Is the END in sight for e-cigarettes?

The ordinance was given top priority, as ban of e-cigarettes was among the priorities of the Narendra Modi government's first 100 days agenda in its second term.

Need for ordinance

The ordinance was necessitated after the Delhi High Court stayed the advisory of the Health Ministry issued in August 2018 asking states' drug controllers not to approve any new e-cigarettes and restrict the sale and advertisements of e-cigarettes, under Section 3 (b) of the Drugs and Cosmetics Act, 1940. Based on government advisory, several states including Delhi, Maharashtra, Uttar Pradesh, among others banned e-cigarettes.

The government advisory was challenged by e-cigarette makers in various high courts. Delhi and Bombay high courts have imposed a stay on the ban.

Both the courts cited that the Drugs and Cosmetics Act isn't applicable to e-cigarettes, as they don't fall under the category of drugs.

An ordinance remains in force for up to six weeks and when the Parliament reconvenes, the government has to introduce a bill to ban it.

But analysts say banning e-cigarettes while allowing tobacco-based cigarettes will be difficult for the government to justify before the courts.

"Enforcing a blanket ban on ENDS, instead of regulating them, while cigarettes and other tobacco products continue to be sold in the country under the ambit of COTPA, would violate Article 14 of India, which guarantees the fundamental right to equality and also Article 19(1)(g) of the Constitution, which allows the right to freedom to practise any profession, or to carry on any occupation, trade or business," said KK Aggarwal, a leading cardiologist and former president of Indian Medical Association.

Aggarwal said if the government desires to regulate ENDS, there is a law already existing,

The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and. Commerce, Production, Supply and Distribution) Act, 2003 (COTPA), which regulates cigarettes and other tobacco products in the country.

"COTPA prohibits advertising of tobacco products, sale of tobacco products to minors and smoking in public places etc. and thus addresses all concerns of the government under its various provisions," Aggarwal said.

The rationale behind the ban

E-cigarettes emerged as de-addiction products, to help smokers to switch to safer methods of nicotine consumption without the harmful impact of smoking conventional tobacco-made cigarettes.

The consumption of e-cigarettes and vapes, are much less in India compared to other countries, but it is catching up with the younger population. In 2017, the market research firm Euromonitor International valued India’s e-cigarette/vaping market at around $15.6 million and projected it to grow 60 percent annually until 2022. The market is dominated by imported brands, Indian companies like ITC and Godfrey Phillips have launched e-cigarette brands to tap into the growing demand among young consumers.

The problem with e-cigarettes is that they have evaded government health and safety regulation so far.

But the clamour to ban e-cigarettes gained traction in India, with USFDA assuming oversight over e-cigarettes by classifying them as drug delivery devices and applying the same regulations as tobacco products.

In the US, one out five high school teenager is vaping and it is reaching epidemic proportions.

Research had found that while e-cigarettes replace tobacco, they don't take away addiction. Moreover, many e-cigarettes are said to contain a harmful toxic substances linked to certain neurological and cardiac disorders. Studies are now been done to establish the link between seizures and nicotine consumption. Many countries are now following the suit, in regulating e-cigarettes.