Table 2

Assessment of key legislative and regulatory concerns

LegislationConcernIn realityRemarks
Constitution of India (Article 19(1)(g))Plain packaging will infringe freedom of tradeThis freedom is not absolute and Article 19(6) of the Constitution provides that reasonable restrictions on trade may be imposed for protecting interest of the general public and may restrict any trade and activity even to the exclusion of all and also impose a total prohibition on such trade.Total prohibition of tobacco trade is possible while plain packaging is no more than a reasonable restriction in the interest of public.
Constitution of India (Article 21)Plain packaging will infringe right to livelihood of those engaged in tobacco tradeSeveral studies have revealed that the industry exploits tendu leaf collectors (mostly tribals) and bidi rollers by forcing them to live in perpetual poverty with arduous working conditions and occupational health hazards.For many who are engaged in tobacco trade, it is the reason behind their poverty, ill health and robs them of living a life with dignity.
Constitution of India (Article 300 (A)) Trademarks Law, TRIPS, etcPlain packaging will amount to acquisition of propertyAlthough important, the right is not an absolute one within the Constitution or under trademark legislation and is subject to the restrictions of Article 19(2) of the Constitution of India.Property in this respect is vested with no more than a negative right.
Competition ActPlain packaging will be trade restrictive and anticompetitiveAs per section 54 of the Act, the Central Government has power to exempt the application of the very Act.There is constitutional protection to take such action under Article 19(6).
Consumer Protection ActPlain packaging will prevent customers from the basic information about the productPlain packaging will reduce possibilities for ‘unfair trade practice’ by tobacco producers and manufacturers.Consumer protection law is to be read in addition to and not in derogation of the provisions of COTPA.
Legal Metrology ActPlain packaging will affect mandatory declarations on prepackaged commoditiesMost of the mandatory declarations under this law are same as notified for tobacco products under COTPA regulations.Law already exempts bidi manufacturers on certain declarations.
  • COTPA, Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003; TRIPS, Trade-Related Intellectual Property Rights.