Delhi court stays action against pan masala company for indirect tobacco advertising

In relief to a pan masala company, a Delhi court has stayed a notice sent to it by the Directorate General of Health Services (DGHS) for allegedly indulging in surrogate or indirect advertisement of tobacco products in violation of the law.

While allowing the company to carry out its advertisement campaign, Additional Sessions Judge Rajinder Singh said that even though the Cigarette and Other Tobacco Products (COTPA) Act prohibits display, advertisement, and sale of tobacco products, there is no specific prohibition regarding surrogate advertising.

The judge said that the sale of gutka is banned and in such circumstances, there is no reason for the company to indulge in a surrogate advertisement for the promotion of a product which it cannot sell in the country.

The DGHS claimed that in 2005, rules were laid down to ban the advertisement of tobacco products but the company carried out a surrogate ad campaign whereby the product 'Dilbagh Pan Masala' was advertised to promote tobacco products under the brand name 'Dilbagh'.

The directorate had issued a notice to the company on April 25, 2018, saying that it had put up a hoarding containing the indirect advertisement as brand promotion of tobacco products at Delhi's Dabri Flyover in 2018 to attract youngsters to trap them in tobacco habit, which is in violation of the COTP Act.

The health department said that 'Dilbagh' is a registered trademark for various tobacco products. This trademark is also registered for chewing tobacco, zarda, etc, it stated, adding that “the brand name of a tobacco product cannot be used for other products.”

The company engaged in the business of selling pan masala of the brand name 'Dilbagh', however, said that the advertisement is not in violation of any law.

It claimed that their pan masala is 100 per cent tobacco-free and that only pan masala having tobacco is covered by the COTP Act. It also sought damages to the tune of Rs 5,00,000.

The judge, while granting interim relief to the pan masala company, said the DGHS nowhere claimed that 'Dilbagh pan masala' contained any tobacco, nicotine, or any other banned substance.

“It can be summarised that the product in question is not alleged to be containing any tobacco or other banned substance. The sale of gutka is banned throughout the country. There is no reason or occasion for the plaintiff to advertise its tobacco products through 'indirect advertisement'. Accordingly, the plaintiff has a prima facie case,” he said.

The judge ordered, “The impugned notice dated April 25, 2018, under Section 5 of the COTPA Act is stayed till the final disposal of the suit. The plaintiff can carry out its advertisement campaign with regard to the product in question till the final disposal of the suit.”

He said that if the advertisement for the product in question is stopped during the pendency of this suit, it will cause a loss of revenue as well as goodwill which will be irreparable.

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