The government’s efforts to control trade in e-cigarettes are not new and previously on August 28, 2018, Ministry of Health and Family affairs had issued a circular wherein it advised all the states to consider prohibition of sale, manufacture, distribution, and trade of ENDS imported or advertised in their jurisdictions, except for purposes approved under the Drugs & Cosmetics Act, 1940 (D&C Act).
The Government of India recently promulgated an ordinance, The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage, and Advertisement) Ordinance, 2019 (“Ordinance”). E-cigarettes are battery-operated devices that produce vapours by heating a solution containing nicotine. Nicotine is the addictive substance in the usual cigarettes. E-cigarettes under the ordinance include all forms of Electronic Nicotine Delivery Systems (ENDS), Heat Not Burn Products, e-Hookah and the like devices.
The Ordinance is significant since it outlaws the sale and other trade-in relation to e-cigarettes and other vaping/ENDS devices. The e-cigarettes in the past few years have become very popular in India and were also promoted as a way to quit smoking. Considering the size of the Indian market over the last few years there was an effort to show that ENDS devices are less harmful than normal cigarettes through various research papers published in renowned medical journals.
The Ordinance prohibits the production, manufacture, import, export, transport, sale, distribution and advertisement of e-cigarettes in India. Further, the ordinance prescribes stringent punishments for contravention of the provisions of the Ordinance including a jail term of up to three years and a fine of up to five lacs. Additionally, storage of e-cigarettes will be punishable with an imprisonment of up to six months, or a fine of Rs. 50,000 or both. Further, the owners of existing stocks of e-cigarettes will have to declare and deposit the existing stocks at the nearest office of an authorized officer. It should be noted that significantly, the Ordinance does not contain any provisions regarding possession or use of e-cigarettes.
The government’s efforts to control trade in e-cigarettes are not new and previously on August 28, 2018, Ministry of Health and Family affairs had issued a circular wherein it advised all the states to consider prohibition of sale, manufacture, distribution, and trade of ENDS imported or advertised in their jurisdictions, except for purposes approved under the Drugs & Cosmetics Act, 1940 (D&C Act). Based on this advisory as many as 15 states banned e-cigarettes even before the Ordinance. The Director-General of Health Services (DGHS) issued a communication on February 22, 2019 to the State licensing authorities to ensure that ENDS are not sold (including online sale), manufactured, distributed, traded, imported or advertised in their jurisdictions, except for purposes and as may be approved under the D&C Act, 1940. The said circular and communication was challenged before the Delhi High Court. The court in an interim order held that ENDS are not sold as therapeutic devices or as medicines and do not have any medicinal value. Court also took into account a report of the 48th meeting of the Drugs Consultative Committee, which had stated that e-cigarettes containing nicotine are not within the purview of the D & C Act and could not be regulated under it. Based on the above the court concluded the DGHS has no jurisdiction to issue any circular concerning e-cigarettes. However, the final verdict is still awaited on the matter.
It has been argued that that banning e-cigarette which is consumed by a small percentage of the population whilst continuing booming trade and consumption of usual combustible cigarette and bidi is arbitrary and excessive use of legislative power by the government and aimed to protect interests of existing tobacco manufacturers. It has also been argued that the decision to ban e-cigarettes is based on very limited research on the effects of e-cigarettes consequently Ordinance has been promulgated without proper analysis. The government has cited Article 47 of the Constitution of India as the reason behind the introduction of the Ordinance which talks about the “Duty of the State to raise the level of nutrition and the standard of living and to improve public health” and these devices are injurious to health and popularity of these products has negative impact on public health of the society especially of the youth who are likely to be introduced to nicotine through e-cigarettes. The government has also argued that e-cigarettes are usually marketed as being safer alternatives to normal tobacco, but such notions of safety are false.
The Ordinance as expected has been challenged in Kolkata High Court by two entities namely Plume Vapours Pvt. Ltd. and Woke Vapours Pvt. Ltd. In the last hearing on October 1, 2019, the court has stayed the provisions concerning declaration and disposal of existing stocks till the next date of hearing while not staying the Ordinance. It should be kept in mind that while courts will decide on the legality of the ban there is also likely to be renewed efforts by e-cigarette manufacturers to lobby with the government so that the stringent ban could be made less onerous and e-cigarettes are treated at par with normal cigarettes.