THE LEGALITY OF DEPICTING CIGARETTES AND ALCOHOL IN COMMERCIAL PHOTO SHOOTS: A LEGAL PERSPECTIVE

• Introduction:

In the ever-evolving world of advertising, where images have the power to influence public perception and consumer behaviour, the use of models holding cigarettes or alcohol in commercial photo shoots raises important legal and ethical questions. This article examines whether such depictions are permissible under Indian law when the intention is not to promote cigarette or alcohol brands directly, but rather to capture a creative or lifestyle expression.

• Legal Framework Governing Tobacco and Alcohol Depictions in India:

India has established a strong legal framework aimed at controlling the advertising, promotion, and consumption of tobacco and alcohol products. The laws are designed not only to regulate commercial conduct but also to protect public health by discouraging the use of harmful substances.

1. The Cigarettes and Other Tobacco Products Act, 2003 (“COTPA”)

COTPA, is the principal legislation that governs the advertisement, sale, and consumption of tobacco products in India. Under Section 5 of COTPA, all forms of direct and indirect advertisement of cigarettes and other tobacco products are prohibited. The law explicitly bans promotional activities that encourage tobacco consumption in any manner, whether through print, electronic media, or sponsorships. The associated Packaging and Labelling Rules, 2008, further tighten this restriction by mandating that no images, messages, or depictions on tobacco product packaging should directly or indirectly promote tobacco use or undermine the mandatory health warnings. The inclusion of any matter inconsistent with public health messaging is also barred.

2. The Cable Television Networks (Regulation) Act, 1995 (“Cable Network Act”)

The Cable Network Act and its associated Rules impose an advertising code that prohibits the direct or indirect promotion of cigarettes, tobacco products, alcohol, wine, liquor, or other intoxicants. This regulation extends to any form of advertisement broadcast on television, with the objective of preventing the glamorization of harmful substances. Rule 7(2) of the Cable Network Act explicitly states that advertisements must not promote, directly or indirectly, the consumption of tobacco or alcohol, reflecting the government’s commitment to restricting such portrayals in mainstream media.

3. The Consumer Protection Act, 2019 (“Act”)

The Act protects consumers from unfair trade practices and misleading advertisements. Sections 2(1)(r), 10, and 21 of the Act empower authorities to take action against advertisements that could deceive consumers or encourage harmful behaviours, including the consumption of tobacco and alcohol.

4. The Advertising Standards Council of India (ASCI) Code of Self-Regulation

The ASCI plays a critical role in maintaining ethical advertising standards through its Code of Self-Regulation (“Code”). The ASCI defines an advertisement broadly as any paid-for communication that aims to influence public opinion or behaviour. Chapter III of the Code sets out guidelines to ensure that advertisements do not undermine public health or promote socially undesirable practices. The ASCI specifically advises against advertisements that directly or indirectly encourages the consumption of tobacco or alcohol. This includes ensuring that no identifiable packaging or branding of such products is visible and that no monetary benefit has been derived from tobacco or alcohol companies for the depiction.

• The Legal Stand on Non-Endorsement Depictions:

The crux of the issue arises when a commercial photo shoot features a model holding a cigarette or alcohol, not as part of a product advertisement but as a creative element of the image. Does such depiction constitute an indirect advertisement or an artistic expression? The legal position suggests that:

1. No Identifiable Packaging: There should be no visible brand names, logos, or packaging of tobacco or alcohol products in the shoot.
   
2. Creative Expression: The depiction must be framed as a form of artistic or lifestyle expression rather than an endorsement of tobacco or alcohol use.
   
3. No Monetary Benefit: There should be no financial relationship or sponsorship involved with any tobacco or alcohol brand.
   
4. Health Considerations: The image must not glorify, normalize, or trivialize the consumption of tobacco or alcohol.
   
5. Disclaimers: Where possible, a clear disclaimer should state that no tobacco or alcohol promotion is intended.

• Judicial Precedents: The Balancing Act Between Freedom of Expression and Public Health:

The Indian judiciary has, on multiple occasions, had to grapple with the delicate balance between upholding freedom of expression under Article 19(1)(a) of the Constitution of India and safeguarding public health under Article 19(2) of the Constitution of India.

