Indirect Advertisement Under Scrutiny: Delhi High Court Upholds Right to Advertise Non-Tobacco Products Bearing Tobacco Brand Names

In a significant judgment, the Delhi High Court has dismissed appeals filed by the Directorate General of Health Services against two private companies, ruling on the contentious issue of indirect advertisements for tobacco products under the Cigarettes and Other Tobacco Products Act (COTPA). The judgment clarifies the legal position on using tobacco brand names for advertising non-tobacco products.

The Court, presided over by Hon'ble Mr. Justice Dharmesh Sharma, decided on the appeals concerning the alleged surrogate advertisements of “DILBAGH Pan Masala” and “VIMAL Elaichi”, which are registered under tobacco classes but are currently marketed as non-tobacco products.

Justice Sharma, in his judgment, remarked, “The use of word ‘or’ after pan masala and before any ‘chewing material’ prima facie signifies that it is used as a disjunctive word” (Para 24). This observation was crucial in determining whether these advertisements fell within the ambit of indirect advertising prohibited under Section 5 of COTPA.

The judgment highlighted the Intricate balance between the right to conduct business and public health concerns. Justice Sharma stated, “The respondent/plaintiff has a fundamental right to carry on business… for the sale and marketing of pan masala sans tobacco so long as it has constitutional sanction” (Para 28). This statement underscores the Court’s approach towards balancing commercial freedoms with health regulations.

The Directorate General of Health Services had challenged the advertisements based on the grounds that they amounted to surrogate advertising for tobacco products. However, the Court found that since the products in question did not contain tobacco, the advertising did not violate the provisions of COTPA.

The decision has significant implications for the advertising industry and companies dealing in products with names similar to tobacco brands. It sets a precedent for understanding the scope of indirect advertisements and surrogate advertising under the current legal framework.

The Court also addressed the issue of jurisdiction and the applicability of the Civil Procedure Code in such matters, reaffirming the Civil Courts’ authority to adjudicate on these issues unless expressly or impliedly barred by any law (Paras 13-14).

Date of Decision: 24 January 2024

Directorate General Of Health Services VS Som Pan Product Pvt. Ltd.