A Study Unlocking the Conflict between the Plain Packaging of Tobacco Products and the Value of Trademark Rights

  • Anmol Maheshwari, Research Fellow (Legal), Ministry of Commerce & Industry
  • June 30, 2021

Content :

In Australia, since December 1, 2012 all the tobacco products are being sold in plain standardised packaging free of fancy logos, colours, trademarks etc; instead 85% of the pack should be covered with a graphical and pictorial health warning with the purpose of making the consumers aware of the toxic effects of tobacco consumption. The present research is inspired by the determined attempts made by Australian Government in the context of implementing plain packaging of tobacco products and how we can implement the same in India. 

In India, The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as COTPA) and The Cigarettes and other Tobacco Products (Packaging and Labelling) Rules, 2008 (hereinafter referred to as Rules, 2008) were amended in 2014 wherein the size of health warning on the principle display areas of the packaging of tobacco products increased from 40% to 80%. Both the legislations are clearly within the legislative power and capacity of the Parliament and also represent an effective medium of implementing India’s obligations under the WHO Framework Convention on Tobacco Control, 2003 (FCTC). Unsurprisingly, like other nations, in India also the tobacco industry responded very aggressively and challenged it before Karnataka HC who quashed the order. Thereafter, an SLP was made before the Hon’ble SC, wherein the order of 85% of health warning was reinstated.

Thus, the much threatened litigation brought in by the tobacco industries of the world against the proposed regulations on plain packaging of tobacco products is rather vexatious. To be precise the legal actions by tobacco companies are a part of the strategy to frustrate the introduction and implementation of above stated legislations and amendment. 

“The Time is ripe” for India and being one of the largest tobacco producing country of the world, India can set an example for other developing jurisdictions to pave their way for a legislation regarding plain packaging of tobacco products.