Aditya Shekhar & Abhishek Choudhary | National Law University, Jodhpur | 10th November 2019
INTRODUCTION
Recently the Government of India had passed an ordinance to ban the import, export and advertisement of sale of E-cigarettes in the country. The contention made by the Government is that sale of e-cigarettes is adversely affects the youth of the country and passed the ordinance in public health interest. Electronic cigarette are battery operated devices that produce aerosol by heating a solution containing nicotine[1], which is the addictive substance in combustible cigarettes[2]. These includes all forms of electronic nicotine delivery system heat not burn product, e hookah and similar device[3]. It is a technology which consist of a prefilled and refillable cartridge which contains nicotine in liquid form other e-liquids, an atomizer, a heating element and a battery. By inhaling, the liquid present in e-cigarettes starts heating and forms vapour which give effect as like tobacco products. It replaces the use of conventional cigarettes, by burning of tobacco. These e-cigarettes are less harmful to heath of the consumer than that of conventional cigarettes[4].
HARMFUL EFFECTS OF E-CIGARETTES
- The formation of Formaldehyde-releasing agents during the period of heating and vaporization of e-cigarette liquid leads to formation of cancer.[5]
- The presence of propylene glycol in e-cigarettes which is a known irritant, the inhalation of propylene glycol may cause breathing disorders and problems such as asthma and other inflammatory respiratory diseases.[6]
- The use of E-cigarettes give addiction and rise to exposure to nicotine and other toxicants from passive and continuous smoking.[7]
In a study, negligible levels of formaldehyde were released at lower EC [e-cigarette] setting and that high levels of formaldehyde were only released under unrealistic experimental conditions, or specifically during “dry puffs[8].”‘ It is concluded after reviewing a number of other studies that ” although e-liquid can be heated to a temperature which leads to a release of aldehydes, the resulting aerosol is aversive to vapers and so poses no health risk.[9]
BENEFITS OF E-CIGARETTES
There are claims that e-cigarettes are less harmful than traditional tobacco products and that e-cigarettes could help smokers to quit. However, such evidence is considered limited and inconclusive up to now[10]. The presence of nicotine in e-cigarettes is less in amount as compared to conventional cigarettes which is less harmful. As we know that e-cigarettes much safer than that of conventional cigarettes, thus, complete ban on e-cigarettes will deprive the consumer to more harmful smoking alternative like conventional cigarettes. The precautionary principle[11] explains that eliminating the potential benefits of e-cigarettes is potential harm for current smokers.
BANNING OF E-CIGARETTES
The banning of e-cigarettes by Indian Government is not complete solution to restrict the use of it. There are other various tobacco products such conventional cigarettes, marijuana, gutkha, khaini, jarda and products which contains high amount tobacco and nicotine which has to be banned but these products are easily available in the market instead of banning these products the banning e-cigarettes is not justified. When the supply of e-cigarettes reduced then demand for the traditional cigarettes and substitute goods increases in the consumers of e-cigarettes.
I. WHY E-CIGARETTES MUST NOT BE BANNED IN INDIA.
The background on which the centre has passed the ordinance to ban e-cigarettes seems a decision taken in haste. The proposed health concerns which is cited to be the reason for the ban comes out to be empirically vague and unjustified. There is no concrete data and research available yet which has tabulated the projected health risks involving use of vaping and e-cigarettes. The genesis of all this e-cigarettes hoopla comes from the demise of six people in the United States of America along with four hundred fifty people suffering from a serious pulmonary disease which is yet undiscovered and is linked to e-cigarettes. In the USA, the vaping and e-cigarette companies which allege e-cigarettes to be less harmful than traditional tobacco cigarettes need to provide the FDA (Food and Drug Administration) with proper evidence to substantiate their point.
The Indian scenario stands differed in this regard. All the data relied upon for the ban of e-cigarettes is undergirded by the data of the US. The concern of young population consuming e-cigarettes is also of the US population and not of the Indian population. 100 million people smoke traditional tobacco, while 300 million people consume tobacco by chewing them. Tobacco is the core cause of the posed health issues such as cardio-vascular disease, lung cancer, mouth cancer and respiratory diseases. Framework Convention on Tobacco Control (FCTC) is the convention which keeps a check on the world tobacco usage. India is a signatory to the mentioned Convention. Tobacco consumption in India has become a part and parcel for the one consuming it. A very few sections of the tobacco consumers are exposed to the new generation e-cigarettes, the reason being these e-cigarettes are sold online and are not available on conventional retail shops. Indian Policy makers must not target E-cigarettes with such a tough blow. E-cigarettes are just one of the many forms of smoking devices or commodities available in the Indian market. Moreover, the alleged health concerns are not backed by any data tabulated by Indian researchers dealing with the India Population. This is the major flaw in the hasty ordinance passed. Also, we cannot miss on the fact that India was a potential future market for the major vaping companies like Juul Labs and Phillip Morris International which had their intentions locked to invest in India. This might further degrade the already stumbling Indian Economy.
