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Comments on India’s Competition (Amendment) Act, 2023

Dear Competition Commission of India,

In order to follow through on your call for stakeholder groups to provide regulatory comments on the updates to the Competition Act, we want to offer thoughts from a consumer perspective. For reference, the Consumer Choice Center is a globally consumer advocacy group championing policies that are fit for growth, promote tech innovation, and enshrine lifestyle freedom, all the while promoting consumer choice.

In reviewing The Competition (Amendment) Act of 2023, we add the following:

Proposed Section 29A

With the proposed amendment in Section 29A, we would insert the phrase “and on consumer choice” after the phrase “an appreciable adverse effect on competition,” in order to more precisely adhere to a limited competition and antitrust definition that elevates the effect to consumers and prices, rather than “competition”.

Proposed Section 18

With the proposed amendments in Section 18, we would insert “consumer choice” to come before “competition,” again demonstrating the usefulness of consumer choice and pricing comparisons as a more accurate rubric for determining competition.

Overall, we remain positive to the Competition Commission’s updated guidelines on mergers and general antitrust law. As India’s digital economy grows and continues to offer unique goods and services to Indian consumers, we believe all Central Government agencies should also adhere to a competition policy that upholds consumer choice and regulatory barriers that may be impeding that, and perhaps leading to higher prices or reduced competition. Impact to consumers is key.

Defining the adequate level of competition is an impossible task for any government agency or department, and should best be left to consumers who will better determine market size and performance. Where regulatory barriers exist, or where fraud and deception exist, should be a more targeted focus for competition regulators than only concerns for competition — domestic or otherwise.

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Embrace the Smart Legalisation of Cannabis

Marijuana or cannabis is considered to be a sacred plant in Hindu mythology. Its stress-relieving properties were mentioned in the Atharvaveda (4th Veda), one of the four ancient scriptures. It is considered to be one of ‘five sacred plants’ that are generally utilised to attain trance and carry out rituals and other religious activities dating back to 2000-1400 B.C. 

Cannabis holds a significant value in Hindu culture and it is often associated with the lord Shiva (god of destruction). Bhang is generally offered to Lord Shiva and is consumed ritually by his disciples and devotees (yogis and naga sadhus) who smoke its leaves and resin from a special instrument known as Chillum. 

The consumption of marijuana has spiritual significance during the festival of Maha Shivratri and Holi. The consumption of marijuana leaves (Bhang) is considered appropriate during these festivals as it is believed that bhang purifies the elixir of life produced by Shiva from his body which purifies the soul. 

Cannabis is classified as a physio pharmaceutical drug sourced from cannabis plants and primarily used as medicine or for recreational purposes. The versatility of this drug allows it to be consumed in various ways such as being grounded and mixed in cigarettes or in a bong.

A much more concentrated form popular among youth is known as hashish. A vaporizer machine distils the cannabis into a storage unit and produces a vapour that can be inhaled by the user which is common practice in western culture

The reason for cannabis being severely regulated or outright banned is due to the core psychoactive element known as Tetrahydrocannabinol (THC). This component is responsible for the euphoric sensation experienced when the drug is inhaled.

STEP TOWARDS ITS REGULATION 

The British regime took the initial steps to regulate cannabis in India. The laws were enacted by the British levying taxes on cannabis and its derivative forms such as charas and Bhang. These taxes were levied in the pretext of “good health and sanity” for the natives but the British refrained from criminalizing its usage.

In 1961 the convention of UNCND categorised cannabis and its derivatives as schedule IV, driving criminalisation on a global scale. After the initial opposition, the Indian government led by then prime minister, Rajiv Gandhi, introduced the Narcotic Drugs and Psychotropic Substances Act in 1985 that served as the final nail in the coffin for the marijuana trade in India. However, the Act kept the usage of seeds and leaves out of its purview due to its spiritual significance, hence successfully avoided the stigma of being labelled as bootlegged.

The act permitted the cultivation of cannabis strictly for industrial purposes such as hemp production or horticulture. Recently, cannabis has been acknowledged as a prominent source of high-value oil, fibre and biomass according to the National Policy on Narcotic Drugs and Psychotropic Substances.

