Naya Bans Sarv Vyapar Association v. Union of India
In this judgment of the Delhi High Court, an association of tobacco wholesalers challenged certain provisions of the Cigarettes and Other Tobacco Products Act 2003 (COTPA) which banned the selling of tobacco products within a 100 yard radius of any educational institution. The wholesalers sought an exclusion of their wholesale trade from the law, arguing that the intent of the law was to reduce retail sale and their business would not be a danger to young people buying tobacco. While highlighting the public health need for COTPA, the court dismissed the petition, holding that the sale of tobacco products, whether in wholesale or in retail, near the educational institution has the potential of attracting the students so both type of tobacco sellers should be equally restricted. In addition to dismissing the petition, the court also imposed costs of 20,000 rupees each on the petitioners to be paid to the central and state governments for anti-tobacco initiatives.
Naya Bans Sarv Vyapar Assoc. v Union of India & Ors. (W.P. No.7292/2011).
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Measures restricting tobacco sales to or by minors, as well as other retail restrictions relating to point-of-sale, candy and toys resembling tobacco products, vending machines, or free distribution.
(See FCTC Art. 16)
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A discussion on whether the regulations impose an undue burden on the tobacco industry. This argument may involve the costs of implementing regulatory measures.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"The presence of wholesellers of tobacco and tobacco products within the prohibited radius would definitely expose the students of educational institutions to the sight and also probably the aroma of tobacco. It has been famously said that attraction to tobacco is largely because of its aroma and addiction follows. The lure of the aroma of tobacco is such that even the female gender, traditionally not known as consumers of tobacco, in our country, have not been spared. It is such lure which leads to the adolescents, in their bravado, to tobacco and tobacco products. Sensory cues accompanying cigarette smoking contribute significantly to enticement associated therewith.
The presence, even of a wholesale shop of tobacco / tobacco products next door to an educational institution will certainly have the propensity of reminding the students thereof, day in and day out, of the availability of tobacco and will also bring, literally to their door, traders in tobacco. The bringing in and bringing out of tobacco and tobacco products from said shops / establishments in the sight of the students, will also expose them to the easy accessibility thereto and may also plant a seed in their adolescent minds as to the consumption thereof. Even if it were to be held that the said shops / establishments will not display on their façade any advertisements of the products they are dealing in, but would certainly display their names and description of their trade and a child learning to read would learn to read the spelling of cigarette, tobacco etc. We for this reason also do not find any merit in the plea raised."
"However, the provisions under challenge cannot be read in isolation and have to necessarily take their colour from the legislations of which they are a part. The said legislations are not intended merely against sale of tobacco and tobacco products to students in the vicinity of their educational institutions but also take within their ambit restrictions on places where one can smoke and advertisement or other ways of promoting smoking or sale of cigarettes to minors etc. We are thus unable to accept the narrow and constricted aim and intent which the petitioner would impute to the provisions under challenge. The prohibition on sale of cigarette or tobacco products in close vicinity of educational institutions is found to have the larger objective of reducing the exposure of the students of the said educational institutions to cigarette or tobacco products. The question which thus arises is whether in the said light wholesellers and retailers can be said to be differently placed or the provisions under challenge being unreasonable and arbitrary."
"The Parliament, in the year 2003, while enacting COTPA, in the Statement of Objects and Reasons thereof noted that tobacco is responsible for an estimated eight lakh deaths annually in the country, that the treatment of tobacco related diseases and loss of productivity caused therefrom was costing the country almost `13,500 crores annually, offsetting completely the revenue and employment generated by tobacco industry and described the objective of COTPA as to prevent the sale of tobacco products to minors and to protect them from becoming victims of misleading advertisements, all to achieve a healthier lifestyle and protection of right to life enshrined in the Constitution. Undoubtedly, the Supreme Court in Godawat Pan Masala Products I.P. Ltd. (supra) maintained that the legislature/government having chosen not to ban the sale of tobacco products except to minors, trade in tobacco could not be classified as res extra commercium i.e. a business in crime, but the principles laid down in Cooverjee B. Bharucha v. Excise Commr., Ajmer AIR 1954 SC 220 and P.N. Krishna Lal v. Govt. of Kerala 1995 Supp (2) SCC 187, that there is no fundamental right to trade in dangerous and noxious substances, would nevertheless apply to tobacco which has now been universally accepted as a major public health hazard."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
In this judgment of the Delhi High Court, an association of tobacco wholesalers challenged certain provisions of the Cigarettes and Other Tobacco Products Act 2003 (COTPA) which banned the selling of tobacco products within a 100 yard radius of any educational institution. The wholesalers sought an exclusion of their wholesale trade from the law, arguing that the intent of the law was to reduce retail sale and their business would not be a danger to young people buying tobacco. While highlighting the public health need for COTPA, the court dismissed the petition, holding that the sale of tobacco products, whether in wholesale or in retail, near the educational institution has the potential of attracting the students so both type of tobacco sellers should be equally restricted. In addition to dismissing the petition, the court also imposed costs of 20,000 rupees each on the petitioners to be paid to the central and state governments for anti-tobacco initiatives.