This article on ‘Laws governing E-Cigarettes in India’ was written by Ishika Agrawal, an intern at Legal Upanishad.
The consumption of electronic cigarettes has increased a lot in the past few years. These cigarettes come in two different types: an electronic nicotine delivery system (ENDS) and an electronic non-nicotine delivery system (ENNDS). These systems (ENDS) produce a liquid with the help of a heating element, which is then vaporised and, in turn, inhaled by the users in the form of an aerosol consisting of varying amounts of nicotine, flavouring agents, propylene glycol, and other additives and toxic substances. ENNDS are almost similar to ENDS, with a slight difference in that the e-liquids present in these systems are marketed as nicotine-free; however, in practice, the products, claiming to be nicotine-free, are found to contain nicotine.
ENDS are the subject of a public health debate among tobacco control advocates that has created more conflict as their use has increased in recent years. This article relates to the laws that govern the use of e-cigarettes in India.
WHO Report on the Global Tobacco Epidemic, 2021
The World Health Organisation (WHO) keeps a constant check on the usage of e-cigarettes by regularly monitoring and reviewing the evidence on ENDS and health and providing guidance to governments. The WHO Framework Convention for Tobacco Control (FCTC) is an international agreement aiming to reduce the consumption of tobacco products, reduce tobacco advertising, reduce exposure to second-hand smoking, and regulate tobacco packaging.
WHO, in its report on the Global Tobacco Epidemic, published in 2021, stated that as of 2020, there were only two countries in the WHO European Regions that banned ENDS/ENNDS. Turkey has banned the import of ENDS (except for personal consumption), and Turkmenistan bans the sale of ENDS and ENNDS. Most European countries still permit the trade of ENDS and ENNDS. They have, however, implemented one or more measures to regulate them, either in full or in part. They consist of the following:
- a prohibition on using e-cigarettes in public indoor places;
- a prohibition on advertising, marketing, and sponsorship; and
- The use of graphic health warnings on packaging; taxing; sales age limitations; flavouring prohibitions or restrictions
Regulation of E-cigarettes in India
Earlier in India, there was neither any research or studies conducted nor any regulatory framework enacted to check on the usage of e-cigarettes. In May 2019, the India Council for Medical Research suggested an absolute ban on e-cigarettes, stating that such devices become a means of smoking and have the ability to make a nonsmoker addicted to nicotine.
The first Indian state to impose a complete ban on vaping was Punjab in 2014. Since then, 12 other states have also imposed a ban on vaping products. On May 31, 2019, Maharashtra and Rajasthan also enacted a ban on vaping products. Because of the absence of clear rules, regulations, and guidelines, different states took different approaches to implementing such bans. They did so with the help of the Drugs and Cosmetics Act, the Cigarettes and Other Tobacco Products Act, or the Poisons Act.
The health ministry issued an advisory in August 2018 asking all states and union territories to entirely ban ENDS and any similar nicotine delivery products in their jurisdiction. Following this advice, the Ministry of Electronics and Information Technology (MEITY) suggested a change to the Information (Intermediary Guidelines) Rules, 2018 to prohibit the advertisement of e-cigarettes. The Central Board of Indirect Taxes and Customs noted in its circular that the drug controller would be the sole person who would clear e-cigarette import consignments.
At the time India outlawed e-cigarettes in 2019, there were 106 million adult smokers. In order to protect people from harm and any issues related to or incidental to it, the government enacted the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage, and Advertisement) Act, 2019 to outlaw the production, manufacture, import, export, transport, sale, distribution, storage, and advertisement of electronic cigarettes.
Section 4(i) of the Act prohibits a person from producing, manufacturing, importing, exporting, transporting, selling, and distributing electronic cigarettes, either directly or indirectly, whether as a finished product or as a semi-finished product. The second clause of this section prohibits the advertisement of e-cigarettes, either directly or indirectly, so as to promote their use.
Section 5 of the Act prohibits the storage of electronic cigarettes.
Section 6(1) of the Act gives the authorised officer the authority to go into and look into any area where e-cigarette business is in operation, or where such items are produced, supplied, distributed, stored, or transported, or where any advertisement is carried on. As per Section 6(2), the authorised officer can seize any record or property that may be used for any purposes mentioned in sub-section 1, and if he believes this to be true, he may capture any person under his charge and present him before the Court of Judicial Magistrate. As per Section 6(4) of the Act, all searches, seizures, and attachments shall be made according to the provisions of CrPC, 1973.
According to Section 7 of the Act, violators of Section 4 are subject to a term of imprisonment not exceeding one year, a fine not exceeding one lakh rupees, or both; for a subsequent offence, the sentence may be up to three years in prison and a penalty up to 500000 rupees.
According to Section 8 of the Act, violators of Section 5 are subject to a period of imprisonment that may not exceed six months, a penalty that may not exceed 50,000 rupees, or both.
The jurisdiction and trial of crimes are outlined in Section 9 of the Act. Any person who violates Sections 4 or 5 will be tried for the offence in any court where he is eligible to be tried under any law currently in effect, according to Subsection 1 of this Section. All offences against this act are to be tried by the Court of Judicial Magistrate of the First Class according to the trial method outlined in CrPC, 1973, according to subsection 2 of this section.
According to Section 10, e-cigarette stocks must be eliminated according to the rules in Chapter XXXIV of the CrPC if it is demonstrated that the stocks confiscated by the authorised officer under this act are stocks of e-cigarettes.
A crime under Section 4 shall be cognizable in accordance with Section 13, notwithstanding anything to the contrary in the CrPC, 1973. No litigation, prosecution, or other legal action shall be brought against the Union Government, any State Government, or any officer of the Union Government or any State Government for anything done or expected to be done under this Act in good faith, according to Section 16.
Regulation of E-cigarettes around the Globe
Recently, Australia has become the 47th country to impose a ban on the sale of vapes after India, Singapore, Thailand, Japan, Argentina, and other countries that had imposed a ban earlier. At present, there are a total of 30 countries around the world where ENDS are banned, while there are some countries in which they are regulated in the form of consumer products, pharmaceutical products, or other categories.
The analysis of the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage, and Advertisement) Act, 2019 shows that the Indian Government has enacted a strict law in order to monitor and regulate e-cigarettes. However, it has been seen that buyers, especially youngsters, are still buying and consuming e-cigarettes via different websites, tobacco vendors, and general stores. Even in many cafes and clubs, hookahs are provided. A study shows that despite having a ban on e-cigarettes to protect the young generation from the harmful effects of vaping, e-cigarettes still remain one of the major challenges in India.
- The Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019
- Neetu Chandra Sharma, ‘Back Back 12 states ban e-cigarettes, health ministry urges all to follow’, LiveMint, 13 March 2019, available at: https://www.livemint.com/news/india/12-states-ban-e-cigarettes-health-ministry-urges-all-to-follow-1552447122172.html
- ‘Global Tobacco Epidemic’, Clear IAS, 13 September 2023, available at: https://www.clearias.com/global-tobacco-epidemic/#:~:text=Prohibition%20of%20Electronic%20Cigarettes%20Act,public%20health%2C%20especially%20among%20youth.