A STEP FORWARD 

The recent decision of U.N to reschedule marijuana has been backed by a majority of member states, including India. The decriminalisation drive has been initiated by various NGOs across the nation, in the form of movements led by youth and filing petitions to challenge the stringent drug laws in India. Non-profit organisations such as The Great Legalization Movement India aim to decriminalise the use of cannabis in India for commercial and medical purposes.

The group under its decriminalisation drive challenged the NDPS Act in 2019. The writ petition was filed by them in the high court of Delhi seeking legalisation of cannabis under the act. The Act was challenged on the grounds of violating several provisions of the Constitution of India such as Article 21 providing the right to life and personal liberty. This is the biggest action taken against the criminalisation of cannabis on Indian soil.

This paradigm shift has caused several activists and public leaders to begin voicing their support towards cannabis legalisation. In 2018, Uttarakhand allowed hemp cultivation for commercial purpose and also granted a license to the Indian Industrial Hemp Association (IIHA) to grow hemp over 1000 hectares of land, thus becoming the first state to take a radical step towards decriminalisation.  Manipur is known for its high-quality cannabis, and recently the state government has acknowledged its brimming potential as the main driver of the state economy. The state government is devising plans for legalising cannabis for clinical purpose by involving new emerging start-ups in its legalisation plan.

As the country began embracing the medical and therapeutic properties of cannabis, numerous start-ups emerged focusing on the therapeutic aspect of marijuana such as Odisha based HempCann Solutions which opened India’s first Cannabis Clinic in Bangalore known as Vedi Herbal. The clinic prescribes tablets and oils infused with marijuana in order to treat various health ailments such as stress, anxiety and sex-related problems. The license has been issued to the clinic to commence its operation in all parts of the country, a massive step forwards toward the legalisation of cannabis in the country.

The future of cannabis in India remains uncertain, but these initiatives give a ray of hope to the youth working towards the common goal of decriminalising cannabis in new and progressive India.

Originally published here.

The global organizations and populists who aim to seize COVID vaccine tech and IP

When Donald Trump claimed in September 2020 that every American would have access to vaccines by April 2021, his comments received scorn. The Washington Post said his claims were “without evidence,” CNN quoted health experts who said it was impossible, and The New York Times claimed it would take another decade.

Now, a year into this pandemic, nearly half of the eligible population has received at least one vaccine dose in the U.S., and distribution has been opened to every American adult.

Operation Warp Speed, which invested tax dollars and helped reduce bureaucracy across the board, has contributed to what has truly been a miraculous effort by vaccine firms.

While Trump’s proclamations eventually become true and the question of vaccine ability has been settled, there is now pressure on the Biden administration to turn over domestic vaccine supply to countries with skyrocketing cases.

On Sunday, the U.S. declared it will send additional medical supplies to India, currently experiencing the largest global spike in cases.

But at international bodies, countries and activist groups are petitioning for far more: they want to force biotech companies to waive intellectual property rights on vaccines and COVID-related medical technology.

Along with nearly 100 other countries, India and South Africa are the architects of a motion at the World Trade Organization called a TRIPS Waiver (Trade-Related Aspects of Intellectual Property Rights).

If the waiver is triggered, it would ostensibly nullify IP protections on COVID vaccines, allowing other countries to copy the formulas developed by private vaccine firms to inoculate their populations and play into the hands of future governments more hostile to private innovation.

This week, U.S. Trade Representative Katherine Tai met with the heads of the various vaccine makers to discuss the proposal, but it is uncertain if the Biden administration will support the measure at the WTO.

While many companies have voluntarily pledged to sell them at cost or even offered to share information with other firms, this measure would have more far-reaching implications.

This coalition seeking the TRIPS waiver includes Doctors Without Borders, Human Rights Watch, and World Health Organization Secretary-General Tedros Adhanom Ghebreyesus, who first backed this effort in 2020 before any coronavirus vaccine was approved.

They claim that because COVID represents such a global threat and because western governments have poured billions in securing and helping produce vaccines, low and middle-income countries should be relieved of the burden of purchasing them.

