This is a guest post from trade lawyer Adarsh Ramanujan:
In a very interesting development in India relating to the plain packaging of tobacco products, the High Court of Allahabad (State of Uttar Pradesh) recently ordered that the Government of India "must consider to implement" the plain packaging scheme for tobacco products "at the earliest" and "strongly recommend[ed]" the Government of India to "consider the feasibility of implementing the plain packaging of cigarettes and other tobacco products".
The orders were passed pursuant to a public interest litigation (PIL) initiated under the Indian Constitution by a not-for-profit organization. For those who are not aware, PIL is a unique concept in a few common law countries, whereby any public spirited person can seek judicial directions on matters of public concern, most commonly, those relating to environment and public health. The petition sought a direction against the Government of India as well as one of the States within India, i.e. the State of Uttar Pradesh, to create and implement a scheme for plain packaging of tobacco products.
The starting point of this litigation is the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce Production, Supply and Distribution) Act, 2003 and the 2008 Rules framed thereunder. One of the main objects of the legislation was to protect non-smokers as well as protect children and young people from being addicted to tobacco. The Act also recognized in its preamble that this can be achieved, among others, by "eventually eliminat[ing] all direct and indirect advertising, promotion and sponsorship concerning tobacco". While the regime did place restrictions on advertising tobacco products, it did not specifically address plain packaging, i.e. "prohibiting use of logos, colours, brand names or prominent information on packaging". The petitioner's grievance was that branding / colourful packaging of tobacco products dilutes the achievement of the object of the legislation. By allowing the petition, the judgment posits the view that plain packaging of tobacco products caters to the object of eliminating direct and indirect advertising and promotion of tobacco products. The tenor of the submissions of the petitioner and of the judgment, shows the emphasis on children / youth / young adults as a protected group and the effect plain packaging may have in preventing tobacco addiction in this protected group.
What may be of interest is the basis on which such a direction was passed by the Court. The Court placed significant reliance on a study by Melanie A. Wakefield et al. on the recent implementation of the Australia Plain Packaging legislation. The judgment copiously quotes from this study to conclude that plain packaging is a "source of motivation or reminder for quitting" and / or a source for reducing "the appeal of smoking for young people". The judgment also effectively relies on an experimental study conducted in Brazil in relation to young women in 2012 (while the citation of this study is not mentioned in the judgment, this appears to be one). The Brazil study provides statistical evidence linking plain packaging to the reduction in the appeal for smoking among youth and young adults. Based on these and other reports concerning the ill-effects of tobacco, the High Court concluded that "[t]obacco plain packaging measure would be a long term investment to safeguard the health of the Indian youth". The High Court attached credibility to these factual conclusions because of the following factors:
- Plain packaging has been suggested based on "safe research" and supported by leading public health experts worldwide;
- The measure has been recommended by the WHO;
- Australia has implemented the scheme and the constitutionality of this measure has been upheld by the Australian High Court; and
- Other countries (notably, the UK and Ireland) are considering such measures.
Most people who are following the Plain Packaging disputes at the WTO would be aware that one of the most contested aspects of these disputes would be the factual basis – whether and how plain packaging of tobacco products will contribute to improving public health. In this context, it is interesting to note the certainty with which the Court in India arrived at its factual conclusions. This is probably due to the fact that neither the Union of India nor the State of U.P. raised any objection against the prayer of the petitioner. It was also stated on record that an amendment to this effect is already under deliberation at both the Central and the State levels. Given this background, the outcome in this case seems self-evident. Whether the result would have been the same had there been a dispute raised on facts cannot be predicted. The disputes at the WTO would involve such factual issues and it would be interesting to see the nature of evidence produced on both sides and manner in which the DSB bodies would apply their standard of review in considering the same.
