Above: Photo Courtesy UNI

The centre’s decision has become highly controversial with petitions against the ban order of E-Cigarettes reaching the courts and shares of three tobacco companies shooting up

Papia Samajdar

Arnab Pratim Dutta tried switching to e-cigarettes when India was waking up to this seemingly healthier alternative. “I wanted to cut down on my smoking, which had gone up to as many as 10 cigarettes per day, so I went online and ordered myself an e-cigarette,” confessed Dutta, a journalist. That was in 2011. But the experiment did not last long and Dutta was back to smoking regular cigarettes. “Apart from the messy (leaked cartridge, burnt lips) smoking experience, I felt that the urge of smoking had increased. The only positive thing was that I could use e-cigarettes even at my desk without anyone objecting to it and it seemed to be a healthier option.”

Not anymore. On September 18, 2019, the central government promulgated The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Ordinance, 2019. Calling it an illegal drug, the Ordinance aims at a blanket ban on Electronic Nicotine Delivery Systems (ENDS) devices. Violation of any of these rules will invite a fine of up to Rs 1 lakh for first-time offenders. For repeat offenders, the fine can reach Rs 5 lakh coupled with a jail term of three years. Storage of e-cigarettes can lead to six months of jail or Rs 50,000 fine or both. With this ordinance, India has joined Australia, Singapore, South Korea, Thailand and Mauritius which have also banned these devices.

Tobacco is one of the largest killers, taking more than one million lives each year in India. It contains nicotine—a highly addictive component and the main cause of health hazards. Hence governments across the world have prohibited smoking at public spaces. This has led smokers to take to vaping, which is increasingly popular in India. The ENDS market in India is currently estimated at Rs 15 crore. Though a relatively new product with little known impacts, e-cigarettes are known to contain nicotine.

On May 31, 2019—World No Tobacco Day—the Indian Council of Medical Research (ICMR) called for a complete ban on vaping. The White Paper released by ICMR listed the adverse health effects caused by ENDS. However, despite nicotine being used in these products, the long-term health impacts are still not clear.

“After reviewing about 300 reports, we know that vaping is injurious to health. However, we are unclear about the long-term impact, hence have recommended complete prohibition till there is more clarity,” said Joy Kumar Chakma, public health specialist who co-authored the White Paper.

E-cigarettes are not regulated, and anyone can smoke them in public places where regular smoking is otherwise banned. This has also resulted in children and youth taking a shine to these products since they come in various flavours.

Citing this as the key reason, the Union Ministry of Health and Family Welfare has issued an advisory against all ENDS products. The advisory took note that nicotine is being used in them. The government has placed ENDS products within the definition of drugs. The advisory says that as none of the ENDS products are manufactured by licensed drug manufacturers or sold by licensed sales outlets, the ENDS products are not approved under the Drugs and Cosmetics Act, 1940.

Following the advisory, the Ministry of Finance issued another advisory to customs officers to stop all imports of ENDS. An advisory was also sent out by the Central Drugs Standard Control Organisation to all states and Union Territories to prohibit sale, including online, manufacture, distribution, trade, import and advertisement of all ENDS products as these are not approved under the Drugs and Cosmetics Act.

Though 16 states have already banned ENDS devices, the ban itself has become highly controversial. Questions are being raised as to why e-cigarettes have been made the greater evil as compared to the sale of tobacco. It is being felt that the government is protecting its own interests. Many are even asking whether the move is due to the pressure from the tobacco industry. Following the ban, the stock prices of three leading Indian cigarette manufacturing companies have shot up, thus raising further eyebrows.

Not surprisingly, petitions have been filed in courts against the ban and the advisory. Several vaping companies as well as the Association of Vapers filed petitions in the Delhi High Court contesting the claim that ENDS products fall in the category of drugs. According to petitioners, ENDS products do not claim to be a medicine and are only substitutes for smoking tobacco. They also claim that they are healthier than smoking. Additional petitions filed by individuals also appealed against the ban as it violated the freedom of choice.

The Delhi High Court in its order in May 2019 declined to treat ENDS products as drugs as such products are not used as medicines. The ban has been stayed until the next hearing in December 2019. However, a similar petition filed in the Karnataka High Court invited a fine of Rs 1 lakh for challenging the government’s ban. Council For Harm Reduced Alternatives had filed a PIL against the government’s ban on e-cigarettes stating that they are 95 per cent safer than regular cigarettes. The Court dismissed the petition after considering the reports and studies and imposed a fine for filing such a petition as it did not see any public interest.

Petitions have also been filed in the Calcutta High Court after the ban by e-cigarette importer Plume Vapour Pvt Ltd and Woke Vapor Pvt Ltd. The petitions have called the ban arbitrary, discriminatory, excessive, drastic and a violation of fundamental rights.

Protests around the country indicate that consumers favour vaping over smoking. Vivek Thapa, who has been trying to quit smoking, feels disappointed. “I had been thinking about switching to e-cigarettes to reduce smoking. But I seem to have lost the chance. Without an alternative, it might not be possible for me to quit,” he said. He had tried nicotine patches and gums and was planning to switch to e-cigarettes. His hopes have now gone up in smoke.