This blog has been authored by Parishti Kaushik a first year student at GNLU, Gandhinagar as part of the IRALR Priming and Assistance Programme.
“Smoking is injurious to health", a warning widely stated and campaigned to make people realise how deep and grievous the problem is. Awareness has reached its peak but the its effect still needs some working. The GenZ, has advanced version of everything, from gadgets, technology to pass times and addictions.
Now there is an advanced version of cigarettes called electronic cigarettes or e-cigarettes. E-cigarettes which were once praised as the healthier alternative to cigarettes when they first appeared on the market back in the early 2000s have emerged in as a new problem rather than a solution due to lack of regulation and awareness.
To avoid the havoc, on September 18, 2019, Government under the Drugs & Cosmetics Act 1940 and Rules 1945 have banned nicotine delivery device or Electronic Nicotine Delivery System (ENDS) in India. In this article, the author will illuminate the ordinance passed in this regard and whether or not it is actually a solution to the problem stated.
The Prohibition of Electronic Cigarettes Act, 2019 was passed in India, which prohibited the production, manufacture, import, export, transport, sale, distribution, storage and advertisement of e-cigarettes and similar devices as cognizable offences in the country. On 18 Sept 2019, the Government of India issued the ordinance to ban e-cigarettes which was later approved by both houses of Parliament of India and the President, and was passed as law.
It stipulated that persons found in violation Section 4 and 5 of the Act for the first time will face a jail term of up to one year or a fine of up to one lakh rupees, or both. For subsequent offences, a jail term of up to three years and fine up to Rs 5 lakh.
It further punishes storage of e-cigarettes with imprisonment up to six months or a fine of up to Rs 50,000, or both. Once the Bill comes into force, the owners of existing stocks of e-cigarettes will have to declare and deposit these stocks at the nearest office of an authorized officer.
The Ordinance does not contain any provisions regarding possession or use of e-cigarettes.
Reasons behind the Ban
The Electronic Nicotine Delivery Systems (ENDS) are electronic devices that heat a glycol and/or glycerine-based solution containing nicotine or other flavoured substances to create an aerosol, which is then inhaled by a user. ENDS use chemical solutions and emissions process.
It is interesting to note that the companies manufacturing e-cigarettes never really claimed that they were harmless but only stated that they were safer than conventional cigarettes hence transferring to e-cigarettes would be a viable solution to curb the smoking addiction. In addition to this, there has been no proven study that showed that ENDS acts as a cessation device to control smoking.
These vaping devices come in different shapes and flavours making them attractive to the adolescents, or as stated by the Finance Minister, Nirmala Sitharaman as “Style Statements”. These ENDS contain high amount of nicotine content which can very easily lead to an addiction and according to the surveys by WHO, adolescents who are addicted to e-cigarettes have a higher probability of getting addicted to conventional cigarettes.
The Indian Council of Medical Research on the eve of 'World No Tobacco' Day in May of 2019 released a white paper on regulation of ENDS and like devices. Through this white paper on e-cigarettes ICMR recommended that e-cigarettes be completely prohibited in India; this recommendation was made with the purpose of safeguarding public health and preventing harm. The white paper emphasized on the amount of harm e-cigarettes could do to one’s health.
The government during the declaration of the ban also cited Article 47 of the Indian Constitution to justify it which states: "Duty of the State is to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."
The bottom line presented was that the ban was a step taken to prevent the youth from getting addicted to a substance that could have radical results in future.
Is the Ordinance/Act logical?
As clearly described above that e-cigarettes are harmful and should be banned for the sake of the future of the youth. But the bone of contention that arises is that banning ENDS is not a feasible solution for the country to prevent the said damage. As the history of banning in India, we have banned gutka but it is still sold and people are still consuming it and dying because of it.
Another interesting trend shown by the WHO reports is that there has been a sharp decrease in the number of smokers in India. The reason for this is the continuous awareness campaigns and realisation by the youth that smoking is harmful and can have dangerous manifold consequences. Similarly, banning is not the solution to prevent the youth from the consumption of ENDS. Bans never work, regulations, education, warnings and awareness are the key to go ahead. Bans would only open the doors for black-marketing and smuggling and this is a very easy product to smuggle and the target group would only become vulnerable and the sale would still prevail in the market just in the form of grey-market.
