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Is vape legal in India

June 22, 2022

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This article is written by Mohammad Sahil Khan of Dr. Ram Manohar Lohiya, National Law University, Lucknow. The article deals with the working mechanism of vape, the risks associated with vaping and the laws pertaining to vaping in India and abroad.

It has been published by Rachit Garg.

Introduction

Vaping regulations are quite dynamic and vary from country to country. Countries like Japan have declared e-cigarettes illegal which has led consumers to shift towards heating tobacco as an alternative to e-cigarettes. Other countries such as the United Kingdom have placed strict restrictions and have some licensed devices for medicinal purposes. Brazil, Uruguay, Singapore and India are some of the countries that have completely banned the use of e-cigarettes citing them to be addictive and having the tendency to destroy the country’s youth. The United States of America and the United Kingdom have allowed the sale of e-cigarettes with certain strict regulations such as limiting advertising of vaping, buyer and seller both should be aged 18 or more and limiting the usage to a certain fixed limit. In India vaping is illegal and was completely banned in 2019.

What is vaping and how does it work

Vaping has become a sort of trend amongst smokers in recent years. Vape is commonly referred to as an e-cigarette (touted as a healthier alternative to regular cigarettes), it is a device which heats up the liquid such as nicotine or other flavours which are later consumed in the form of vapours by inhaling. Pens, e-cigarettes and hookahs are some of the vaping devices that are used for the purpose of inhaling vapours.

There are many devices that are used for the purpose of vaping such as pens, e-cigarettes, hookahs, etc. However, the basic components in each of the devices remain unaltered and they work in a similar manner. The tobacco content is heated till it becomes a vapour or an aerosol that a person inhales. The various components of vaping machines are:

Mouthpiece– The mouthpiece is the component which is put in the mouth and contains vaping liquid which has nicotine, flavours and other addictive substances. There is an absorbent material that is saturated with vaping liquid that is subsequently placed in a small cup and is eventually inserted into the mouthpiece.
Atomizer– Atomizer is a metal coil whose chief function is to turn vaping liquid into a form of fine mist which can be inhaled. Some vaping devices have a cartomizer as well which is an atomizer with a cartridge and it is used for vaping juice in one component.
Battery– A battery is a necessary component in a vaping device because it provides power to heat elements in an atomizer. Usually, the battery used is a rechargeable lithium-ion battery and it is dangerous as it can catch fire.
Sensor– A sensor is an indicator that points out when the element that has to be inhaled has become activated. It is also used for activating the heater when the vaping substance is inhaled through a mouthpiece.
Solution– Solution is that component which contains the inhaling substance such as nicotine or other flavours. Some of the vaping devices contain propylene glycol as a solution to turn liquid into an aerosol which can be inhaled.
Cartomizer– Cartomizer consists of an atomizer surrounded by a poly foam which acts as an e-liquid holder. Cartomizer consists of three coils and with each coil the amount of vapour produced increases. After e-liquid has been utilised and when it starts to taste burnt, the cartomizer is discarded.
Clearomizer– Clearomizer is useful in monitoring e-liquid levels in vaping devices.

Risks involved in vaping

E-cigarettes were introduced as an alternative to smoking tobacco cigarettes believing that it would not be as dangerous to health as smoking normal tobacco cigarettes, but is it true? Vaping has become quite frequent among teenagers, reports have suggested that one out of nine high school students in the United States vape daily. With regard to India, the sales of e-cigarettes saw a massive spike; in 2014 the sales of e-cigarettes were 1.6 million units but in 2019 it has gone up to 3.3 million units. The question still remains what actually are the risks involved with vaping.

Dangerous chemicals in e-cigarettes

The Centre for Disease Control and Prevention has stated that e-cigarettes do contain fewer toxic chemicals in comparison to tobacco cigarettes and that is why it is believed that it is a good alternative to prevent smoking conventional cigarettes. It does not mean e-cigarettes are free of any dangers, the inhaled vapours of aerosol contain nicotine, carbonyl compounds, heavy metals and other cancer-causing agents. The chemicals contained in vaping have been found to be addictive and thus, it has the potential to make people addicted to vaping. Various research and reports have suggested that vaping can cause breathing problems among people of all ages; be they smokers or non-smokers. World Health Organization, British Medical Association and United States Surgeon General, have issued warnings against e-cigarettes.