Considering the specialized knowledge needed to develop these vaccines and the cold storage infrastructure required to distribute them, it seems implausible that any of this could be achieved outside the traditional procurement contracts we’ve seen in the European Union and the U.S.

That said, rather than celebrating the momentous innovation that has led to nearly a dozen globally-approved vaccines to fight a deadly pandemic in record time, these groups are trumpeting a populist message that pits so-called “rich” countries against poor ones.

Intellectual property rights are protections that help foster innovation and provide legal certainty to innovators so that they can profit from and fund their efforts. A weakening of IP rules would actively hurt the most vulnerable who depend on innovative medicines and vaccines.

If the cost of researching and producing a COVID vaccine is truly $1 billion as is claimed, with no guarantee of success, there are relatively few biotechnology or pharmaceutical companies that can stomach that cost.

BioNTech, the German company headed by the husband-wife team of Uğur Şahin and Özlem Türeci that partnered with Pfizer for trials and distribution of their mRNA vaccine, was originally founded to use mRNA to cure cancer.

Before the pandemic, they took on massive debt and scrambled to fund their research. Once the pandemic began, they pivoted their operations and produced one of the first mRNA COVID vaccines, which hundreds of millions of people have received.

With billions in sales to governments and millions in direct private investment, we can expect the now-flourishing BioNTech to be at the forefront of mRNA cancer research, which could give us a cure. The same is true of the many orphan and rare diseases that do not otherwise receive major funding.

Would this have been possible without intellectual property protections?

Moderna, for its part, has stated it will not enforce the IP rights on its mRNA vaccine and will hand over any research to those who can scale up production. The developers of the Oxford-AstraZeneca vaccine have pledged to sell it at cost until the pandemic is over.

While this should smash the narrative presented by the populists and international organizations who wish to obliterate IP rights, instead they have doubled down, stating that these companies should hand over all research and development to countries that need them.

If we want to be able to confront and end this pandemic, we will continue to need innovation from both the vaccine makers and producers who make this possible. Granting a one-time waiver will create a precedent of nullifying IP rights for a host of other medicines, which would greatly endanger future innovation and millions of potential patients.

Especially in the face of morphing COVID variants, we need all incentives on the table to protect us against the next phase of the virus. 

Rather than seeking to tear them down those who have performed the miracle of quick, cheap, and effective vaccines, we should continue supporting their innovations by defending their intellectual property rights.

Yaël Ossowski (@YaelOss) is deputy director of the Consumer Choice Center, a global consumer advocacy group.

Michael Bloomberg turns the dial on Indian health policy

By Shrey Madaan

Large sodas, alcohol, vaping devices and the Internet are just a few of the things the World Health Organization wants to keep us away from.

Lawmakers say it is safeguarding its subjects from evil elements in order to protect them. But many critics also believe Indian sensibilities are composed of graver stuff and are concerned about India’s transition to a “Nanny State”.

The Nanny State is the idea of a government or authorities behaving too protective for their constituents, i.e interfering with their personal choice and hindering their liberty and right to life. 

This is something we have seen Bloomberg Philanthropies try to establish here in India. For years, Bloomberg Philanthropies has bestowed billions of dollars to global issues close to the billionaire’s heart such as education, environment and public health, transforming Bloomberg into a sort of flamboyant private government. 

This is evident when he began the Anti-Tobacco Campaign in India, causing a drastic boom on tobacco products, laying a strong foundation for intellectual precision on imposing bans on vaping devices and persuading the Health Ministry to adopt larger health warnings on various consumer goods

Thanks to his Nanny State mission, Michael Bloomberg was named as World Health Organisation’s “Global Ambassador For Non-communicable Diseases and Injuries,” a mission funded by himself for many years.

While it’s noteworthy to appreciate Bloomberg’s recent expenditures into Covid-19 research, his prolonged mission to spread the nanny state overseas via the soft power of the WHO is not only paternalistic but derogatory as well. This emphasis on soft power and negligence towards substantive reforms highlights the inefficiency of WHO. 

Their focus on soft power is evident from foisting soda taxes, imposing bans on e-cigarettes and vaping devices in third world countries and initiating Anti-Tobacco campaigns like here in India. Because the WHO and Bloomberg put so much emphasis on these various issues, it is not too difficult to draw a line between those activities and the failure of the WHO to help contain the initial outbreak of COVID-19 in China. 

