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Synopsis

In a recent judgment, the Madurai Bench of the Madras High Court highlighted the urgent crisis posed by tobacco products, especially among school children.

The bench of Justice D. Bharatha Chakravarthy addressed the disturbing trend of students becoming addicted to tobacco, specifically the widely available product, “Cool Lip". Court noted an alarming rise in cases, with products seized in large quantities around Tamil Nadu’s schools.

The high court noted that children were frequently using Cool Lip, a tobacco product packaged like a candy and flavored to appeal to young people. The product is easily concealed and ingested, causing dependency among children who often use it throughout the day, including during school hours. Court highlighted that teachers reported struggles with students exhibiting aggressive, indifferent, or disruptive behavior linked to nicotine addiction, with some even stealing to support their habit.

Court underscored that targeting minors with addictive substances not only violates their rights but also threatens the societal fabric. It cited Article 47 of the Constitution, which mandates the state to curb harmful substances. Court also drew on Section 77 of the Juvenile Justice Act, which prescribes imprisonment for those giving intoxicating substances to children.

Justice Chakravarthy emphasized that these actions constitute exploitation, jeopardizing children’s health, education, and future potential.

In addressing the legislative framework, the judge referred to the Cigarettes and Other Tobacco Products Act (COTPA), which prohibits the sale of tobacco within 100 yards of educational institutions. He highlighted that Tamil Nadu had implemented strict regulations, including banning nicotine-containing products. Under the “Drug-Free Tamil Nadu” initiative, joint task forces from police and health departments conducted extensive raids, resulting in the closure of numerous shops and substantial fines for violations. He also underscored the importance of proactive monitoring and awareness campaigns targeting educational institutions, supported by measures like mobile app tracking and community reporting lines.

However, Justice Chakravarthy urged collaboration between government and educational institutions to curb the influence of tobacco among youth. He called on the Ministry of Education to support initiatives such as designating tobacco-free zones around schools and organizing awareness programs.

With children as prime targets of this insidious trade, the court ordered firm action against any violators and underscored the need for coordinated community, law enforcement, and educational efforts.

The court directed Prosecuting Agencies:

- When tobacco products are seized near schools, offenders selling or attempting to sell to children must be charged under Section 77 of the Juvenile Justice Act, 2015, or S.77 read with BNS, and under Section 59 of the Food Safety and Standards Act, 2006.

- Liability under Section 27 of the Food Safety and Standards Act, 2006, must extend to manufacturers, distributors, sellers, and, in the case of corporate entities, involved employees and directors. As per the Madras High Court's Jaiswal Products case, individual liability will be determined at trial. Additional provisions apply if statutory warnings are missing from product packaging.

The court further directed the State government:

- Fully implement the Tobacco-Free Educational Institution (ToFEI) Guidelines.

- Conduct biannual oral health checks in government and private schools, privately counseling parents and students if tobacco/nicotine stains are detected.

- Establish Child Tobacco Cessation Centers in each district, staffed by specialists to counsel and treat addicted children.

- Require school headmasters to support treatment and follow-up, promoting the child's cessation of tobacco use.

- Create culturally sensitive treatment methodologies in consultation with child psychologists.

- Form a two-member Tobacco Monitoring Committee in each school, comprising a teacher and PTA/community volunteer, to inspect premises and report tobacco use or sales near schools to authorities.

- Develop a mobile app for committee reports or continue using the provided WhatsApp number, and establish a toll-free reporting line for the public.

- Schools must comply with ToFEI by displaying boards, forming monitoring committees, maintaining compliance records, and self-assessing adherence.

- The School Education Department should consider issuing a circular for discreet bag inspections to detect tobacco without impacting student morale.

- Collaborate with health and cancer hospitals to provide virtual awareness programs on the effects of tobacco, using live demonstrations or videos, to be conducted at least annually.

- Require periodic reporting from the School Education Department and Prosecution Agencies on compliance, rehabilitation data, and relevant statistics to the Drug-Free Tamil Nadu Mission’s authorities.

Moreover, court noted that given that tobacco products like Cool Lip contain high nicotine levels (over 1.7% as per test reports) and are classified as ‘unsafe food’ under the Food Safety and Standards Act, 2006, they should not be deemed safe in some states while banned in others. It highlighted that under Section 86 of the Act, the Central Government holds the authority to direct state governments to enforce the Act’s provisions, which states are required to comply with.

Court, accordingly, directed that as such, the State Governments are bound to comply with the directions and therefore the Central Government shall consider the grave nature of the situation and issue further directions under Section 86 of the Food Safety and Standards Act, 2006.

The wide use, immense popularity and appeal to the children and the unique nature of these new dipping/filter tobacco products shall be taken into consideration, it ordered. 

A bail petition was filed by a man arrested for possessing 27 packets of "Cool Lip" tobacco products, which are banned in Tamil Nadu.

While considering the petition, court suo motu impleaded the Ministry of Health and Family Welfare, the Secretary to Government, School Education Department, and the Commissioner of Food Safety and Drug Administration in Tamil Nadu to deal with the broader issue of tobacco use among children. 

In September, court had allowed interim bail to the petitioner, and, through the present order, court made the interim bail absolute and directed to be deemed to be the regular bail.

Accordingly, court disposed of the petition. 

Case Title: Aunestraja v. State and Others