Effects of vaping on brain development

The nicotine part in e-cigarettes enters into the bloodstream after being absorbed by the lungs of an individual. The entry of e-liquid into the blood is quite dangerous because when it happens hormonal shift is caused as nicotine stimulates the adrenal glands to release epinephrine hormone, commonly known as adrenaline; which in turn activates the central nervous system and leads to increased breathing, heartbeat and blood pressure. This entire process leads to the activation of reward circuits (part of the brain associated with pleasure activities) in the brain and as a result, dopamine (a hormone that makes an individual sense pleasure) is released, which in turn demands more reward and thus leads to a loop of addiction. Apart from this, nicotine affects the prefrontal cortex, whose primary function is decision making, judgement and other related functions. These are extremely dangerous signs as most teenagers nowadays are addicted to vaping and thus, this addiction prevents the development of their brain and it leads to the development of mood-related disorders.

Lung problems

Vaping has been considered a safer option as compared to regular cigarettes but that does not mean it does not affect physical health. Coughing problems, breathing difficulties, weight loss and nausea are some of the common symptoms that have been found among people who are indulged in vaping. Some of the elements of cannabis are used in heating up vape which ultimately results in the inhaling of such substances which eventually leads to lung problems.

Gum disease

Vaping can cause a lot of oral issues because of the harmful contents that it carries. It has been found that Nicotine, which is one of the essential ingredients involved in vaping, can reduce blood flow towards the mouth and the nutrients that reach the mouth also get diverted and as a result, the overall health of the gums goes down and it leads to an invitation to a pandora of oral diseases.

Addiction

Vaping was considered to be an alternative to regular cigarettes and it was believed that it can even help smokers to reduce their regular consumption of cigarettes and eventually lead them to quit smoking. However, studies and reports have indicated in other directions stating that vaping has caused people to opt for some other stronger drugs. This problem of switching to stronger drugs and also getting addicted to vaping is quite prevalent in adolescents because it has been found that the brain grows till the age of 25 and when we learn something neural networks are formed in the brain. Addiction is also a form of learning and that is why adolescents get addicted to vaping more.

Nicotine is present as an e-liquid in many vaping devices and it is quite harmful because of its addictive nature. Nicotine is a substance that stimulates dopamine and sends signals to the brain to release more dopamine because it gives pleasurable experiences and as a result, the consumer develops a craving for smoking and gets addicted to vaping. Nicotine affects neurotransmitter Acetylcholine, because of nicotine, the consumer already gets the acetylcholine and as a result, the brain stops producing acetylcholine (involved in functions of muscle movement and memory function) which affects the regular functions performed by the neurotransmitter acetylcholine and the consumer gets dependent on nicotine for the purpose of attaining acetylcholine and leads the individual towards the path of addiction.

Laws which regulate vaping in India

Prior to 2019, there was a lack of regulation on e-cigarettes. Cigarettes and other Tobacco Products Act, 2003 (COTPA), and Drugs and Cosmetics Act (DCA), 1940 were the primary acts which regulated the sale of tobacco products but e-cigarettes were not covered under them and as a result, e-cigarettes were not regulated. So, in an attempt to regulate such products, a health circular was given out by the Ministry of Health and Family Welfare in 2018 whose main aim was to advise State and Union Territories to prohibit online/offline sale, manufacturing, distribution, trade, import and advertisement of ENDS (Electronic Nicotine Delivery System) including E-cigarettes within their jurisdiction. Later, Delhi High Court held that such an advisory is not binding and therefore; the regulation of e-cigarettes was not carried out as per the circular.

Vaping was banned in India through the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019. The objective of the Act is to prohibit the manufacture, production, export, import, storage, distribution and advertisement of electronic cigarettes. However, even before the act came into force; many state and union governments had already imposed a ban on e-cigarettes.