These lapses in Covid response, together with WHO detracting from its mission to safeguard us from pandemics, is a principal reason for opposing the global Nanny State expansion by people like Bloomberg. The recent channelling of funds into Indian non-profit agencies in exchange for a strong lobby against tobacco products and safer alternatives have called the credibility of Billionaire’s influence in question and has brought them under scrutiny. 

In response, the Indian government increased surveillance of non-profit groups, stating their actions to be against national interests. The Indian government tightened the scrutiny of NGOs registered under the Foreign Contribution Regulation Act (FCRA). The action has been opposed by critics claiming the use of foreign funding law by the government as a weapon to suppress non-profit groups concerned about social repercussions of Indian economic growth. 

The note drafted by the Home Ministry’s Intelligence wing raised concerns about targeting Indian businesses and its aggressive lobby against them. The three-page note acknowledged Bloomberg’s intention to free India from tobacco and other products but also elaborated upon the significance of the sector bringing revenue of 5 billion dollars annually for the governments, and employment generated for millions. The note also highlighted the negative implications of aggressive lobby against the sector and how it threatens the livelihood of 35 million people. 

The steps to promoting soft power Nanny State are not only appreciated but are aided by WHO. That is where WHO is pushing us into the abyss. Instead of providing doctors and health care workers with necessary supplies and honing the health care systems, the opulence of Bloomberg has commissioned the WHO as a “Global Police” enforcing taxes and bans on a plethora of consumer products around the world. 

Bloomberg’s Nanny Missions emerged as a grim threat to the health care sector, making the current pandemic more threatening. Let us hope we do not feel the repercussions here at home. 

Originally published here.

The Need for Competition in India’s Telecom Industry

Explaining the Indian Telecommunication industry and the complexity behind competition existence?

The Indian telecommunication industry has experienced exponential growth and development in the past two decades. Liberalization and regulatory reforms allowed the sector to accept investments from both domestic and foreign investors.

The non-restrictive policy of the government in the 1990s allowed the inflow of cash for the sector to flourish. Private players were allowed in the market after a process of establishment of norms and regulations vital for the growth of the sector.

This was done as a part of the Liberalisation-Privatisation-Globalisation policies that the government undertook to overcome the fiscal crisis and balance of payment issues in 1991. The institution of the Telecom Regulatory Authority of India was established by the government to reduce its interference in deciding the tariffs and policies.

Towards the 20th century, the government was more inclined toward reforms and liberalism. This brought more private players and foreign investors to the Indian market. Furthermore, the license fees were greatly reduced that allowed every middle-class family in India to afford a cellphone, and thereby input more surplus to the entire telecom sector. In the Indian telecom sector during the late 90s and early 20s,  the liberal policies became paramount, I would quote this as what Prof Eli. M. Noam referred to as, “the centrality of telecommunication infrastructure is a country’s economic and social life.” 

Telecom performance reports showed that about 10-14 mobile providers were existing in the country during the time and at least 5-6 providers were providing services in each of the connected areas. The competitive forces exerted by these players aided the adoption of wireless services and also helped reduce tariffs throughout. 

Despite the major policy initiatives of the past, the telecom sector is now on the verge of collapse. After years of growth, the sector is witnessing a fall due to the commercial operation of Reliance Jio. The change in tariff rates and reduction of data charges by Reliance Jio changed the economics of many telecom players. This facilitated their exit from the telecom sector.

The declining user base and increasing adjusted gross revenue made it difficult for healthy competition to equivalently exist among players. Low revenues, high taxation policies, and huge investments on spectrum and infrastructure have been causing dire trouble to the industry thereby impeding competition in the Indian telecom market.

How can one bring back competition in a scenario of restrictions and the existence of a soon-to-be-monopolized telecom sector? 

The companies are being pushed by the regulatory bodies to align the prices in line with the costs of production, and this makes it difficult for competition to exist. In a digital India, the telecom sector needs survival, and for this, we need three players who are not on the brink of a dire financial crisis. The sector needs decentralization of purchasing and decision power to regulate more efficiently. The profit margins are decreasing and telcos need to level up the information and communications information to adapt to a digital transformed way. This can be done by creating a strong cross-functional interface.

