Disclosure of nicotine, tar levels on cigarette packs may be counter-productive: Centre to Kerala HC

The Union government of India has informed the Kerala High Court that mandating the disclosure of actual nicotine and tar content on cigarette packets, as stipulated by Section 7(5) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA), could be counter-productive. This stance was taken in response to a Public Interest Litigation (*Sangeerthana M v Union of India & ors*) seeking the implementation of the said provision, which has not yet been brought into force. The government argues that numerical figures might mislead the public into believing some tobacco products are safer than others, despite all being inherently harmful, and that pictorial warnings are more effective in conveying health risks.

A significant legal and public health debate is unfolding in the Kerala High Court, where the Union government has presented a nuanced argument against the mandatory disclosure of nicotine and tar levels on cigarette packaging. This development arises from a Public Interest Litigation (PIL) filed by advocate Sangeerthana M, seeking the enforcement of Section 7(5) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA). This provision legally requires tobacco product packages to indicate the nicotine and tar content of each cigarette, along with maximum permissible limits, a mandate that has remained unenforced since the Act's inception.

The Union Ministry of Health and Family Welfare, in an affidavit before a Division Bench of Chief Justice Soumen Sen and Justice Syam Kumar VM, contended that such numerical disclosures could be "counter-productive." The government asserts that providing specific numerical figures might inadvertently mislead consumers into perceiving certain tobacco products as less harmful than others, thereby undermining the overarching public health message that all tobacco products are dangerous. This case highlights a critical tension between a specific statutory requirement and evolving scientific understanding of effective public health communication in tobacco control.

India's legislative framework for tobacco control is primarily governed by the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA, 2003). Enacted to discourage and prohibit tobacco consumption, COTPA is a comprehensive public health legislation that aligns with the key objectives of the WHO Framework Convention on Tobacco Control (FCTC), which India ratified in 2004. A crucial, yet unenforced, provision within this Act is Section 7(5), which mandates that every package of cigarettes or other tobacco products must indicate the nicotine and tar contents, along with their maximum permissible limits. The proviso to this sub-section further states that these contents shall not exceed quantities prescribed by rules made under the Act.

However, Section 7(5) has not been brought into force because the Central Government has not yet prescribed the necessary maximum permissible limits. In contrast, other parts of Section 7, particularly Section 7(1), which mandates specified warnings including pictorial warnings, have been actively implemented. Over the years, India has progressively increased the size and prominence of these pictorial health warnings, with current regulations requiring them to cover 85% of the principal display area on both sides of tobacco product packages. This existing regulatory approach emphasizes graphic warnings as a primary tool for public awareness regarding the health risks of tobacco use.

The Union government's argument in *Sangeerthana M v Union of India & ors* rests on the premise that numerical disclosure of nicotine and tar levels could be counter-productive to public health objectives. This position is supported by a growing body of international research and recommendations. The World Health Organization's FCTC Article 11 Guidelines, for instance, explicitly advise against displaying figures for emission yields (such as tar, nicotine, and carbon monoxide), stating that such numbers are often misleading. Scientific studies have shown that consumers frequently misinterpret lower numerical values of tar and nicotine as indicators of reduced harm, leading to false beliefs that some cigarette brands are 'safer' than others. This misperception can deter smokers from quitting, as they might switch to a seemingly 'lower risk' product instead.

Furthermore, the machine-generated numbers for tar and nicotine do not accurately reflect the actual amounts inhaled by human smokers, as individual smoking patterns and cigarette design elements (like filter ventilation) significantly influence intake. Therefore, the government's concern that numerical disclosures could create an erroneous impression about the characteristics and health effects of tobacco products is well-founded and aligns with global best practices in tobacco control. The government's preference for pictorial warnings is also consistent with international trends, as graphic health warnings are widely recognized as more effective in communicating health risks, especially to populations with varying literacy levels.

The legal dilemma in this case stems from the non-implementation of a specific statutory provision, Section 7(5) of COTPA, 2003, which remains on the books despite the government's current public health policy. While the Act itself provides for the prescription of maximum permissible limits by rules, the absence of such rules has rendered the sub-section dormant. The government's affidavit effectively argues that enforcing this dormant provision now, without a robust scientific basis for its effectiveness and with potential for harm, would be detrimental. This situation highlights a potential conflict between a legislative mandate that may have been conceived with different scientific understanding and the dynamic evolution of public health policy informed by contemporary evidence. Several countries, including Australia, Thailand, Venezuela, and Brazil, have already moved to remove or prohibit numerical emission yields from packaging, replacing them with more descriptive information, further underscoring the global shift away from such disclosures.

The ongoing proceedings in the Kerala High Court regarding the disclosure of nicotine and tar levels on cigarette packs present a critical juncture for tobacco control policy in India. For legal practitioners, this case underscores the importance of understanding the interplay between statutory provisions, executive action (or inaction), and evolving public health science. The government's argument, rooted in the potential for consumer misinformation and alignment with international best practices from the WHO FCTC, suggests a pragmatic approach to public health over a literal enforcement of an unenforced statutory clause.

Practitioners in public health law, consumer protection, and regulatory affairs should closely monitor the Kerala High Court's decision in *Sangeerthana M v Union of India & ors*. A ruling that compels the implementation of Section 7(5) could necessitate a re-evaluation of India's tobacco packaging strategy, potentially conflicting with global recommendations. Conversely, a decision endorsing the government's rationale could pave the way for legislative amendments to COTPA, 2003, bringing it fully in line with current scientific consensus on effective tobacco warning labels. This case serves as a vital reminder that legal frameworks must remain adaptable to new evidence and public health imperatives to achieve their intended protective outcomes.