The ordinance proposes maximum imprisonment of up to one year along with a fine of Rs 1 lakh for first-time violators, and imprisonment of upto 3 yrs & fine upto Rs 5 lakh for subsequent offences.
The Union Cabinet approved an ordinance banning the electronic nicotine delivery systems (ENDS) or e-cigarettes as they are popularly referred to as.
The ordinance bans production, manufacturing, import or export, transport, sale, distribution, storage and advertising related to e-cigarettes, has now been sent to President Ram Nath Kovind for his nod.
The Finance Minister Nirmala Sitharaman said the ordinance will be taken up in the next Parliament session to make it a law.
The ordinance proposes maximum imprisonment of up to one year along with a fine of Rs 1 lakh for first-time violators, and imprisonment of up to three years & fines up to Rs five lakh for subsequent offences.
Sitharaman said e-cigarettes are being used as a style statement, and the government wants to stop the contagion before it spreads.
"Reports say that there are some who are probably getting into the habit of e-cigarettes as it seems cool. It is believed that there are more than 400 brands, none of which is manufactured yet in India. And they come in over 150 flavours," Sitharaman said.
The Health Ministry had proposed to ban the devices in public interest, saying it was needed to ensure e-cigarettes don't become an "epidemic" among children and young adults.
The Prohibition of E-cigarettes Ordinance, 2019, was recently examined by a Group of Ministers (GoM) following directions from the Prime Minister's Office.
The government also weighed in the recommendations of Indian Council of Medical Research (ICMR) for complete prohibition of e-cigarettes
Banning alternative smoking devices like e-cigarettes, heat-not-burn smoking devices, vape and e-nicotine flavoured hookahs was among the key priorities of the first 100-days agenda of the Narendra Modi government in its second term.
Why the need for an ordinance?
The ordinance was necessitated after the Delhi and Bombay high courts stayed the advisory of the Health Ministry issued in last year 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.
Tobacco-based cigarette vs e-cigarette
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.
Reactions on ban
While health experts have welcomed the ban. There were other analysts who said banning e-cigarettes while allowing tobacco-based cigarettes will be difficult for the government to justify before the courts.
The Association of Vapers India (AVI), an organisation that represents e-cigarette users across the country, said it is a black day for 11 crore smokers in India who have been deprived of safer options.
AVI said it will explore legal options to challenge the ordinance.
“From the start, the government has not been considerate about public health or public welfare, backing biased scientific evidence which has been rebutted by scientists from across the world for cherry-picking and misinterpreting research to target Electronic Nicotine Delivery Systems (ENDS)." said Samrat Chowdhery, AVI director.
"What appears to matter more to the government is protecting its 28 percent stake in the country’s cigarette monopoly ITC. So hellbent was the government on a ban that it also banned any research into ENDS so that the facts about their relative safety to smoking could be subdued,” Chaudhary added.
“The ordinance is ultra vires to the constitutional framework. This has deprived people of their freedom of choice. The government should have thought about it progressively and in the larger pursuit of public policy on health,” said Farrukh Khan, senior Delhi HC lawyer, partner at Diwan Advocates.
But a state FDA commissioner who didn't want to be named welcomed the decision.
"We have recommended the government long time ago to ban e-cigarettes, as it is easy to do in its infancy, rather than wait till it becomes a big problem like in US," the official said.
The official rejected the argument that the government is pro-tobacco industry.
"Lakhs of farmers are relying on tobacco cultivation for livelihood, we are already regulating tobacco industry under Cigarettes and Other Tobacco Products Act (COPTA), by imposing restrictions on public smoking, warning labels and high taxes, we also banned gutka where people chew tobacco with supari, but the implementation has been a problem," the official said.
"We do not have sufficient research to understand the long-term health effects of e cigarettes. There is no ‘good smoke’ and all forms of smoke are bad," said Dr. Dharminder Nagar, MD of Paras Healthcare.
"The major difference between conventional and e-cigarettes is that the latter do not contain tobacco. However, tobacco is not the only culprit in a cigarette smoke; there is an entire array of other harmful chemicals, many of which are also present in e cigarettes. This is why the approach to present e cigarettes as a “safer” option is highly flawed," Nagar added.
Nagar also called for elimination of smoke and tobacco in all forms.