1. Mahesh Bhatt v. Union of India (2009)

In this landmark case, the Hon’ble Delhi High Court addressed the constitutional validity of rules that sought to ban smoking scenes in films and television. The court acknowledged that while smoking is an undesirable act, it remains a reality of life and is not outlawed. The judgment made several key observations:

• Artistic Freedom: The court upheld the right of filmmakers and creators to depict smoking as part of artistic expression, provided it does not glamorize or justify the act.
  
• Reasonableness: The court held that an outright ban on smoking depictions was unreasonable and violated the constitutional guarantee of freedom of speech.
  
• Public Health: The court balanced this freedom by affirming that discouraging smoking through appropriate disclaimers and public health messages is a legitimate state interest.

2. Aveek Sarkar & Ors. v. State of West Bengal & Ors. (2014)

In this Hon’ble Supreme Court judgment reaffirmed the principle that artistic expression, including depictions of sex, nudity, or morally controversial behaviour, cannot be stifled unless it crosses the threshold of obscenity or poses a tangible harm to public decency or morality. The court emphasized:

• Community Standards: Obscenity must be judged based on contemporary community standards and the average person’s sensitivity.
  
• Purpose and Context: Depictions intended for artistic, literary, or socially relevant purposes must be distinguished from content aimed solely at titillation or commercial exploitation.

• Application to Commercial Photo Shoots:

Applying these legal principles to the context of commercial photo shoots involving models with cigarettes or alcohol, several key takeaways emerge:

1. Intent Matters: If the shoot’s primary purpose is creative storytelling, fashion, or lifestyle depiction without any promotional intent, it may fall under the ambit of protected expression.
   
2. No Glorification: The depiction should not romanticize, normalize, or encourage the consumption of harmful substances.
   
3. Absence of Branding: No visible logos, brand names, or packaging associated with tobacco or alcohol should appear in the image.
   
4. Legal Safeguards: Including disclaimers and ensuring no indirect financial ties to alcohol or tobacco brands can further shield the shoot from legal scrutiny.
   
5. Public Health vs. Free Speech: While artistic freedom is protected, the content must respect the prevailing public health objectives and ethical advertising standards.

• Case-by-Case Evaluation: No One-Size-Fits-All:

The legality of any such depiction ultimately requires a case-by-case evaluation considering:

• The medium of publication (print, digital, television).
• The intended audience.
• The context and visual narrative of the image.
• Any accompanying text, captions, or messages.

For instance, a high-fashion editorial in a lifestyle magazine showing a model holding a cigarette as a stylistic prop may not attract the same legal consequences as a social media post by an influencer that could be interpreted as promoting smoking.

• Ethical Considerations Beyond Legal Compliance:

Even where legal compliance is achieved, brands and creators must consider the ethical implications of their choices. The rising awareness of social responsibility in advertising means that public backlash can occur even in the absence of legal violations. Many global brands now voluntarily adopt strict no-tobacco and no-alcohol depiction policies to align with corporate social responsibility and public health concerns. Creators are increasingly called upon to weigh the artistic merits of such depictions against their potential influence on impressionable audiences.

• Conclusion: Navigating the Legal and Ethical Tightrope:

The depiction of models holding cigarettes or alcohol in commercial photo shoots sits at the intersection of creative expression, legal regulation, and social responsibility. While Indian law does not impose an outright ban on such imagery, it places strict limitations to prevent indirect promotion and protect public health.

Creators and brands must tread carefully, ensuring that their content:

• Respects legal prohibitions on advertising and promotion.
  
• Upholds the right to artistic expression without glorifying harmful behaviours.
  
• Demonstrates ethical awareness of the societal impact of their imagery.

As the lines between art, commerce, and social influence are blur in the digital age, thoughtful compliance with both the letter and spirit of the law will remain essential.