E-Cigarettes: The Modern Yet Controversial Cousin

In September 2019, the Indian Government took a step ahead in banning e-cigarettes, along with many other nicotine devices. As per the claims made for this ban, the Government addresses it as an “important public health decision”, which has angered an array of vaping fanatics. 

It is essential to learn what e-cigarettes are:

Electronic cigarette, is as of now, what is known as a harmless alternative to smoking and other traditional tobacco or smoking products. It is a battery-operated device that fairly resembles a USB drive, a cigar, or a pen in its appearance, although is available in various other shapes and sizes. It produces vapour by heating the aerosol solution, which mainly contains nicotine- an addictive drug that is also found in traditional tobacco products, which by ample research has been found to be carcinogenic. 

It is often known as smokeless tobacco, as it does not leave behind any smoke or smell.  

It is known by various other names such as “vapes”, “vape pens”, “tank systems”, “mods”, “e-cigs”, “e-hookahs” and “electronic nicotine delivery systems (ENDS)”. And using an e-cigarette has recently picked up a catchy connotation of “vaping”. It could also, unfortunately, be used to smuggle marijuana and other drugs as well. 

Vaping, on its institution, was proposed to be an alternative to traditional cigarettes, as a means to cut down on the addiction of smoking. With the lack of smell and ease of possession, it bears a safer option to smoking and other tobacco products. But the cigarette industry has seen a downfall due to the raging trend of vaping and also the increasing awareness about smoking.

For starters, e-cigarettes are made of fairly harmless ingredients, when in comparison to conservative tobacco products. E-cigarettes are known to contain nicotine, propylene glycol, glycerin, flavourings, and other chemicals, making it reasonably harmless than traditional tobacco products. E-cigarettes have the potential to serve as a substitute for conventional cigarettes, claiming to be comparatively harmless, although there is not much evidence to prove it. But e-cigarettes come with their own fair share of problems, ranging from heart attacks, respiratory problems, nausea, diarrhea, vomiting, cough, chest pain, among others. One reason to root back to the present ban by the Indian Government could be due to the recent findings of the Centre for Disease Control, which reported a harsh cluster of about 500 diseases related to e-cigarettes. 

The Game Of Differences And Anomalies

The question remains if the Indian Government was keen on shutting down an oncoming new trend amongst the youth with a smokescreen of a “public health epidemic”. The then Finance Minister Nirmala Sitharaman announced the ban on e-cigarettes while stating “we immediately took a decision so that the health of our citizens, of our youth, is not thrown at a risk”. However, the ban remains under-implemented, or rather unimplemented. Any paan shop, today, almost over a year after the ban, can be easily seen selling e-cigarettes, if not it is easily and most definitely available on the internet. The Government of India specifically claimed to have taken aid of the statistics related to the USA on e-cigarettes and some ground data on India’s situation. It is also important to note that the Indian Government is the largest shareholder of the Indian Tobacco Company, better known as ITC, the largest cigarette company in India with a market capitalization of 2.4 trillion Indian Rupees. [1]

This leads to speculations that the Government has passed the “Prevention of E-cigarette Bill, 2019” under the “pressure from the tobacco lobby and the extended raw tobacco and conventional cigarettes”. [2]

This Bill defines electronic cigarettes as “electronic devices that heat a substance, which may contain nicotine and other chemicals, to create vapour for inhalation”. It has also provided for imprisonment of up to one year, or a fine of Rupees One lakh, or both to a first-time violator. And up to three years and a fine extending up to Rupees Five lakhs for any subsequent offences. No person, under this bill, is allowed to use any place for storage of any stock of e-cigarettes. If they do store any stock of e-cigarette, he shall be imprisoned for up to six months or be imposed with a fine of Rupees Fifty thousand, or both. It also gives powers to an authorized officer to search any place where trade, production, storage or advertising of e-cigarettes, if he so believes such activity is being undertaken. 

