Putting an End to “Ends” in India: Problems and Approaches

Introduction

At the outset, it is crucial to understand the meaning of ENDS and how it functions. It stands for Electronic Nicotine Delivery Systems (ENDS). It mainly covers in its ambit electronic vaping products (EVPs) like e-cigarettes, e-hookahs, e-pipes, and e-cigars. These vaping devices contain three main elements: a battery, a heating component and a cartridge that contains e-liquid which typically holds aerosolised nicotine (a mixture of nicotine, propylene glycol, vegetable glycerin and other chemicals). The e-liquid may also contain flavouring chemicals as a value addition.

When an EVP user takes a puff, the e-liquid in the cartridge gets heated by the heating element and forms a vapoury substance that is inhaled and goes into the lungs of the user. Moreover, just like traditional cigarettes, a portion of such vapour is exhaled by the user which may adversely affect the lungs of proximate bystanders. These EVPs mostly resemble common cigarettes. With the passage of time, vapes have evolved to look like pens and tiny USB drives making it even more convenient for users to carry them around while commuting and travelling.

As per a study conducted at the University of California, San Francisco (UCSF), electronic cigarettes cause almost the same effect on the human body as traditional cigarettes as they drastically interfere with the electrical activity, structure, and neural regulation of the heart.¹ Further, according to the studies conducted by the United States Centers for Disease Control and Prevention (CDC), users of EVPs and people in their close proximity may be exposed hazardous metals and different kinds of chemical compounds from which some are known to be carcinogens. According to the National Institute for Occupational Safety and Health (NIOSH), exposure to such chemicals may cause cancer or obliterative bronchiolitis which is a debilitating lung disease.²

User base of EVPs is at all-time high in the United States, the United Kingdom and India. As per a study by the CDC, nearly 4.5%-5.5% of US adults were recorded using EVPs in 2019. According to the data released by UK’s National Health Service, use of EVPs has been increasing steadily among children and teenagers mainly due to exciting and exotic flavours offered by manufacturers. Before their total ban in India in September 2019 which will be discussed later in this article, a report by Prescient and Strategic Intelligence released in July 2019, the market of EVPs was 7.8 million USD and was expected to hit 45 million USD mark by 2024 growing at compound annual growth rate of 26.4%.

Measures to tackle “Ends”: Approaches of the United States and the United Kingdom

The United States and the United Kingdom have approached this problem quite differently but the common aim of containing the rapidly mushrooming use of EVPs across teenagers and young adults. The United States has always struggled with its policy pertaining to ENDS. Initially, the Food and Drug Administration (FDA) of the US had classified electronic cigarettes as drug delivery systems and hence illegal. After a court case, they were reclassified as tobacco products containing stringent restrictions on promotion and advertisement. Unlike UK which encouraged the use of ENDS as a means to quit tobacco smoking which is far more harmful than e-cigarettes, US took a different approach and did not consider ENDS as smoke cessation tools rather it put them in the same category as regular cigarettes.

It is pertinent to note that the primary reason behind the growth of the ENDS industry was that adults who were trying to quit smoking tobacco resorted to them as a withdrawal mechanism. One more reason behind their popularity is that people, teenagers, and young adults in particular, perceive them to be less harmful than the usual or regular tobacco products. After severe restrictions on the promotion and advertisement of vaping products, manufacturers had to change their business strategy. They targeted young adults and teenagers by adding exciting new flavours to their vaping products.

Regulating the use of EVPs is just like addressing any other potentially harmful behaviour. Instead of a total ban, the United Kingdom adopted an efficient regulatory approach. It put a limit on nicotine content (20mg/ml of nicotine in e-liquid). Such limit is absent in the United States where one may even find 54mg/ml of nicotine in EVP e-liquid which has much greater addictive impact among young adults. In the UK, advertisements and marketing of EVPs are not restricted. Studies have shown that UK’s approach has resulted in a better overall outcome. Smoking among adults and youth has declined at a steady rate in the UK while electronic cigarettes have mainly become a smoking cessation tool or a quitting aid. In comparison to the US, teenage vaping is almost non-existent in the UK.

Stance of the Indian Government and judiciary

Owing to their extremely high addictive factor, a complete ban on electronic cigarettes and other forms of electronic nicotine delivery systems (ENDS) was imposed by the Indian Government via the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019³. This blanket ban has been a bone of contention in both legal and commercial circles.

It is evident from observing and comparing the approaches taken by the Governments of US and UK that India has taken a way more stringent approach by imposing a complete statutory ban on EVPs or ENDS. The possible legislative intent behind the ban could have been the complete elimination of electronic cigarettes and other forms of ENDS from the system to protect the youth from nicotine addiction and serious bodily harm.

