This article is written by Neelam Prusty, a student from Madhusudan Law College, Odisha. In this article, the author explains the evolution of e-cigarette and what legal actions did the Indian Government take regarding the same.

Introduction

Smoking is injurious to health but for ages, people smoke without fear. In ancient times, the kings even the queen use to smoke chillum or hookah. The manuscripts and paintings from Atharvaveda show a clear picture of saints and sages using chillum and beedi. The use of chillum and hookah was portraited to be used by the prestigious people of society. With time, everyone started smoking. Many companies came up with manufacturing and selling of tobacco products like cigarettes and gutka etc. Due to the use of such products, people were affected badly. E-cigarettes came into existence with the developing technology which worked with electricity rather than fire.

What is an E-Cigarette?

E-cigarettes were invented in 2004 by a Chinese pharmacist, Hon Lik. He invented an e-cigarette to give a safer and cleaner way to inhale nicotine to help people to slowly cut off the tobacco intake. After getting success from the Asian market, e-cigarettes were introduced in the American market by 2007. Gradually, it increased its market and was sold over online stores in different countries all over the world. E-cigarettes were also called Electronic Nicotine Delivery Systems (ENDS).

An E-cigarette is a type of device that looks like a normal cigarette or cigar which contains e-liquid in the form of a battery. It neither uses nor burns tobacco leaves rather it evaporates the e-liquid from the battery which is inhaled by the user. E-liquid mainly consists of five ingredients like nicotine, propylene glycol, glycerin, flavorings, and other chemicals. While nicotine works as a sedative stimulant, propylene glycol produces thick clouds of vapor.

What are the types of E-cigarettes?

When e-cigarette came to market around 2007, the designs of the e-cigarette resembled regular cigarettes. It was in the shape of cigars, pipes, pens, and even USB flash drives.

Over time, many researchers classified the category of e-cigarettes based on its design and feature. The category of e-cigarettes was divided into three generations.

1. The first-generation E-cigarette resembles the normal cigarette which is disposable.
2. The second-generation E-cigarette looks like a pen that can be recharged from time to time.
3. The third generation E-cigarette is a very large device with a customized battery and replaceable parts. These are also called mods.

The most popular brand, JUUL came up in the market as leading E-cigarette products which took up 73.4% of the E-cigarette market by 2019. Some companies like Suorin Drop, Myblu, and Vuse Alto also followed JUUL and developed high nicotine delivery devices.

How does it work?

E-cigarettes are available in many different sizes and types. Each kind of E-cigarette consists of three main components i.e. the battery, the tank, and the atomizer.

The battery is the major part of the E-cigarette. It was made up of lithium ions which pack more energy than a normal battery to charge the whole device. The effectiveness of E-cigarette is directly proportional to the ability of the product to heat the e-liquid to transform it into vapor. Hence, the capacity of the battery to produce more voltage in the circuit and vaporizes the e-liquid faster makes the E-cigarette a more effective product. The pen-like-model of E-cigarette consists of a small size battery which is irreplaceable whereas the larger E-cigarette or mods has larger size battery replaceable.

The tank is a small disposable plastic cartridge that contains e-liquid which is to be fed with a wick. This tank is refillable and doesn’t allow the liquid to get leaked out of the tank. Nowadays, the tank even contains a cartomizer.

The atomizer is made up of a coil of wire or metal strip wrapped around a wick that works as to produce vapor. The wick carries the liquid to the coil which is heated up by the energy of the battery and in the result of which it evaporates the e-liquid. Unlike past days, the wick is made up of cotton instead of silica, ceramic, or steel.

When the E-cigarette is turned on, the battery produces energy to the atomizer for heating the coil inside it. The heat vapourised the e-liquid present in the cartridge of the tank which is inhaled by the user through its mouth pipe. Like the design of conventional cigarettes, the LED light in the front of the E-cigarette lights up as the vapors are produced.

Why was it widely used?

E-cigarettes were invented and popularised with an idea to help people to quit smoking slowly. But the new product claiming the low risk of nicotine in the market tempted the younger generation with its taste and flavorings. The youths and adolescents started using E-cigarette with the hope to quit smoking but instead of quitting smoking, they get addicted to nicotine. The market of E-cigarette grew exponentially due to the users’ motivation to quit smoking. But, as the sale of E-cigarette grew in the market, the manufacturing company took its advantage. Instead of using a small amount of nicotine solution (a highly addictive component), the company used the same amount of nicotine as the conventional cigarette. The nicotine delivery capacity of the E-cigarette determines the quality of the E-cigarette. Hence, the quick nicotine delivery capacity of the E-cigarette and a large amount of nicotine present in the cartridge of the E-cigarette makes it more hazardous than the normal cigarette.

Pattern and Statistics of Using E-cigarette

Within two years from 2017-2019, the use of e-cigarette among the high school students increased rapidly from 11% to 27.5% while it increased from 0.6% in 2011 to 10.5% in 2019 among the middle school students. As the usage rate increase, the National Youth Tobacco Survey released its data showing 34.2% of a high school student and 18% of middle school student spends 20 or more days per month in using an e-cigarette in 2019. They even found that 11.7% of high school students vape almost every day after detailed monitoring.