The Government of India claims that some major reasons such as- ease of availability- mostly to youth, black market operations, smuggling of illegal drugs along with the e-cigarette, influenced in bringing about a nation-wide ban on electronic cigarettes. 

Unlikely to this move by the Government, there has been significant outrage regarding the passing of the bill. 

The Trade Representatives of ENDS (TRENDS), disturbed by the bill, said “the TRENDS has started a campaign opposing the Government’s move to ban e-cigarettes and similar devices”. The TRENDS has urged the health ministry to relook into the ban imposed on alternative smoking devices. The TRENDS is a voluntary association in India that is a union of importers, distributors, and markets of such “alternative” smoking devices. 

Over 62 specialists in nicotine, science, policy and medicine have signed a letter urging the Director-General of ICMR (Indian Council of Medical Research) to reconsider its recommendations on ENDS, rebutting each of the four points on which the experts at TRENDS claim that the ICMR paper “fails to present a balanced overview of the risk-benefit ratio of ENDS vis-a-vis other combustible tobacco products and therefore recommendations for a ban are not justifiable”. [3]

TRENDS forwarded a letter to the Union Health Secretary as well as the Health Minister and other stakeholders, underlining the logic of the expert’s views as a basis for re-looking its stance on the ban. It is also of the opinion that a ban on ENDS shall bring a halt to all research being done in the country on this new system of nicotine delivery. 

The convenor of TRENDS, Praveen Rikhy said that “it will be detrimental to the present and future generations”. [4]

In the opinion of the TRENDS, a ban on e-cigarettes or any other similar devices shall pave way for black markets and hence creating problems drastically that never existed before the usage of alternative smoking systems. 

Dr. Mohit Varshney, a psychiatrist with extensive experience in tobacco cessation said that “ENDS is a viable line of treatment that doctors around the globe currently employ while dealing with addiction cases”.[5]

As on paper, while imposing a ban, the ICMR indicated that e-cigarettes and other non-conventional smoking devices shall induce a nicotine addiction amongst non-smokers and that it also affects the cardiovascular system, impairs respiratory immune cell function and airways in a way similar to that of conventional cigarettes. ICMR also has shared studies that show nicotine consumption and e-cigarettes are “at least 95 percent less harmful” than tobacco cigarettes. 

However, TRENDS condone this move of the Government stating that it is a violation of the citizens’ right to equality under the Constitution of India, and asking the substantial question that “why should a citizen be denied the right to choose a less harmful way of nicotine consumption just because they happen to live in a particular state?”. 

TRENDS further argued that “endorsing tobacco hard reduction on regulatory ENDS could present a historical opportunity for India to accelerate the decline in smoking rates, reducing health impacts on users and bringing down the financial cost of smoking treatment without any cost of the Government.” [6]

The Confederation of All India Traders (CAIT) on Tuesday asked the Centre to consider a regulatory framework for e-cigarettes instead of a ban on it as proposed by the health ministry. [7]

The Delhi High Court as stayed the Centre’s circular banning sale and manufacture of ENDS like e-cigarettes and e-hookah with nicotine flavour, saying as the products were not a “drug”, the authorities did not have the jurisdiction to issue such a direction.

Some states, including Punjab, Karnataka, Kerala, Bihar, Uttar Pradesh, Himachal Pradesh, Tamil Nadu, Maharashtra, Jharkhand, Rajasthan and Mizoram have already banned use and sale of e-cigarettes, vape and e-hookah. The Central Drug Standards Control Organization (CDSCO) had written to the drug controllers of all the states saying they should not allow the sale, online sale, manufacture, distribution, trade, import or export or advertisement of ENDS. [8] Senior Delhi High Court Advocate Farrukh Khan said that “rather than imposing a ban, the Government should frame a sound policy on e-cigarettes”. [9]

Bringing it down to these exact words “to look cool”, as stated by the Finance Minister Mrs. Sitharaman, as one of the reasons why the Government chose to impose this ban. What perhaps the Government has failed to notice is that by restricting the youth from e-cigarettes, it could facilitate an increased number of youths eventually turning to conventional smoking methods. It is astonishing how in a country with over 120 million adult smokers, the decision was made to ban a safer alternative. The ban, nonetheless, poses a political agenda. 

