With Roman law doctrine, India moves to stub out tobacco industry rights

Godfrey Phillips India

29/01/2018 23:00

* India wants court to classify tobacco as outside commerce 
    * If agreed, Roman law doctrine could be a setback for 
industry 
    * Industry won't be able assert right to trade against 
regulation 
    * Lawyer for top tobacco companies says will fight govt 
argument 
 
    By Aditya Kalra 
    NEW DELHI, Jan 30 (Reuters) - The Indian government is 
pushing the Supreme Court to apply a rarely used doctrine that 
would strip the $11 billion tobacco industry's legal right to 
trade, an effort aimed at deterring tobacco companies from 
challenging tough new regulations. 
    New Delhi has for the first time asked the top court to 
classify tobacco as "res extra commercium", a Latin phrase 
meaning "outside commerce," according to a Reuters review of 
previously unreported court filing by the Health Ministry on 
Jan. 8. 
    If applied, the doctrine - which harkens back to Roman law - 
would have far reaching implications: in denying an industry's 
legal standing to trade, it gives authorities more leeway to 
impose restrictions.  
    For example, the Supreme Court's application of the doctrine 
to alcohol in the 1970s paved the way for at least two Indian 
states to ban it completely and allowed courts to take a 
stricter stance while regulating liquor - something 
constitutional law experts say could happen with tobacco if a 
similar ruling was made. 
    "The effects of tobacco are much more than even alcohol ... 
It will be a fillip to this drive against tobacco," said 
government lawyer R. Balasubramanian, who is acting on behalf of 
the Ministry of Health in pursuing the designation.  
    Balasubramanian, however, said the government is not 
discussing banning tobacco and the goal of invoking the Roman 
law doctrine was only to curtail the industry's legal rights. 
     
    CURBS AND RESTRICTIONS 
    With an aim to curb tobacco consumption - which kills more 
than 900,000 people each year in India - the government has in 
recent years raised tobacco taxes, started smoking cessation 
campaigns and introduced laws requiring covering most of the 
package in health warnings. 
    But a court in southern Karnataka state last month quashed 
those labelling rules after the tobacco industry successfully 
argued the measure was "unreasonable" and violated its right to 
trade. 
    The government this month appealed the ruling in the Supreme 
Court which put on hold the Karnataka court order. The top court 
will next hear the case on March 12.  urn:newsml:reuters.com:*:nL4N1P342R 
    In its filing, the government included "res extra 
commercium" because it wants to stop the industry from pursuing 
such arguments again, said Balasubramanian.       
    Seeking to apply the doctrine to tobacco, the government 
argued it should have the power "to regulate business and to 
mitigate evils" to safeguard public health, the court filing 
showed. 
    Sajan Poovayya, a senior lawyer representing top Indian 
cigarette maker ITC Ltd  ITC.NS  and Philip Morris International 
Inc's  PM.N  Indian partner, Godfrey Phillips  GDFR.NS , said 
the industry's legal rights would be severely limited if the 
court applies the doctrine to tobacco. 
    Poovayya said he would fight the government's argument 
"tooth and nail" and make a case that taking away the industry's 
right to trade would imperil millions of Indian farmers who 
depend on tobacco for their living. The industry estimates 45.7 
million people in India depend on tobacco for their living. 
    "India is a tobacco growing country and there's a need to 
look at the interest of those people who are already in the 
sector," Poovayya said.  
    "Tobacco is not destructive to health. If tobacco is, sugar 
is as well."  
    ITC and Godfrey Phillips, as well as India's health 
ministry, did not respond to requests for comment. 
     
    SET A PRECEDENT 
    India's tobacco labelling rules, which mandate 85 percent of 
a cigarette pack's surface be covered in health warnings, have 
been a sticking point between the government and the tobacco 
industry since they were enforced in 2016. 
    That year, the industry briefly shut factories across the 
country in protest and filed dozens of legal cases challenging 
the rules.          
    The federal health ministry says stringent health warnings 
on packages help reduce consumption of tobacco by making people 
aware of its ill-effects. A government survey last year found 62 
percent of cigarette smokers thought of quitting because of 
warning labels on the packets. 
    Mary Assunta, a long-time tobacco control advocate and a 
senior policy advisor at the Southeast Asia Tobacco Control 
Alliance, said she had never heard of a country applying the 
"res extra commercium" doctrine to tobacco, but hoped India 
would set a precedent. 
    "Such a classification will help protect tobacco control 
measures from being challenged, particularly for developing 
countries where the bulk of the smokers are," Assunta said. 
    The doctrine would open the door to an outright ban on 
tobacco sales if a state so wished, said Pratibha Jain, a 
partner at law firm Nishith Desai Associates and a specialist in 
Indian constitutional law. 
    "It gives the state autonomy to completely ban trade in 
tobacco," Jain said. "It gives governments the constitutional 
cover that will protect future litigation. The industry will 
lose significant ground as your protection of right to trade is 
gone." 
 
 (Editing by Tom Lasseter and Lincoln Feast) 
 ((aditya.kalra@thomsonreuters.com; +91-011-49548021; Reuters 
Messaging: aditya.kalra.thomsonreuters.com@reuters.net)(Twitter: 
@adityakalra)) 
 
Keywords: INDIA TOBACCO/