India

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The law does provide a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products. Further, the law prohibits persons “having control over a medium” to advertise tobacco through such a medium. These provisions appear to ban advertising of tobacco products on radio.

The Government additionally regulates cable television via the Cable Television Networks Act (CTNA) and implementing rules which prohibit direct advertising of cigarettes or tobacco products on Indian cable networks, but permit the indirect advertising of such products under certain circumstances. (Note that a July 2010 Ministry of Information and Broadcasting Directive appears to prohibit indirect advertising on cable networks until guidelines called for by the CTNA Rules are issued.)

We interpret the law largely to meet a ban on tobacco product advertising and promotion in domestic TV and radio and other forms of domestic broadcast media (e.g., satellite, cable). It is unclear, however, how COTPA and CTNA legislation which may permit indirect advertising are read together. To ensure alignment with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the drafters should utilize the FCTC definition of “tobacco advertising and promotion” and make clear that COTPA explicitly regulates the advertising and promotion of tobacco products.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The definition of “advertisement,” however, includes “any visible representation by way of notice, circular, and other documents.” Further, the law provides a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products. The law also prohibits persons “having control over a medium” to advertise tobacco through such a medium. These provisions appear to ban advertising of tobacco products in domestic newspapers and magazines.

As tobacco advertising and promotion appears to be banned in domestic newspapers and magazines, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

We understand, however, that while such advertising is prohibited, there are many violations especially in local/vernacular newspapers. Primarily manufacturers of smokeless tobacco commit these violations as they stretch tobacco product brands to advertise non-tobacco products.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The definition of advertisement, however, does state that the definition includes “any visible representation by way of notice, circular, and other documents.” Although the law provides a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products; prohibits persons “having control over a medium” to advertise tobacco through such a medium; and prohibits persons from distributing to the public any leaflet, hand-bill or document which contains tobacco advertising, COTPA Section 5(2) includes an exception which permits tobacco advertising at the entrance or inside a warehouse or shop where tobacco products are sold.

Because the point of sale exception is analyzed under a separate category, the regulatory status code of “Banned” is used here rather than “Some Restrictions.” Therefore, the law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to advertising in other domestic print media such as pamphlets, leaflets, flyers, posters and signs. However, to fully align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should ban all forms of printed tobacco advertisements including at point of sale. In addition, the drafters should utilize the FCTC definition of “tobacco advertising and promotion.”

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The law provides a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products. Further, the law prohibits persons “having control over a medium” to advertise tobacco through such a medium. These provisions appear to ban advertising of tobacco products on radio. However, the law is silent as to whether the ban applies to advertising on cross-border radio.

The MOHFW has attempted to re-notify rules prohibiting advertising on international television but has not established an effective date for such rules. Further, we understand that the Cable Television Networks Act (CTNA) only regulates Indian cable networks. Accordingly, we conclude that international television, including cable, is unregulated.

Because the ban makes no mention of its application to certain forms of cross-border media (e.g., radio), the regulatory status “Uncertain” has been assigned.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the drafters should utilize the FCTC definition of “tobacco advertising and promotion” and make it clear that tobacco advertising and promotion on international TV, radio, and other broadcast media (e.g., satellite, cable) is banned.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The definition of “advertisement,” however, includes “any visible representation by way of notice, circular, and other documents.” The law further provides a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products. Further, the law prohibits persons “having control over a medium” to advertise tobacco through such a medium. Although the law does not address explicitly tobacco advertising and promotion in newspapers and magazines, we interpret the above provisions as encompassing such advertising. However, the law is silent as to whether the ban applies to advertising in cross-border newspapers and magazines.

The ban would likely be interpreted to include print media advertising entering India because allowing such advertising would defeat the purpose of the ban. It is not clear whether the ban would be applied to cross-border tobacco advertising originating from India. Because the law is unclear on cross-border advertising, the regulatory status code of “Uncertain” is given rather than “Banned.”

To fully align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the ban should be explicitly applied to domestic and cross-border tobacco advertising and promotion, including in newspapers and magazines.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The law does provide a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products. Further, the law prohibits persons “having control over a medium” to advertise tobacco through such a medium. These provisions appear to ban advertising of tobacco products in internet communications.

As tobacco advertising and promotion appears to be banned in internet communications, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The law does provide a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products and prohibits persons “having control over a medium” to advertise tobacco through such a medium. COTPA Sec. 5(2) further prohibits the location of tobacco advertising on any land, building or wall, among other places. The law also requires cropping or masking brand names and logos of tobacco products in outdoor media. These provisions appear to ban the outdoor advertising of tobacco products.

