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An END to the ENDS: E-Cigarette Ban

The Union Finance Minister, Nirmala Sitharaman announced the prohibition of electronic cigarettes on 18 Sep 2019. This decision which was taken by the Union Cabinet, headed by Mr. Narendra Modi our Prime Minister, approving The Prohibition of Electronic Cigarettes (production, manufacture, import, export, transport, sale, distribution, storage and advertisement) Ordinance, 2019[1] (“ordinance”) and would be taken up by the Parliament in it’s next session to make it a law. The Ordinance bans the production, sale, import, export, distribution, storage, advertisement or transport of e-cigarettes.

What are “ENDS”?

E-cigarettes also known as ENDS: Electronic Nicotine delivery systems. ENDS include e-cigarettes, heat-not-burn-devices, e-sheesha, vapes, e-nicotine flavored hookah or other devices and like products. E-cigarettes do not burn any tobacco but use a heating element to vaporise the liquid nicotine, which the user inhales. There are growing health concerns since pure nicotine, the main ingredient for an e-cigarette is highly addictive and poisonous causing severe harm to the developing brain, and involving a death risk.

Why the need for an ordinance?  

Last year, the Union Ministry of Health, issued an advisory circular[2] to all the States and Union Territories for ensuring that e-cigarettes, vapes, sheesha, heat not burn devices, e-nicotine flavored hookahs, and any other device enabling nicotine delivery are not sold at places or even online, manufactured, imported, exported, transported or distributed. The Director General of Health Services (“DGHS”) issued a circular, stating that all Customs Authorities must comply with the Centre’s advisory. In a report released on World No Tobacco Day, the Indian Council for Medical Research (“ICMR”) report[3] also said that a total ban on e-cigarettes is essential since it can initiate nicotine addiction, cause serious respiratory diseases, have a negative effect on the cardiovascular system and harm the respiratory immune cell function.  However, the Delhi High Court stayed the operation of the circular by the DGHS, stating that the products do not fall within the definition of drugs under section 3(b) of the Drugs and Cosmetics Act.

Based on the government advisory, several states even banned e-cigarettes. Weighing the recommendations of the ICMR and the government advisory, the President of India promulgated an ordinance, after the same was approved by the Union Cabinet.

What does the Ordinance state?

  • Production, import, export, transportation, advertisement, distribution of e-cigarettes to be a cognizable offence, punishable with jail term as well as fine.
  • The owner or the occupier of a place which stocks e-cigarettes shall prepare a list of the stock and without any further delay submit the stock to the nearest authorised officer, who must then take necessary measure to dispose of the stock according to the law time being in force.
  • The Ordinance empowers the authorised officials to enter and conduct a search in a premises, if they have reason to believe that production, supply, storage, transportation or distribution or advertisement of electronic cigarettes takes place.
  • All first time violators will face imprisonment of upto one year or fine upto one lakh rupees or both. For second or subsequent offences, the punishment will be imprisonment upto three years or fine upto five lakh rupees or both.
  • The storage of e-cigarettes will be punishable with an imprisonment of upto six months or fine upto fifty thousand rupees or both.

[1] http://egazette.nic.in/WriteReadData/2019/212582.pdf

[2]https://mohfw.gov.in/sites/default/files/ADVISORY%20ON%20ELECTRONIC%20NICOTINE%20DELIVERY%20SYSTEMS%20ENDS.pdf

[3] https://www.icmr.nic.in/sites/default/files/whats_new/ICMR_NEWS.pdf

This Article is authored by – Drishti Vanvari, Student of Bachelor of Legal Science & Bachelor of Law (B.L.S. LL.B), Government Law college, Mumbai

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