While on means to justify this ban, Mrs. Sitharaman has cited a report stating that sales of e-cigarettes have risen 77.8 percent due to consumption by students. 

According to the World Health Organization, after China, India is the world’s second largest consumer of traditional tobacco products. [10]

The new ban on this safer alternative does not take any measure to prevent the 9 lakh deaths that are caused by tobacco-related illnesses. 

There are currently over 460 brands of e-cigarettes and over 7,700 flavours of e-cigarettes available in India, making it extensively appealing to its users. India is also the third largest producer of tobacco in the world and the tobacco farmers are an important source of vote bank for political parties, according to WHO data. 

However, the ban on e-cigarettes has come as a boom for traditional cigarette companies. With an overall fall in the number of cigarette users and induction of various safer, non-conventional alternatives, due to increased health concerns, this ban should work as a boost for the tobacco companies. The shares of these companies surged, shortly following the ban. ITC, the largest tobacco company in the country, gained 1.8%, Godfrey Phillips India gained 7.8% and VST Industries rose 1% and Golden tobacco rose 4.5%, so shortly after the ban was announced. 

Testing Waters: International Trading

It is, on the contrary, opined that the ban on the trade of e-cigarettes downright contravenes with the World Trading Regulations. Marina Foltea, Managing Director of Geneva-based investment consultancy Trade Ports, at the Global Forum on Nicotine in Warsaw, claims that “23 countries have banned e-cigarettes currently and it stands against Article IX of the 1994 World Trade Organization General Agreement on Trade and Tariffs (GATT)” and also said that “banning e-cigarettes from the market is an act of discrimination according to International Trade Rules”. [11]

She also says that “if two products are ‘like’, a country cannot treat one better than the other one”- while assuming the “likeliness” assessment of the World Trade Organization. 

It is also evident that e-cigarettes are largely being viewed as a safer alternative to conventional cigarettes by consumers. 

Hence, the WTO finds it most appropriate to consider the compatibility of regulations with multilateral trade rules and to modify such regulations, if possible”. [12]

It also states that a complete ban would stand discrimination and ultimately illegal. 

India being a member of the General Agreement on Trade and Tariffs, is obligated to oblige by the regulations. 

WTO also recommends for members to find solutions through internal mechanisms as well as frame regulatory rules instead of imposing a ban on it. It is indicative of the fact that “prohibition of e-cigarettes may be found to violate both domestic and international rules of law”. [13]

The WTO also urges countries to seek scientific data, double-check consistency with pre-existing legislations, and consult with manufacturers, producers and consumers and allow time for interested parties to comment and then frame suitable regulations. 

Article III of GATT requires imported products to be treated at par with “like” products- as a National Treatment Provision, hence proving the ban on e-cigarettes to be violative of the Articles. 

India could claim defence under Article XX of GATT under the “General Exceptions” which allows the members to “derogate from their WTO obligations in order to pursue health-related policy measures”. [14]

In order to do so, the measures opted by India must fulfil two tests- first, that the measures opted is “necessary” to protect human life, and, Second, that the measure does not constitute an overtly protectionist disguised restriction on International Trade. 

Conclusion

To propose a ban on an addictive practise is quintessential for a country’s growth, the recent ban on e-cigarettes poses quite the opposite of it. Despite being regarded as a safer alternative to traditional smoking practices, vaping, does come with its baggage of side effects. Although there is not enough research proving it to be a cure for addictive smokers, it definitely could be considered as a safer alternative. Due to its recent induction to the world, there is not enough study to prove the long-term problems of vaping, hence inducing a dilemma. 

But the decision of the Government tips the scale towards e-cigarettes being a threat to human health, more so, by not bringing the dangerous case of traditional or conventional tobacco-based products. It looks as though the Government lacked investing severely into learning about e-cigarettes. 

FAQs

1. If Banning Of E-Cigarettes A Good Move In The Indian Scenario?

It is evident that the Government did ban e-cigarettes in order to curb a greater damage, but while doing so, it looks as though it failed to notice the downsides that latches on to this ban.  Youth are more likely to give into conventional tobacco product addictions which have proven to be life threatening.

2. Would Framing Regulations Be A Better Option Instead Of A Complete Ban?

It is prescribed by the WTO that the members of GATT shall formulate necessary regulations in tune with the laws of the country to better regulate the market of e-cigarettes, which ought to act as a viable option in India as well. 

 

References

Govt has banned vapes, but owns 28% of ITC – India’s biggest cigarette maker

The e-cigarettes ban in India: an important public health decision

https://www.thelancet.com/action/showPdf?pii=S2468-2667%2820%2930063-3

India e-cigarettes: Ban announced to prevent youth ‘epidemic’

https://www.bbc.com/news/world-asia-india-49738381

E-cigarettes set to be banned in India as Parliament passes bill 

https://www.indiatoday.in/india/story/e-cigarettes-set-to-be-banned-in-india-as-parliament-passes-bill-1624496-2019-12-02#:~:text=Parliament%20on%20Monday%20passed%20a,Lok%20Sabha%20earlier%20this%20month.

Proposed ban on Electronic Nicotine Systems: Trade reps urge health ministry to re-look

https://www.outlookindia.com/newsscroll/proposed-ban-on-electronic-nicotine-systems-trade-reps-urge-health-ministry-to-relook/1601290

White Paper on Electronic Nicotine Delivery System Indian Council of Medical Research 

https://www.ijmr.org.in/article.asp?issn=0971-5916;year=2019;volume=149;issue=5;spage=574;epage=583;aulast=Indian

Traders seek regulation on e-cigarettes, instead of ban

https://www.newindianexpress.com/business/2019/sep/03/trade-representatives-consumer-body-question-draft-ordinance-to-ban-e-cigarettes-2028429.html

INTERNATIONAL TRADE RULES FOR BANNING E-VAPOR PRODUCTS Marina Foltea 

https://www.rstreet.org/wp-content/uploads/2017/08/104A.pdf

India’s E-Cigarette Ban & Multilateral Trade Rules: Going in Smoke

https://ijiel.in/blog/f/india%E2%80%99s-e-cigarette-ban-and-multilateral-trade-rulesup-in-smoke


[1] Govt has banned vapes, but owns 28% of ITC – India’s biggest cigarette maker- theprint.in

[2] E-cigarettes set to be banned in India as Parliament passes bill- indiatoday.in

[3] Proposed ban on Electronic Nicotine Systems: Trade reps urge health ministry to re-look- Outlookindia.com

[4] Proposed ban on Electronic Nicotine Systems: Trade reps urge health ministry to re-look- Outlookindia.com

[5] Proposed ban on Electronic Nicotine Systems: Trade reps urge health ministry to re-look- Outlookindia.com

[6] Proposed ban on Electronic Nicotine Systems: Trade reps urge health ministry to re-look- Outlookindia.com

[7] Traders seek regulation on e-cigarettes, instead of ban – Newindianexpress.com

[8] Proposed ban on Electronic Nicotine Systems: Trade reps urge health ministry to re-look- Outlookindia.com

[9] Traders seek regulation on e-cigarettes, instead of ban – Newindianexpress.com

[10] India e-cigarettes: Ban announced to prevent youth ‘epidemic’- bbc.com

[11] INTERNATIONAL TRADE RULES FOR BANNING E-VAPOR PRODUCTS Marina Foltea

[12] INTERNATIONAL TRADE RULES FOR BANNING E-VAPOR PRODUCTS Marina Foltea

[13] India’s E-Cigarette Ban & Multilateral Trade Rules: Going in Smoke- ijiel.com

[14] India’s E-Cigarette Ban & Multilateral Trade Rules: Going in Smoke- ijiel.com

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