As tobacco advertising and promotion appears to be banned outdoors, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

Section 5(2) of the COTPA 2003 includes a specific exception for point of sale advertising. The Ministry of Health and Family Welfare has sought to put restrictions on that exception through G.S.R. 345(E), which establishes strict rules for the display boards that are used for advertising at the entrances of shops where tobacco is sold. The rules limit their size and prohibit the use of photos of tobacco product brands; brand names; other promotional messages; and illumination.

The law aligns with FCTC Art. 13 and the FCTC Art. 13 Guidelines with respect to point of sale advertising and promotion.

Section 4(5) of G.S.R. 137 (as amended) states that the owners of a store where tobacco products are sold shall not display tobacco products in such a way that they are visible so as to prevent easy access of tobacco products to persons below the age of eighteen years. It is unclear whether this provides for a complete ban on the point of sale product displays. In addition, Sec. 5(1)(d) (as amended by G.S.R. 619(E)) contains a provision that tobacco products are not to be displayed in a manner that enables easy access of tobacco products to persons below the age of eighteen years, without any mention of visibility. Because there are two conflicting rules, the regulatory status code “Uncertain” is given.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should prohibit all tobacco product displays at points of sale.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The law does provide a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products. Further, the law prohibits persons “having control over a medium” to advertise tobacco through such a medium. Although the law does not address explicitly tobacco advertising and promotion via conventional mail, we interpret the above provisions as encompassing such advertising.

As tobacco advertising and promotion via conventional mail appears to be banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The law does prohibit persons “having control over a medium” to advertise tobacco through such a medium. Although the law does not address explicitly tobacco advertising and promotion via telephone and cellular phone, we interpret the above provisions as encompassing such advertising.

As tobacco advertising and promotion via telephone and cellular phone appears to be banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The law does provide a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products. Further, the law prohibits persons “having control over a medium” to advertise tobacco through such a medium. Finally, the law prohibits any person from “tak[ing] part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.” “Indirect advertisement” is further defined in the rules. Although the law does not address explicitly tobacco advertising and promotion via distinctive words, designs, images, logos, etc. in entertainment venues, among other places, we interpret the above provisions as encompassing such advertising.

As tobacco advertising and promotion via distinctive words, designs, images, logos, etc. in entertainment venues, among other places appears to be banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

The law prohibits generally the promotion of tobacco products. Because the law does not define “promotion,” however, it is unclear exactly what promotional actions are prohibited. We, nevertheless, interpret the ban on promotion to include the free distribution of tobacco products.

As tobacco promotion via the free distribution of tobacco products appears to be banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines and meet FCTC Art. 16 (sales to and by minors).

The law prohibits generally the promotion of tobacco products and specifically the promotion of tobacco products in exchange for a gift or prize from another person. Because the law does not define “promotion,” however, it is unclear exactly what promotional actions are prohibited. The requirement that the gift or prize must come from another person also is unclear. We, nevertheless, interpret the law as banning promotion via promotional discounts, gifts, prizes, and rewards to consumers in conjunction with a tobacco product purchase.

As tobacco promotion via the above means appears to be banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

The law prohibits generally the promotion of tobacco products and specifically the promotion of tobacco products in exchange for a sponsorship from another person. Because the law does not define “promotion,” however, it is unclear exactly what promotional actions are prohibited. The requirement that the sponsorship must come from another person also is unclear. We, nevertheless, interpret the law as banning promotion via competitions associated with tobacco products or brand names whether requiring the purchase of a tobacco product or not.

As tobacco promotion via the above means appears to be banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The law does prohibit persons “having control over a medium” to advertise tobacco through such a medium. The law also prohibits generally the promotion of tobacco products. We interpret the law as banning advertising and promotion via direct person to person targeting of individuals.

As tobacco advertising and promotion via the above means appears to be banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

The law prohibits any person from “tak[ing] part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.” “Indirect advertisement” is defined in the rules as, among other things, “the use of a name or brand of tobacco products for marketing, promoting or advertising other goods, services and events.” We interpret the law as prohibiting tobacco advertising and promotion via non-tobacco products or services using tobacco brand names or carrying a brand logo or other brand indicia.

As tobacco advertising and promotion via the above means is banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

It is unclear whether the definition of “advertisement” encompasses all forms of tobacco advertising and promotion. The law does prohibit any person from “tak[ing] part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.” “Indirect advertisement” is defined in the rules as “the marketing of tobacco products with the aid of a brand name or trademark which is known as, or in use as, a name or brand for other goods and services.” We interpret the law as prohibiting tobacco advertising and promotion via tobacco products or services using non-tobacco brand names.

