No Provision in Law, but Centre Is Firm on Banning E-Cigarettes

Around 19 percent of men, 2 percent of women and 10.7 percent of all adults smoke tobacco.

Updated
India
5 min read
The MoHFW issued a notification, saying that “to protect ENDS users, particularly the youth, regulation under COTPA (Cigarettes and Other Tobacco Products Act) 2003 is not the solution.
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In a controversial stand, the Union Ministry of Health and Family Welfare (MoHFW) has taken an in-principle decision to ban the manufacture, distribution and sale of all Electronic Nicotine Delivery Systems (ENDS) – more popularly called e-cigarettes across India and heatsticks abroad, according to a draft proposal of the ministry.

Anti-tobacco activist Seema Sehgal had only sought directions that would bring ENDS products under existing regulatory mechanisms.
Anti-tobacco activist Seema Sehgal had only sought directions that would bring ENDS products under existing regulatory mechanisms.
(Photo: iStock)

The proposal, which will be presented before the Delhi High Court on 4 April in response to a PIL filed in January this year by anti-tobacco activist Seema Sehgal, is based on the rationale that “there is mounting evidence to suggest that the ENDS are as harmful to human beings as conventional tobacco products, and there are no health benefits of the same.”

Sehgal had only sought directions that would bring ENDS products under existing regulatory mechanisms.

While the government’s unequivocal decision acknowledges that the “health benefits/hazards of frequent consumption” of “e-liquids containing nicotine” as an “alternative to cigarettes” is “not known to anyone,” it has nevertheless put the e-cigarette and cigarette companies at loggerheads.

While the former suspects that large cigarette companies are behind pushing the government’s decision, the latter has maintained a curious silence over the issue, though articles have appeared in mainstream newspapers advocating a complete ban on ENDS.

The MoHFW’s decision springs from a “national consultation” meeting of 4 July 2014 .
The MoHFW’s decision springs from a “national consultation” meeting of 4 July 2014 .
(Photo: iStock)

The MoHFW’s decision springs from a “national consultation” meeting of 4 July 2014 where “eminent doctors, specialists and scientists opined” that “available scientific evidences indicate that any of the ENDS (and similar technologies that encourage tobacco use or adversely impact public health) are hazardous for an active as well as passive user. The chemicals used as solvents are also hazardous.”

Following this meeting chaired by the then MoHFW additional secretary, CK Mishra, three sub-groups were formed: the first on health effects of ENDS, the second on legal implications on ENDS, and the third on advocacy and public opinion. The MoHFW’s decision hinges on the recommendation of the three sub-groups which “unanimously observed that ENDS are harmful” and they should therefore be “banned in India.”

“E-liquids which contained nicotine in varying amounts, propylene glycol (solvent) and various flavours are harmful,” says the MoHFW.
“E-liquids which contained nicotine in varying amounts, propylene glycol (solvent) and various flavours are harmful,” says the MoHFW.
(Photo: iStock)

The reason, according to the MoHFW, is that “e-liquids which contained nicotine in varying amounts, propylene glycol (solvent) and various flavours are harmful. The toxicity of the individual chemicals has the potential to act adversely (for example, as carcinogens) or compoundly to harm the active user as well as the passive user of ENDS”.

Besides, the ministry argues that since “synthetic nicotine being expensive, nicotine for the purpose of e-liquids are believed to be extracted from tobacco leaves” and therefore the “liquid contains many other chemicals apart from just nicotine.”

However, before taking a final call on ENDS, the MoHFW decided in December 2017 that it would be worthwhile to find out what “practices” existed in other countries. But suddenly, on 12 December 2017, the MoHFW issued a notification saying that “to protect ENDS users, particularly the youth, regulation under COTPA (Cigarettes and Other Tobacco Products Act) 2003 is not the solution. Rather, a comprehensive ban (of manufacture, sale, distribution, storage and advertisement) will benefit the population.”

As many as 21.4 percent of all adults currently use smokeless tobacco such as khaini, gutka, pan masala, gudakhu, etc.
As many as 21.4 percent of all adults currently use smokeless tobacco such as khaini, gutka, pan masala, gudakhu, etc.
(Photo: iStock)

According to studies by the Global Adult Tobacco Survey (GATS), which is a worldwide standard for systematically monitoring adult tobacco use and tracking key tobacco control indicators, the “prevalence of tobacco use decreased six percentage points – from 34.6 per cent in 2009-10 to 28.6 per cent in 2016-17 – in India.”

While 19 percent of men, 2 percent of women and 10.7 percent of all adults currently smoke tobacco, 29.6 percent men, 12.8 percent women and 21.4 percent of all adults currently use smokeless tobacco such as khaini, gutka, pan masala, gudakhu, etc.

It is needless to say that just e-cigarettes or heatsticks are just as harmful as conventional cigarettes and other tobacco products. However, in the US and the UK, various alternatives to smoking have been introduced, even after governments in these countries had sought a ban on e-cigarettes and heatsticks.

Representatives of e-cigarette and heatsticks companies acknowledge that their products are “no doubt harmful” and that “ideally there should be no choice between bad and good.” They would nevertheless prefer “some choice” – one that is between “bad and worse.”

When contacted, Dr M Siddiqi, chairman of the Kolkata-based Cancer Foundation of India and an independent researcher on the affects of tobacco on smokers, said: “The Centre should have first amended the relevant law to bring all forms of ENDS at par with normal cigarette and tobacco products. This would have entailed some form of regulation which has been imposed on cigarettes and other tobacco products. In a way, the government’s decision to ban ENDS will only end up helping large cigarette companies.”

Dr Siddiqi, however, maintained that both ENDS and paper-rolled cigarettes and similar tobacco-based products, in which chemicals are used, are equally harmful.

Even before the ban takes effect, if at all it does, the government’s stand is that e-cigarettes, heatsticks and the devices that enable their use are “illegal” products that are being “sold illegally” and “necessary action needs to be taken to curb their menace” since these are “gateway products” for the youth to switch to conventional cigarettes.

While Punjab, Haryana and the Union Territory of Chandigarh have declared e-cigarettes and ENDS “poison,” entailing a ban on their manufacture and sale under the Drugs and Cosmetics Act of 1940, other states such as Karnataka, Bihar, Kerala, Mizoram, Maharashtra and Jammu and Kashmir have issued “necessary orders banning the manufacture, distribution and sale of e-cigarettes as unapproved drug.”

While researchers such Dr Siddiqi maintained that little or no studies have been conducted in India over the affects of ENDS, the government’s decision to go ahead with a complete ban could invite legal suits.

Several attempts to contact MoHFW Joint Secretary and Financial Advisor Arun Kumar Jha, who is in-charge of tobacco control issues, proved futile.

State governments such as Bihar, which recently banned all forms of ENDS, admit that COTPA only regulates tobacco products. Speaking to The Quint over phone, Bihar Health Secretary Sanjay Kumar Singh admitted that “nowhere does the law say that governments can ban ENDS. They can only regulate the sale of products by way of having manufacturers issue warnings on tobacco products.”

When reminded that despite no provision in law Bihar had banned ENDS, Singh said: “I have to check. The ban came into effect during the tenure of the previous secretary.”

A questionnaire emailed to MoHFW Secretary Preeti Sudan did not elicit a response.

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