This article is written by Aditi Shrivastava, pursuing a Diploma in Cyber Law, Fintech Regulations and Technology Contracts from Lawsikho.com. 

Introduction

“Smoking causes cancer”, “Smoking is injurious to health”, “No Smoking” and “Smoking kills” are very famous yet infamous health advisory messages that we witness every now and then at traffic signals, in public places like bus stops, railway stations, airports, parks and movie theaters. The Government of India also made it compulsory to display anti-tobacco health warnings before and during the film shows and Television Programmes. Despite these health warnings, smoking is the cheapest and most common way of intoxication among every age group.

The consumption of cigarettes was already at peak, tobacco and cigarette industries were generating huge profits due to this infamous addiction and in the meantime, technology overstepped and “Electronic Cigarettes” were invented. The very first question that comes to my mind is “Why E-cigarettes!? Weren’t the conventional cigarettes enough to make people unconscious?”. Perhaps technology is overstepping every conventional method but to replace an addiction with more fashioned and advanced form is something that human beings should be really proud of? Clearly not! That’s why after a few years of this infamous invention, E-cigarettes started facing criticism and ban in almost every country. This article answers some major questions regarding regulation of E-cigarettes in India such as how & when E-cigarettes were banned in India and which statute has been passed by the Parliament to enforce and regulate the ban of E-cigarettes. In order to understand the regulation of E-cigarettes, we need to be acquainted with “What is an E-cigarettes?” & “Why E-cigarettes were gaining popularity?”. 

The evolution of E-cigarettes started when the first commercially successful E-cigarettes was invented in China in 2003 after which it was introduced to the rest of the world. E-cigarette is an electronic device which is a part of Electronic Nicotine Delivery Systems (ENDS). E-cigarette do not burn or use tobacco leaves but vaporize or heat the solution using the battery to create aerosol for inhalation. The constituents of the solution are nicotine, propylene glycol and flavoring agents. E-cigarettes were considered to be 95% less harmful to health than traditional smoking and also considered to have the potential to help smokers quit smoking by the Public Health England (2018) and the United States National Academies of Sciences, Engineering and Medicine (2018) in their independent review. Due to this reason, the E-cigarettes were promoted immensely in India and in other countries as well. 

Ban of E-cigarettes in India

Prior to 2019 ban of E-cigarettes, numerous steps were taken by the Indian Government to regulate the production, sale, purchase, consumption, import, export and advertisement of E-cigarettes: 

1. ENDS (including E-cigarette) were not regulated under Cigarettes and other Tobacco Products Act, 2003 (COTPA) as it was not covered under the definition of “cigarette” or “tobacco product”. Also, E-cigarette were not covered under the definition of “drug” under section 3(b) of Drugs and Cosmetics Act (DCA), 1940 and hence it could not be regulated under the provisions of DCA.
2. The Ministry of Health and Family Welfare (MOHFW) issued a circular in 2018 with the aim to advise States & Union Territories to prohibit online/offline sale, manufacturing, distribution, trade, import and advertisement of ENDS (including E-cigarettes) within their jurisdiction. Later, Delhi High Court held that the advisory circular of (MOHFW) is not binding on States and Union Territories.
3. With the object to prohibit the advertisement of ENDS (including E-cigarettes) and allowing it for the purposes that are approved under DCA (Drugs and Cosmetics Act, 1940), Ministry of Electronic and Information Technology (MEITY) proposed an amendment to Information Technology (Intermediary Guidelines) Rules 2018. No further action was taken after the proposal of MEITY.

India banned E-cigarettes in 2019 through Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act  2019. The Act has been enacted with the object to prohibit the production, manufacture, import, export, transport, sale, distribution, storage and advertisement of electronic cigarettes. Prior to this announcement of ban of E-cigarettes in India, various states including Punjab, Karnataka, Mizoram, Kerala, Jammu & Kashmir, Uttar Pradesh, Bihar, Maharashtra, Tamil Nadu, Jharkhand, Himachal Pradesh, Puducherry (UT), Rajasthan, Meghalaya, Odisha and Nagaland had already banned E-cigarettes. The points which were raised by the Union and State Governments while arguing the ban of E-cigarettes in India are:

1. E-cigarettes were supposed to help smokers quit smoking but many people are getting addicted to it. Youth is the most vulnerable section of the society and it is very essential to protect our youth from hazardous E-cigarettes.
2. There is no high-quality evidence to prove that E-cigarettes are actually helpful in losing smoking habit.
3. The constituents of the solution used in E-cigarettes are toxicants which can cause a person’s death.
4. Nicotine is as harmful as tobacco. 

On the other hand, the tobacco industries, E-cigarette companies, consumers of E-cigarettes and other stakeholders were constantly opposing this ban on the ground that the traditional cigarettes (paper rolled cigarettes, bidis) should be ones to face the ban as they are much more injurious to health than E-cigarettes. They argued that these traditional tobacco burning cigarettes cause cancer and other death causing diseases yet traditional cigarettes aren’t facing any ban.

Key features of Prohibition of E-cigarettes Act, 2019 

• Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act,  2019 has been enacted to replace the ordinance passed by the Government on September 18, 2019. 
• The Act prohibits the production, manufacturing, import, export, transportation, sale, distribution, storage and advertisement of electronic cigarettes and punishes the offender with imprisonment which may extend to one year or with fine which may extend to one lakh rupees or with both. For the second or subsequent offence, the offender shall be punished with imprisonment which may extend to three years and with fine which may extend to 5 lakh rupees. The offence of production, manufacturing, import, export, transportation, sale, distribution, storage and advertisement of electronic cigarettes u/s 4 is a cognizable offence.
• If any person knowingly allows the storage of any stock of electronic cigarettes in a premise owned, occupied or controlled by him, such person shall be e punished with imprisonment which may extend to six months or with fine which may extend to lakh rupees or with both.
• If the offence under the Act has been committed by a company, then the company along with every person who is in charge of, and who was responsible for the conduct of the business of the company, at the time of commission of the offence, shall be made liable.
• The seized stock of E-cigarettes shall be disposed of, after due completion of Court proceedings, in accordance with the provisions of Chapter XXXIV of the Code of Criminal Procedure, 1973.

Conclusion

In this article, the regulation of E-cigarettes in India has been divided into two parts- regulation of E-cigarettes before ban and regulation of E-cigarettes after ban. Prior to the 2019 ban of E-cigarettes, there was a huge debate going on in the country with regard to the so-called benefits of E-cigarettes i.e. these infamous cigarettes are less harmful than traditional paper rolled cigarettes and hence should not be banned. There was no such statute to regulate the sale, production, import, export, consumption & advertisement of these cigarettes and the concerned Industry was earning huge amounts of profits due to increasing addiction of “less harmful” E-cigarettes. Fewer steps were taken by the Indian Government to regulate the usage and sale related activities of E-cigarettes but those steps could not control the rapidly increasing addiction of these cigarettes. In 2019, the Government finally banned E-cigarettes on the ground that there is no high-quality evidence to prove that E-cigarettes are actually helping the smokers to lose their smoking habit instead, its addiction is increasing rapidly. The tobacco industry, E-cigarette companies and the consumers of the E-cigarettes were totally against this ban. 

In order to regulate the ban of E-cigarettes, the Government of India passed an Act making the production, manufacturing, import, export, transport, sale, distribution, storage and advertisement of E-cigarettes an offence punishable with imprisonment which may extend to one year or with fine which may extend to one lakh rupees or with both. The Act punishes an individual as well as a company that indulges in any of the above-mentioned activities relating to E-cigarettes.