, the State Tobacco Control Cell (and related regulatory agencies) would benefit tremendously by having dedicated legal personnel/resources to respond to and address the myriad of legal challenges. Such a resource will also help enhance legal awareness among tobacco control/ public health officers and improve the drafting and legal scrutiny of these regulations/notifications, thus reducing the space for litigations.

Supplementary data is available at the HGJ Health Policy Research’s website

Conclusion

An analysis of litigations help identify all the legal challenges that tobacco control authorities can anticipate and prepare for future challenges in tobacco control regulations. Tobacco control agencies need adequate legal personnel and resources to effectively respond to these challenges.

Conflict of Interests

UB is a member of the Advisory Board of the HGJ Health Policy Research. The authors declare no conflict of interest for this work.

Acknowledgements

This study was commissioned and funded by the State Tobacco Control Cell, Department of Health and Family Welfare Services, Government of Karnataka. RD and UB were supported through the DBT/Wellcome Trust India Alliance fellowship (IA/CPHI/17/1/503346) awarded to UB. NJ received an internship stipend from the Institute of Public Health, Bengaluru. PP and MS are employed at the Department of Health and Family Welfare Services, Government of Karnataka.