Ban on e-cigarettes in India and its consequences

There were certain reasons cited by the government for imposing a complete ban on e-cigarettes which are as follows:

E-cigarettes failed in their motive of reducing smoking habits of people and rather than acting as an alternative; e-cigarettes in itself became a source of addiction, especially among teenagers. People who had started vaping became more prone to developing an addiction to other drugs as well.
The government stated that e-cigarettes also contain nicotine and it is not a safer alternative to regular cigarettes.
E-cigarette solution is inhaled after heating the e-liquid and it contains a lot of intoxicants that can lead to some severe diseases as it contains certain carcinogenic substances such as Nickel, Radon, and Asbestos.
The government felt that if vaping is legalised then there is a risk of initiating tobacco to non-smokers.
ICMR had put out a white paper in which they stated that e-cigarettes can have adverse effects, ranging from damage to DNA, the formation of cancer cells to other neurological and cardiovascular disorders.

Essential features of Prohibition of E-cigarettes Act, 2019

Prohibition of E-cigarettes Act, 2019 prohibits the production, manufacturing, sale, transportation, import, export, advertisement and storage of e-cigarettes and if an offender is found, he or she will be punished with a fine up to one lac rupees or imprisonment extending up to a year or both. If the offence is subsequently repeated then in that case punishment will be increased from one year to three years along with a fine which will be up to five lac rupees.
If a person is knowingly involved in the storage of electronic cigarettes and gives out his space or premise for the purpose of storing e-cigarettes; then he will also be treated as an offender and would be sentenced to imprisonment for a maximum term of six months or a fine up to one lac rupees or both.
If the involvement of a company is found in the offences mentioned under the act, then in such circumstances; every member of the company who was in charge of the business activities of the company would be held liable.
Once the Court procedure is completed, the stock of e-cigarettes which was seized would be disposed of as per provision XXXIV of the Code of Criminal Procedure, 1973.

Owing to health risks and recommendations of the Indian Council of Medical Research, the government of India decided to completely ban vaping. The ban was precautionary and was a proactive move from the government considering the fact that the Indian Council of Medical Research had heavily stressed the harmful effects of e-cigarettes.

Though the ban is a stringent and positive step in discouraging people to get involved in such harmful activities, it has its own consequences. Like every other banned substance in India, e-cigarettes have found their way to the black market. E-cigarettes are quite easily and cheaply available in these markets. Since there is a blanket ban, sellers have the discretion to sell substandard quality e-cigarettes which further increases the risk of aggravating the health of individuals.

Regulations for vaping abroad

The laws and regulations mentioned above vary from country to country, even in a country there are various regional laws related to vaping; which means that vaping might be legal in one region of the country but in some other regions of the same country it might be illegal. It is important to look at the regulations placed by various countries in order to have a general consensus in the world regarding vaping.

United States of America

The Food and Drug Administration has the federal authority to regulate vaping and products related to it. After 2016, FDA had gained the power to do so but FDA had refrained from creating a generalised standard system for e-cigarettes and also e-liquids (nicotine, glycerol, propylene glycol, etc). However, now some states have imposed bans related to sales of vaping products. Further, in September 2020, FDA started reviewing Premarket Tobacco Applications (an application that has to be reviewed and approved by the FDA, prior to any tobacco product legally entering in the markets of the USA); while also signalling that flavoured products will not be authorised without any extraordinary evidence.

The vaping bans that have been imposed in the United States have been at local and state levels, rather than at the national level. Only a few cities such as San Francisco have imposed a blanket ban on all vaping products. The fact that there is no generalised standard system for imposing a ban on e-cigarettes and vaping products shows that despite FDA having the authority; it has not shown keen interest in imposing a complete ban on vaping.

United Kingdom

The United Kingdom has taken a soft stance toward banning e-cigarettes, rather they have essentially encouraged vaping in place of regular cigarettes because smoking creates a costly burden for the UK’s National Health Service and the country believes that if smokers will switch to e-cigarettes, it would reduce the health problems that smokers face. However, this does not mean that the government promotes vaping, in order to ensure the safety of the consumers, there are certain regulations in place:

E-cigarette tanks can not have a capacity of more than 2 ml.
Restricting the maximum volume of nicotine-containing e-liquid for sale in one refill container to 10ml. Apart from this, e-liquid to nicotine strength should not exceed more than 20mg/ml.
There is a requirement that vaping and products related to it must be notified and also published by the Medicines and Healthcare Products Regulatory Agency.
Certain ingredients like caffeine and taurine are banned from being used as flavours in vaping.
It is a requirement that nicotine-containing products or their packaging should be tamper-evident and child-resistant.

