As fast commerce platforms gradually replace local commerce platforms carpeted (cigarette stores), much remains unclear about the laws governing the sale of tobacco products online. In India, the Ministry of Health and Family Welfare (MoHFW) regulates the sale and advertisement of tobacco through the Cigarettes and Other Tobacco Products (Prohibition of Advertising and Regulation of Trade, Production, Supply and Distribution) Act 2003 (COTPA) which prohibits tobacco producers, distributors and suppliers from advertising tobacco products in all media. They are also prohibited from selling cigarettes to consumers under the age of 18.

The platforms appear to be taking steps to comply with the regulations, by not displaying photos of tobacco products and asking users to declare that they are not 18 years old. However, many questions remain about whether listing a product online would be considered advertising. It is also unclear whether age declarations are an effective mechanism to prevent underage consumers from purchasing tobacco products and what that mechanism would look like, especially as the government implements India’s 2023 law on the protection of digital personal data. When it is easier to buy tobacco products, one must ask whether they are contributing to the proliferation of tobacco in India.

Regulations that control the sale of tobacco online:

When asked about tobacco regulation, Shahana Chatterji, partner in the public policy and regulatory affairs team at Shardul Amarchand Mangaldas & Co, explained that distinct legal frameworks operate simultaneously to regulate online tobacco sales: Consumer Protection Act 2019, Legal Metrology Act2009 and COTPA.

“And the idea behind a lot of the existing framework is that e-commerce platforms are simply platform providers. These are not necessarily the entities that actually carry out the sales transaction, except in the case of inventory models where the platform may also be the seller,” she explained. Furthermore, she added that existing e-commerce regulations provide rules regarding the type of disclosure platforms must make about the products they sell. “If you are an e-commerce platform, you must provide certain information about the products listed on your platform. But the content of the disclosure will come from the sellers themselves, with the platform generally having to ensure that these disclosures are displayed appropriately,” she explained.

For tobacco in particular, COTPA requires platforms to ensure that they do not sell their products to anyone under the age of eighteen, nor do they sell them near educational establishments. . “In the context of cigarette sales, e-commerce platforms rely on things like customer disclosures and confirmations regarding their age,” Chatterji explained. She added that since the government had initially notified COTPA, it intended to apply it to physical stores, and then have it adopted for digital platforms as well.

Is putting the product online considered advertising?

Under COTPA, tobacco producers, distributors and suppliers cannot advertise the product in any medium. When asked if these restrictions meant that platforms could not put tobacco products on sale, Chatterji explained that despite the general restrictions on advertising such products under the law, simply putting a product for sale does not constitute advertising. “Regardless, from what I have seen, fast commerce apps mostly comply with both the general obligations of the Consumer Protection Framework and the specific obligations of COTPA. They don’t make the product very easily available on their platform and even accept certain user declarations (like being over 18, etc.),” she said.

As mentioned earlier, fast commerce platforms list tobacco products with only their name, without a photo of the product. The photo section of the product shows a white box with the words “smoking cigarettes is dangerous for your health” written on it. When she informed Chatterji of this, she said it was “an absolutely risk-free interpretation of the law, where you don’t even have a physical representation of the product.” She added that such an announcement should not be interpreted as advertising. However, even without such a strict interpretation of the law, a simple announcement of a product should not be considered advertising, but rather an offer to sell.

Compliance requirements are stricter for fast trade:

COTPA also requires sellers of tobacco products to ensure that they do not sell their products to consumers under the age of 18. To do this, platforms have adopted different approaches ranging from simple declaration to age verification using government IDs to delivery. When asked if simple statements risk exposing minor children to tobacco products, Chatterji responded that there is a higher level of traceability for online tobacco sales than for sales in physical stores . “If there is an e-commerce platform that sold a tobacco product to someone who falsely claimed they were over 18, it is more traceable and detectable,” she explained. As such, it is in the best interests of platforms to ensure compliance.

On the other hand, it cannot be said with certainty whether physical stores sold tobacco products to a child. “If they haven’t kept records, which most of them have, it’s very difficult for a person to determine in the offline world whether this (age control) mechanism works or not,” Chatterji said. “Offline implementation tends to be much weaker than online implementation of the same law,” she added.

(Note: We sent questions to Swiggy, Zomato and Zepto asking how they ensure good age management. Of the three, Zepto did not acknowledge receipt of the email, Zomato said that (he would not be able to participate and Swiggy has not yet responded to confirm his position.)

The DPDPA challenge:

Chatterji believes that complying with age verification may become more difficult once the government is up and running. Digital Personal Data Protection Act 2023 (DPDPA). She explained that the DPDPA also requires data controllers not to delete material or impersonate another person while providing personal data. This would mean that a data fiduciary can rely on information provided by a principal.

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By law, if a user signs up for a service and is able to meet verifiable parental consent requirements and declare themselves to be over 18, platforms can agree that that information is accurate, Chatterji said .

Regulate tobacco consumption at the point of sale:

In September this yearThe Ministry of Health and Family Welfare (MoHFW) amended the COTPA rules and asked platforms to display anti-tobacco health messages as soon as someone opens a platform and also when someone starts watching a movie or TV show. They also asked platforms to display static health warnings when someone smokes during movies and TV shows. At MediaNama discussion Regarding these health warnings, some wonder whether the regulation of streaming platforms is onerous and whether it would not be better to fight against tobacco consumption at the point of sale.

Film producer Rahul Mittra wondered what it would be like if the government asked people to watch audio-visual disclaimers every time they buy a cigarette. “And when he is halfway through a cigarette, he cannot take the next puff because he will then have to listen to other audiovisual content that cannot be deactivated and only after that he will be able to take a puff,” he added, adding: relying on the COTPA Rules. He said he hoped the government would implement the measure, adding that it would upset many smokers.

How other jurisdictions regulate tobacco use:

Unlike India, some jurisdictions like Thailand, Austria, Brazil Belgium and the United Arab Emirates completely prevent retailers from selling tobacco online. In the area of ​​physical tobacco sales, it is interesting to note that Thailand is taking a very similar approach to that taken by fast trading platforms in India. The country requires tobacco sellers adopt neutral packaging for tobacco products without color, branding or promotional message. Additionally, retailers keep tobacco products behind the cash registers in stores. This is similar to warning BlinkIt Lit shows when someone is searching for a tobacco product, acting as a deterrent for anyone looking to purchase a tobacco product.

The only major difference here is that unlike physical stores, users of e-commerce services do not need to interact with a person and actively request the product. Instead, they can go through the warning screens and make the purchase in a more convenient and less deterred way. One demographic that particularly suffers from physical disincentives is women. A spokeswoman we spoke to told us women choose to buy cigarettes online to avoid social stigma. “It (fast trading) saves women some embarrassment, making it easier for them to buy cigarettes online instead of going to a tapri shop,” Mansi (name changed for privacy reasons) told me ). She mentioned that people, including cigarette salesmen, judge women for smoking. She added: “Some shopkeepers even told me bluntly that smoking would reduce my chances of having babies. »

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