As tobacco advertising and promotion via the above means is banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

Advertising and promotion via toys that resemble tobacco products may fall within a general prohibition on promotion provided in COTPA Sec. 5(3) or may fall within a prohibition on indirect advertising if tobacco brand names or logos are utilized. It is not clear, however, that COTPA drafters intended to address this issue.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should incorporate the FCTC definition of “tobacco advertising and promotion” and make clear that tobacco advertising and promotion via toys that resemble tobacco products is banned.

Advertising and promotion via toys that resemble tobacco products may fall within a general prohibition on promotion provided in COTPA Sec. 5(3) or may fall within a prohibition on indirect advertising if tobacco brand names or logos are utilized. It is not clear, however, that COTPA drafters intended to address this issue.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should incorporate the FCTC definition of “tobacco advertising and promotion” and make clear that tobacco advertising and promotion via toys that resemble tobacco products is banned.

The law provides that “[n]o person shall under contract or otherwise promote or agree to promote the use or consumption of – (a) cigarettes or other tobacco products; or (b) any trade mark or brand name of cigarettes or other tobacco product in exchange for a . . . gift . . . .” Retailer incentive programs appear to fall within this provision.

As tobacco advertising and promotion via the above means is banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

G.S.R. 786(E) prohibits the display of brands of tobacco products, any form of tobacco product placement, or close-ups of tobacco products or packages. (In old films, such scenes shall be masked or blurred.) The law further provides that “[n]o person shall under contract or otherwise promote or agree to promote the use or consumption of – (a) cigarettes or other tobacco products; or (b) any trade mark or brand name of cigarettes or other tobacco product in exchange for a . . . gift . . . .” The law also provides a blanket prohibition on the display of any advertisement of cigarettes or other tobacco products and prohibits persons “having control over a medium” to advertise tobacco through such a medium. We interpret the above provisions to provide for a ban on the paid placement of tobacco products in TV, film, or other media.

G.S.R. 400(E) prohibits the display of the brands of cigarettes or other tobacco products or any form of tobacco product placement and the display of tobacco products or their use in promotional materials in online curated content (also referred to as over-the-top streaming content).

As tobacco advertising and promotion via the above means is banned, the law and implementing rules align with FCTC Art. 13 and the FCTC Art. 13 Guidelines.

The law largely prohibits the display of tobacco products or tobacco use in TV, film and online curated content (also referred to as over-the-top streaming content). Unpaid depiction is permitted in old films and TV programs, with “old” defined as those films that are certified by the Central Board of Films and those TV programs produced prior to the effective date of the rules. Unpaid depiction is also permitted in online curated content. Tobacco products may not be shown or used in new films or TV programs (with a minor exception for instances where there is a strong editorial justification). Under no circumstances may the brand of tobacco products be displayed or may there be a close up of tobacco products or packages. In new films and TV programs, any images in violation of this provision must be edited out by producers or broadcasters prior to screening. In old films and TV programs, such images must be masked or blurred.

Because there are some limited exceptions allowing unpaid depiction in old films, TV programs and online curated content, the law does not align with FCTC Art. 13 or the FCTC Art. 13 Guidelines. To align, all depictions of tobacco products or their consumption should be prohibited, except in the very limited circumstances where there is a legitimate journalistic, artistic, or academic expression or it is legitimate social or political commentary.

The law prohibits any person, under a contract or otherwise, from promoting or agreeing to promote the use or consumption of any tobacco product. Additionally, no person may promote the use or consumption of any trademark or brand name of any tobacco product in exchange for a sponsorship, gift, prize or scholarship. Other forms of contributions appear to be allowed.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should prohibit all contributions to any activity, individual, organizations or government that has the aim, effect, or likely effect of promoting a tobacco product or tobacco use directly or indirectly.

The law prohibits any person, under a contract or otherwise, from promoting or agreeing to promote the use or consumption of any tobacco product. Additionally, no person may promote the use or consumption of any trademark or brand name of any tobacco product in exchange for a sponsorship, gift, prize or scholarship. Other publicity of sponsorships appears to be allowed in accordance with general tobacco advertising restrictions.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should prohibit all tobacco sponsorship and publicity thereof.

G.S.R. 182(E) Sec. 3(g) bans the use of misleading descriptors on tobacco product packages or labels. To the extent that promotion via misleading descriptors occurs in other fora, it is not banned.

To align with FCTC Art. 13 and the FCTC Art. 13 Guidelines, the law should incorporate the FCTC definition of “tobacco advertising and promotion” and make clear that promotion by any means that are false, misleading, or deceptive or likely to create an erroneous impression about its characteristics, health effects, hazards, or emissions is banned.