The government has been quite over-active in this case but the concern regarding ENDS cannot be resolved by just passing an ordinance. The problem is that if the authorities are so concerned for the youth’s addiction to e-cigarettes then why no steps are taken to ban the traditional cigarettes which are still available openly to be exploited. One of the arguments given in this case is that smoking has been the part of the society for a long-haul time and banning it away would lead to a lot of disturbance in the society as well as the market but e-cigarettes have not yet made its place so it is better control it right now.
The statement above can be accepted but can’t promise that banning a less harmful product would prove more conducive to a problem that goes far deeper. It is as if, someone has lost the horse but is still looking for the horseshoe.
It looks like the government is preparing to win a battle but is not thinking about the war it will still lose. Plus, with the pandemic present smokers and vapers are more susceptible to get infected due to an altered immune system. Though, the studies have not proven this cause but the possibility is still out there. It looks like the government is preparing to win a battle but is not thinking about the war it will still lose.
India is the second largest consumer of tobacco after China and every year almost a million people die because of it. The proposition made by the government in favour of the ban was that it would protect the youth. However, there is nothing that would prohibit the adolescents from purchasing relatively cheaper cigarettes after the ban. The reports that showed that the ENDS users suffered from lung-diseases or even died in some cases was actually because the substances consumed were unregulated and adulterated products.
The reports that showed that the ENDS users suffered from lung-diseases or even died in some cases was actually because the substances consumed were unregulated and adulterated products bought from informal sources. The substances that caused the harm included formaldehyde, Vitamin E and other harmful substances whereas the licensed cigarettes only had nicotine in them.This ban also shows a conflict of interest with the Government of India as it holds 28.64% stakes as one of the largest shareholders in ITC (Indian Tobacco Company) which is India’s largest producer of tobacco related products. India is by far the only country where the government is stakeholder in a cigarette manufacturing company. ITC has diversified its reach to other consumer products but still more than 70% of its profits come from cigarette manufacturing only. This ban would in turn benefit the cigarette manufacturers as the ENDS users would now want to shift their interest to the consumption of traditional cigarettes which can be seen as an underhand benefit to the government.
The ban was completely based on the white paper released by the ICMR which is a corroboration of different reports made at different points of time with varied data and not on some survey conducted by the government itself. There has been no theory that could prove that ENDS would act as a cessation tool for smoking but there has also never been a finding that proved that it is more harmful than cigarettes. The thing that has been proven is that the regulated and licensed e-cigarettes only contain nicotine which is much less harmful than the cigarettes and other tobacco related products.
In the case of reports, US has banned flavoured e-cigarettes under the assumption that the mystery illness and deaths seen in adolescents was due to e-cigarettes but the reasons for the same are not yet crystal clear, even the long-term effects are still under study. UK reports on the other hand shows in its surveys that e-cigarettes are 95% less harmful than cigarettes and was helping almost 20,000 people per year to overcome smoking. But the point to consider is that they have very strict regulations for ENDS, quite similar to what we have in India for cigarettes like banning its advertisements, regulating the sale, controlling the amount of nicotine used in manufacturing, age-limit on its usage.
The main reason for the ban was to prevent the consumption of ENDS to the youth and to prevent them from harming themselves with a nicotine addiction camouflaged as a solution to tobacco smoking addiction. The medical community’s primary concern to save the youth from getting addicted and putting a stop at a problem in its very start but the using ban as weapon to do that is questionable.
The scientific backing for whether ENDS would result as a bigger problem than smoking and other addictions is still in vague. And even after the ban there are no provisions to look after the illegal exploitation of ENDS. The ban has proven to be a bad alternative in past scenarios as well and the sale would still take place underground and would eventually cause the damage that the government wants to curb so badly.The choice should be simple and straightforward keeping in mind that the combustible cigarette is extremely harmful and when the potential impact of ENDS is viewed in relation to this, it becomes clear that when cigarettes and other forms of tobacco are legally available, it is unreasonable to outlaw ENDS.