According to the National Institute of Drugs Abuse, teens are more likely to use e-cigarettes than normal cigarettes. When the use of normal cigarettes among 8th-grade students, 10th-grade students, and 12th-grade students was 3.8%, 6.3%, and 11.4% respectively, it increased suddenly to 9.5%, 14.0%, and 16.2% respectively with use of e-cigarettes. Not only boys but also, girls started using e-cigarette which proved to be harmful to their present as well as the future.

The report says that 66.0% of users started using e-cigarette just because of the tempting flavourings. 

Why was it banned?

The Government of India decided to ban E-cigarette in the state of India due to various reasons. The following reasons posed the Government to take such a sudden decision.

1. The Government found an enormous and inequitable economic loss to society due to the disease caused by the use of tobacco. 
2. The country started facing hindrance in achieving the national targets under Sustainable Development Goals, National Monitoring Framework for Prevention and Control of non-communicable diseases, and National Health Policy, 2017.
3. The youth, as well as pregnant women, were under a great influence of tobacco which resulted after the future human resource of the country. 
4. The increased amount of accidents and death due to the consumption of nicotine. The increase in the use of E-cigarette by the school and college-going students tending them to get habituated to nicotine.

Policy and Regulation regarding E-Cigarette

Food and Drugs Administration (FDA)

The Food and Drug Administration (FDA) finalized to regulates the manufacture, import, packaging, labeling, advertising, promotion, sale, and distribution of every product that is defined under the definition of tobacco product, including components and parts of e-cigarette under The Tobacco Control Act, 2016.

They banned the sale of tobacco products including e-cigarettes through the internet. Restrictions on flavours were encouraged which were used overwhelmingly to attract the youths. Even in 2018, the FDA established a notice to put a WARNING note on the e-cigarette in a legible font so that awareness of people will lead to a decrease in the number of e-cig users. The FDA confirmed the manufacturing of the e-cigarettes with less hazardous constituents of the highest quality standard. The federal states and local authorities were advised to set the highest possible amount on the e-cigarettes as tax which will discourage youngsters to use such products.

Other Organisations

The Child Nicotine Poisoning Prevention Act, 2015 established the Consumer Safety Product Commission to make child-resistant packaging for e-cigarette and e-liquid.

The World Health Organisation (WHO) set recommendations for the advertisement and restriction on flavours of the e-cig to protect the public health. The WHO even warned the Government of different countries not to trust the health claims regarding e-cigarette as nicotine is the essential production of the e-cig which is the most harmful and addictive substance. 

Local and State Jurisdiction

In Columbia, many states made regulations for licenses for selling e-cigarette. The state made it compulsory for the tobacco retailer to have a license for the sales of e-cigarette. While in North Carolina, the license for sale and manufacture of e-cig is only needed if they are to be exported outside North Carolina. 

The states of Washington D.C. imposed the federal excise tax of e-cigarette which led to an increase in the price of e-cigarette. The increase in price led to a decline in the users of e-cigarette.

The Tobacco Control Act set 21 years as the minimum legal age for the sale of e-cigarettes. Later, Tobacco 21 policy gained popularity which helped the federal states to limit the sale of tobacco products including e-cigarettes to the youth under 21 years old. 

Legal Actions by Indian Government

The Government asked the state to regulate the sale of E-cigarette. But, unfortunately, only 15 states and one union territory banned E-cigarette. The states and union territory were Punjab, Karnataka, Mizoram, Kerala, Jammu & Kashmir, Uttar Pradesh, Bihar, Maharashtra, Tamil Nadu, Jharkhand, Himachal Pradesh, Rajasthan, Meghalaya, Odisha, Nagaland, and Puducherry. Other states of India did not take any action.

Therefore, the Government of India after consulting the Indian Council of Medical Research (ICMR) decided to ban E-cigarette under Article 47 of the Constitution of India which gives power to the Government of India to regulate the law to raise the nutritional level, improve public health and provide a standard living.

The Government of India using its power under Article 47 of the Constitution of India declared the consumption, production, manufacturing, import, export, transport, sale, distribution, storage, and advertisement of e-cigarettes in any form as illegal throughout India.

The Prohibition of Electronic Cigarettes (production, manufacture, import, export, transport, sale, distribution, storage, and advertisement) Ordinance, 2019 was passed by the Government of India to save the youth from the hazardous consequences of E-cigarette. The Government instructed everyone who has existing stocks of E-cigarette to deposit the stock of E-cigarette in the nearest police station before enforcing the ordinance.

The ordinance declared the production, manufacturing, import, export, transport, sale, distribution, or advertisement of e-cigarettes in any form is a cognizable offense in India. The punishment was decided as imprisonment of up to one year or fine up to Rs 1 lakh or both for the first offense. But, if someone was found to breach the E-cigarette law again, the punishment would be imprisonment of up to three years and a fine up to Rs 5 lakh. Under the new rule, even storing e-cigarettes was declared to be punished with imprisonment up to 6 months or fine up to Rs 50,000 or both.

Conclusion

E-Cigarettes were being used for the last few years in a large quantity by every group of people. But at times, there was a need for controlling them and have a check upon them. Many professionals researched about it and reported that the product is harmful. Hence, it took time for the Government of different countries to make laws for banning the use of e-cigarettes. In India, some bars have a license that allows the use of e-hookah after taking a copy of the Identification Proof of the users. Though the laws are imposed to ban the use of e-cigarettes, the youth must be more aware of the harmful effects of e-cigarettes and give up using e-cigarettes. 

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: