Electronic cigarettes in India have become widely popular among the youth. An electronic cigarette or e-cigarette is a device that uses electricity to heat nicotine-containing liquid to form vapour, which the user inhales. Because of the indiscriminate use of e-cigarettes among youth, the Indian government decided to enact a law prohibiting the use and sale of electronic cigarettes in India.
The use of e-cigarettes can cause various lung diseases. Substances such as propylene glycol are used in e-cigarettes. These substances pose serious health hazards. Waste produced by e-cigarettes severely harms the environment.
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Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Bill, 2019
The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Bill, 2019 (afterwards referred to as the 2019 Bill) was introduced to prohibit the manufacture, advertisement, and sale of e-cigarettes. Thus, this Bill was introduced to impose an e-cigarette ban in India.
The statement of objective of the Bill states that its purpose is to protect people’s health. This Act became the main instrument of the e-cigarette ban in India.
Background of the Bill
The Parliament prohibited electronic cigarettes in India because of the following reasons:
- ICMR White Paper Report: The Bill was influenced by the White Paper Report released by the Indian Council for Medical Research (ICMR). In the paper, the Council discussed the harms of the Electronic Nicotine Delivery System and recommended that e-cigarettes be banned in India. The Council opined a complete prohibition of the sale of electronic cigarettes in India.
- Article 47: The Bill also aims to fulfil the Constitutional obligation envisaged under Article 47 of the Constitution of India. Article 47, which forms a part of the Directive Principles of State Policy, imposes a duty on the State to improve public health and the standard of living.
Murli S. Deora v. Union of India: The Supreme Court’s judgement in the case of Murli S. Deora v. Union of India supported the Bill. The Supreme Court held that non-smokers have a fundamental right to live in an environment free from cigarette smoke. The Court took note of the plight of non-smokers who suffer from various lung diseases due to exposure to passive smoking. The Court directed the government to ensure that public spaces are free from cigarette smoking.
After Deora judgement, the Parliament enacted the Cigarettes and Other Tobacco Products Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution Act, 2003, which penalised smoking in public places.
- Seema Sehgal v. Union of India: In the case of Seema Sehgal v. Union of India, a public interest litigation was filed before the Delhi High Court for issuing guidelines to regulate Electronic Nicotine Delivery Systems (ENDS), including e-cigarettes. The High Court had directed the Central Government to issue guidelines or enact laws regulating ENDS and e-cigarettes. In its affidavit to the Court, the government had made clear that it intended to prohibit the sale and use of ENDS.
Both Houses of Parliament subsequently passed the Bill. The Act replaced the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Ordinance, 2019. Thus, a ban was imposed on selling electronic cigarettes in India.
What is an E-Cigarette?
Section 3(d) of the Act defines what is e-cigarette. An electronic cigarette is an electronic device to heat a substance and create inhalable vapour. The substance may or may not contain nicotine or other chemicals. The e-cigarettes come in different flavours. E-cigarettes in India also include e-hookahs and other nicotine delivery systems. However, if any product is registered under the Drug and Cosmetics Act of 1940, it would not fall within the definition of e-cigarettes.
Banning E-Cigarettes
Section 4 of the Act penalises the manufacture, advertisement, import, export, and sale of electronic cigarettes in India. Trade and well ads of e-cigarettes are prohibited under Section 4 of the Act.
Section 7 of the Act provides that whoever infringes Section 4 of the Bill can be punished with imprisonment for up to 1 year or with a fine of up to Rs. 1 lakh. However, if an offender commits a second violation of the provisions of this Bill, then they may be punished with imprisonment of up to 3 years and with a fine of up to Rs 5 lakhs.
Prohibition on the Storage of E-cigarettes
Section 5 of the Act prohibits the storage of e-cigarettes. In case any stock of e-cigarettes is maintained before the enactment of the law, the owner or occupier of the place where the e-cigarettes are stored was mandated to prepare a list of the stock and transmit the stock to the authorised officer.
Section 8 of the Bill prescribes a punishment of up to 6 months of imprisonment or a fine of up to Rs 50,000 for any person who engages in the storage of e-cigarettes.
Trade of E-Cigarettes
Section 4 of the Act prohibits the trade of e-cigarettes. The import, as well as export of e-cigarettes is punishable. The import and export of goods fall under the Union List; therefore, the Union Government is competent to prevent the import and export of e-cigarettes.
Powers of Authorised Officers
The powers of the authorised officers are present under Section 6 of the Bill. Section 6 states that if the authorised officers detect the trade or advertisement of e-cigarettes at any location, then the officer may enter and search such that location and seize any contravening material.
The officer should maintain a record of the material discovered and seized in the search. The records of such material and the seized property should be placed before the Judicial Magistrate of the first class. The search and seizure operations performed under this Act have to be following the provisions of the Code of Criminal Procedure, 1973.
Penalties
The Act punishes the manufacture, sale, import and export of e-cigarettes with up to 1 year of imprisonment. Similarly, a person storing e-cigarettes can be imprisoned for 6 months.
If a corporation performs any offence under this Act, then the person in charge of the company at the time of the crime is liable. However, suppose the person in charge of the company shows that the offence was committed without his knowledge or that they took all proper care to prevent it. In such a case, they are exempt from liability.
Global Perspective
Several countries globally have imposed a ban on e-cigarettes. In the United States, e-cigarettes can be sold after the Food and Drug Administration authorises the sale through a marketing order.
Article 20 of the European Union Tobacco Product Directives deals with e-cigarettes in the European Union. It does not expressly prohibit the sale of e-cigarettes but prescribes that these products should comply with the minimum prescribed health standards. The e-cigarettes are also required to contain health warnings.
Asian countries such as Thailand, Vietnam, and Singapore completely ban the sale of e-cigarettes. Similarly, South American countries such as Brazil and Argentina have banned e-cigarettes.
Conclusion
The prohibition of the manufacture and sale of e-cigarettes is necessary to protect the physical as well as the mental health of the youth of the country. Nicotine-containing e-cigarettes pose a significant addiction threat and can considerably damage health. Once students start using e-cigarettes, they gradually shift to conventional smoking. Thus, preventing the use of e-cigarettes is imperative.
There are many myths that e-cigarettes are not harmful, and people can use them to quit smoking. However, none of these claims are clinically proven. So long as the effectiveness and potential harms of e-cigarettes remain unclear, the use of electronic cigarettes in India should be prohibited to protect the youth from becoming addicted to tobacco use.
FAQs on the Prohibition of E-Cigarettes
Is the production or sale of e-cigarettes a cognisable offence?
Section 13 of the Act states that the offence of manufacturing, advertising, or sale of e-cigarettes is cognisable. The police can arrest a person selling e-cigarettes without a warrant.
Is e-cigarette dangerous?
E-cigarettes contain harmful substances which can cause diseases such as asthma, lung cancer, and addiction.
Are e-cigarettes safer than traditional cigarettes?
The truth is that e-cigarettes are as risky as cigarettes and can cause lung cancer and other breathing problems. E-cigarettes should not be used as a substitute for traditional cigarettes. It does not help in quitting smoking. It also has addictive properties, and the users of traditional cigarettes who use e-cigarettes as an alternative end up becoming dual users of both cigarettes and e-cigarettes.
Is e-cigarette harmful to the mental growth of children?
E-cigarettes contain nicotine which can hinder the development of the brain of teenagers and children. It can also lead to abnormal brain activity. It is also one of the reasons why there has been a ban on selling electronic cigarettes in India.