Russia

In Russia, selling vapes is subject to age and location-based restrictions. For example, in order to consume e-cigarettes, individuals should be 18 years of age or above, apart from that there are restrictions on vending machines selling e-cigarettes. Advertisement and promotion of vaping are completely prohibited in Russia and the use of e-cigarettes in public transport is also prohibited, except in long-distance passenger ships where there are separate cabins made for the purpose of vaping.

France

As per European regulations, the maximum amount of nicotine in vaping devices is restricted to 20mg/ml. Additives like vitamins in e-liquids are prohibited in France. Apart from that, vaporising products need to be registered with the French Agency for Food, Environmental and Occupational Health and Safety before being sold in the market. The manufacturers and importers have an obligation to submit information regarding characteristics to the competent authorities before being introduced to the market.

Germany

Germany is known as a smokers’ paradise and it is no surprise that they did not introduce any kind of regulation or ban on vaping up till now. But, recently Germany has adopted the draft Tobacco Duty Modernisation Act (2021). The act seeks consumer behaviour in the tobacco market. The objective of the act is to adjust tobacco duty rates, apart from that improving public health and protecting minors is the key area. The draft aims at taxing e-cigarettes and other tobacco-heated products. With this legislation, e-cigarettes would be considered like normal cigarettes and will be taxed accordingly. The taxation system will be applicable by 1 July 2022; which will be evaluated in terms of the volume of the substance in millimetres (EUR 0.16 from 1 July 2022).

Way forward

Looking at the stance of all these countries, it seems that a complete ban on vaping is still far away. Vaping was introduced in 2007 and its market has been expanding ever since. Countries like UK, France and Germany have adopted regulatory measures as far as vaping is concerned; while on the other hand countries like the USA, Russia and India are not in favour of vaping citing public health concerns. Asian countries completely differ from the views of European countries and rather than regulating vaping, most Asian countries have imposed a blanket ban.

Although European countries are not imposing a blanket ban, it can be seen that of late, they have also adapted regulatory mechanisms to prevent e-cigarette addiction, which is a testament to the fact that vaping is indeed quite dangerous for health. The fact that many studies and reports have suggested that e-cigarettes lead consumers towards consuming other hard drugs proves that regulating vaping won’t help and there is a need for a stringent ban on vaping to prevent any harm caused by vaping.

In context to what India has done, banning is not enough because then these devices and substances find their way through the black market; so it is pertinent to look after this aspect and prevent any sale of e-cigarettes and other vaping devices.

Conclusion

North America and Europe are the continents that favour vaping and they have lenient laws and regulations regarding e-cigarettes and products related to vaping. On the other hand, Asia, South America and Oceania are the continents that have an extremely hard stance on vaping and some of the countries have even imposed a blanket ban. Africa is the only continent which has not clearly defined any laws and regulations pertaining to vaping so there is an ambiguity regarding their stance on vaping.

Overall, it is difficult to know whether vaping is actually a good alternative to regular cigarettes because of the contrasting results in the United States and the United Kingdom but one thing is certain, teenagers are the ones who are severely affected by vaping and there are severe physical and mental health effects on teenagers and therefore; there is a need for effective regulation regarding the sale of vaping related products and also the contents involved in vaping should have a prescribed limit and it must be ensured that consumers are not exceeding the specified limit.

As far as India is concerned, it seems that India will continue its hard stance on vaping to prevent people from getting addicted to it, especially teenagers. However, while doing so the government should ensure that vaping and e-cigarettes do not find their way through the black market and the ease of accessibility of these substances should be restricted.

Frequently Asked Questions (FAQs)

Are e-cigarettes a safer option as compared to regular cigarettes?

Some reports have suggested that it contains less tobacco content than regular cigarettes but it has also been found that vaping leads people to get involved with strong drugs.

What are the health effects of vaping?

Vaping can cause lung problems, and it can affect brain development, especially among teenagers.