IT and connectivity should be updated and should be reliant on technological innovations and customer expectations. Establishing policies to abolish the license fee based on adjusted gross revenue needs to be looked into. The adoption of regulatory disclosures and transparent norms to address the asymmetry in the telecom industry needs to be established. One can note that effective competition can be incorporated through three concepts: “Allocative efficiency, technical efficiency, and dynamic efficiency.” 

To increase profits, the market power exercised by the company should not be restricted. This would help in efficiently allocating the resources and contributing to the economy invariance to the price adjustments to the consumer needs. There needs to be an initiation of equilibrium between promoting competition and checking anti-competitive practices. Being a capital intensive sector, competition needs to be incited by operators who would lower the costs through production efficiency and keep up with the latest economic models about digital trends.

There needs to be the symmetry of information and proper economic and policy legislations for competition impact assessment to easily get processed. Bringing in VNOs (virtual network operators) to buy bulk capacity from telcos for resale to end-users could be a vital point for expanding the market for existing services. Although there are high levies and restrictions for VNOs, easing those would prove to be highly beneficial for the sector to thrive.

Adopting the high-frequency spectrum by simplified access of the E band and V band spectrum will essentially support high-speed data transfer and thus promote competition between players and technologies. This would be done by de-regulation of the utilization of these spectrums. The foremost thing to be done is to lessen the regulatory burden for expanding consumer choices rather than focusing on the government’s revenue for vitalizing the sector’s growth.

By receiving direct support through cheap capital, land, support would essentially make India globally competitive.  Thus, there needs to be a mechanism for the competition authorities and sectoral regulators to be existing together. For competition to be easily facilitated, the market needs to be free from any sort of unsatisfactory product quality. No players in the market should be suppressing the entry of new products or stifling innovation. The competition needs to stay out of any malicious interferences, predatory activities, or fraud against the customers or suppliers.

We need to have a transparent regulation that would avoid excessive entry resulting in operators not achieving the economies of scale. Excessive price competition in revenue generation needs to be avoided for the inevitable result in the inadequacy for procuring investments and innovation otherwise.

It has been argued that for the sake of consumer benefits, every telecom industry should at least have five reasonably comparable rivals”, the numbers can vary slightly depending on the situation, and as of now India only has two players in the lead, with the second player close to financial risk.

Moreover, no firms have to hold a dominant position (this would mean a market share of 40% or more should not likely exist). The main purpose of policies and telecom regulations need to impact the market outcomes in ways that will move the prices, output, provide better service quality, service innovation, and healthy competition. 

As Alfred Kahn once explained, “It is sometimes tempting to try to change outcomes to something more comfortable politically than the results of full competition.”

This is important to note because telecom regulators in India have attempted to constrain many service providers. The attempts to have the competitive outcomes biased by favouring the firms induce lower efficiency and harm consumers in the end. The government needs to take strides to maintain a kind of normalcy that existed during the liberal times. 

The telecommunication industry needs to tread with caution, the government needs to imbibe liberal policies and promote competition. Failing to do so, the consumers will end up getting distressed when the thin line between crony capitalism and genuine relief ceases to exist. By doing so, the plans to achieve the $ 1 trillion economies for digital India seem a far-fetched idea for the time being knowing that each sector has been facing regulatory issues.

The decision lies with the policymakers and the regulators to know when intervention in the telecom sector is appropriate and how the intervention can benefit customers and their choices. 

Articles Referred:

Uppal, Mahesh. “In defense of free telecom markets. Or, how to make Indian telecom competitive while offering cheap services.” Times of India, 2020,

Kathuria, Rajat. Strengthening competition in telecom is key to realising India’s digital ambitions. The Indian Express. Accessed 2020.

Prasad, R.U.S. “The Impact of Policy and Regulatory Decisions on Telecom Growth in India.” Stanford University: Center for International Development, 2008.

Parsheera, Smriti. “Challenges of Competition and Regulation in the Telecom Sector.” Economic and political weekly, 2018.

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