Most recently, a petition was filed by two lawyers in the Delhi High Court seeking stoppage on online sale of e-cigarettes.⁴ The plea also sought the following directions:

1. Delhi Police to seize the stock of e-cigarettes and related materials.

2. Authorities to crack down on the e-cigarettes industry and locate the source of illegal marketing channels.

3. Authorities to raise awareness against the use of e-cigarettes and other forms of ENDS.

The Division Bench issued directions to the Delhi Government to ensure strict compliance of the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019. The highlights of the directions may be summarised as follows:

1. Authorities to conduct periodic checks in localities.

2. Delhi Police to make sure that e-cigarettes are not sold near schools and colleges of Delhi.

3. No need for court interference or the constitution of a court monitored committee to ensure compliance with the Electronic Cigarettes Prohibition Act.

This is not the only move made by proactive citizens in relation to electronic cigarettes. Earlier, the Rajasthan High Court had responded to a PIL filed by some law students and had issued directions to the Central and State Governments to ensure strict compliance of the Electronic Cigarettes Prohibition Act.⁵

A point in the debate is that the Government has totally banned ENDS, but other tobacco products are still sold in the market albeit under a regulatory mechanism. Arguments in favour of the regulated sale of ENDS have been advanced by a section of lawyers and academicians. Another contention is that the ban has only encouraged the illicit sale of e-cigarettes in various underground tobacco shops and even on online marketplaces. It is shown that despite the total ban, flavoured electronic cigarettes are easily available online and these are largely manufactured and distributed by Chinese companies and cost around INR 500 to INR 3500.⁶

Scheme of the Electronic Cigarettes Prohibition Act, 2019

The definition of electronic cigarettes provided under the Act is wide enough to cover all those electronic devices that heat a substance, with or without nicotine and flavours, and create an aerosol for inhalation. The definition expressly uses the phrase “all types of electronic nicotine delivery systems”. Electronic cigarettes, by whatever name called, of any shape, size, or form, are covered under the definition. However, devices that are licensed under the Drugs and Cosmetics Act, 1940⁷ have been excluded.⁸ The Explanation attached to the definition makes it clear that the term “substance” includes any natural or artificial or other matter, whether it is in a solid, liquid, or gaseous state.

The Act prohibits the following acts in relation to electronic cigarettes:

1. Manufacturing, import, export, transportation, sale and distribution of a complete product or any part thereof.

2. Advertisement that directly or indirectly promotes the use of electronic cigarettes.⁹

Further, no person is allowed to permit his property to be used as storage for any stock of electronic cigarettes.¹⁰ Any existing stock kept for the purpose of sale, distribution, transport, export, or advertisement, shall be disposed of in a manner provided by the Act.¹¹

To ensure the compliance of the Act, an authorised officer is given the power of search and seizure if he has reason to believe that any provision of this Act is being contravened. All searches and seizures under the Act are to be conducted as per the provisions of the Code of Criminal Procedure, 1973¹².¹³

Any person who engages in the manufacture, import, export, transport, sale, distribution, or advertisement in contravention of Section 4 shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to one lakh rupees, or with both, and, for the second or subsequent offence, with imprisonment for a term which may extend to three years and with fine which may extend to five lakhs rupees.¹⁴

Any person being the owner or occupier or having the control or use of any place knowingly permits it to be used for storage of any stock of electronic cigarettes shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees or with both.¹⁵

All offences under this Act shall be tried by the Court of Judicial Magistrate of the First Class in accordance with the procedure provided for trials in the Code of Criminal Procedure, 1973.¹⁶

Under this Act, a court can only take cognizance of an offence on a complaint filed by the authorised officer.¹⁷ Further, the offence under Section 4 is cognizable.¹⁸ It is also worth mentioning that the Act has been given an overriding effect by the legislature.¹⁹

Conclusion

The existence of legislation does not guarantee its compliance on the ground unless the authorities established under the said legislation take effective steps to ensure the same. The Government passed the Electronic Cigarettes Prohibition Act back in September 2019 but still illegal sales of e-cigarettes through black markets and online platforms are on a constant rise. Once a prohibited product starts getting sold through black markets or underground channels, it becomes extremely difficult for the authorities to monitor such channels. Busting these illicit rackets demands massive resources at the Government’s disposal which is obviously heavy on the exchequer.

At this juncture, the Government is left with two choices. To either ensure strict compliance with the Act and see that the prohibition is not flouted or learn from the experiences of the US and UK and allow regulated and taxable sales of such products and ensure that teenagers and youngsters are not adversely affected. It is proven through research that EVPs are 5% less harmful in the long term than traditional cigarettes but the Government still decided to impose a statutory blanket ban on the former because of its attractive market that targets children and teenagers while the latter is strictly regulated and can only be sold to adults.

Interestingly, the Delhi High Court had to specifically issue directions to the Government and the police to ensure effective compliance of the Act. The larger goal and the core intent of the legislation is to safeguard public health and to protect the youth of this country from the menace of ENDS. Non-compliances or lapses in the implementation of the Act dangerously defeat the purpose. It is time for the Government to rethink its stance on ENDS. Instead of a blind and complete ban, a more pragmatic and strategic move could be considered that benefits the stakeholders and accomplishes the bigger aim of public health protection.