While giving a constructive analysis regarding the ban, we being meticulous in our approach, we cannot ignore the benefits which the traditional companies are reaping due to it. Companies like ITC and Godfrey Philip saw exponential rise in the stocks at the Bombay Stock Exchange. In an interview with Riccardo Polosa, professor at department of clinical and experimental medicine, University of Catania, Italy, stated that nicotine doesn’t cause Lung Cancer or Cardio-vascular disease or Pulmonary disease, it is Tar which causes the disease.[12] According to him toxicological tests on these new products that check the level of toxins or carcinogens in aerosols would result in a 90-99% less of what would be found in traditional tobacco smoke.[13] The Indian market does not have any e-cigarette manufacturers.
II. THE FARMER’S AND THE E-CIGARETTES.
Farmers are clamorously against the production of e-cigarettes. There main concern is the harm which their tobacco production bears due to these vaping technique’s which are the new generation products. The farmers are already oppressed by heavy taxation and other burdens and thus they do not support the consumption of e-cigarettes. As already explained e-cigarettes are ENDS (Electronic Nicotine Delivery System) and use only Nicotine. Indian markets have no such methods to extract the required Nicotine to manufacture e-cigarettes. Thus, the farmers tobacco is exported and the production of e-cigarettes do not help farmers in any manner whatsoever.
The Protectionist discrimination adopted by U.S. law banning clove cigarettes on one hand and leaving domestically produced methanol on the other hand raises the rising concern about proper policy implementation in relation with e-cigarettes. In the clove cigarettes case Indonesia alleged that Section 907, which was signed into law on 22 June 2009, prohibits, among other things, the production or sale in the United States of cigarettes containing certain additives, including clove, but would continue to permit the production and sale of other cigarettes, including cigarettes containing menthol. Indonesia alleged that Section 907 is inconsistent, inter alia, with Article III (4) of the GATT 1994, Article 2 of the TBT Agreement, and various provisions of the SPS Agreement.[14] The protectionist discrimination was the bone of contention. The case gives us directions to sculpt our policies regarding e-cigarettes in such a fashion as to not allow other countries policies burden our economy.[15]
III. THE ENVIONMENTAL CONCERNS ATTACHED WITH E-CIGARETTES.
With the recent climatic changes, we cannot afford to rule out the possibility of e-cigarettes causing environmental harm. The e-waste generated is a major concern. The e-waste generated by e-cigarettes is no less. The waste generated is shipped from western countries to developing nations. The developing countries are blatantly used as dumping grounds which places major environmental hazards. The e-cigarettes’ residue includes nicotine filled pods containing plastics, nicotine residue and electronic circuitry which are qualified hazardous waste. The disposable e-cigarettes are used for a short period of time and pose highest environmental cost. The residue also contains heavy metals such as mercury, bromines lead and battery acid, which causes immense harm to the soil quality. However, we must not sway away from the fact that e-cigarettes must not come under the ambit of tobacco products. E-cigarettes do not use tobacco. They use nicotine. In India, E-waste is covered in Schedule 3 of “The Hazardous Wastes (Management and Handling) Rules, 2003”[16]. Under Schedule 3, E-waste is defined as “Waste Electrical and Electronic Equipment including all components, sub-assemblies and their fractions except batteries falling under these rules.”[17] The framework regulating e-cigarettes must not derive its power from other tobacco-controlling issues. The government of India has taken sound decisions in the law making to regulate hazardous waste in India. Poor implementation of these laws and unawareness in the lower strata of the Indian population has resulted in e-waste to as a potential monster. Public health laws are the legal tools that populations utilize to “assure the conditions for people to be healthy.”[18]
Although many public health laws in the twentieth century targeted NCDs, both the scholarly and popular critique of public health laws in this century have largely focused on laws addressing obesity and, to a lesser extent, smoking.[19] To critics, the obesity epidemic is largely the result of individual choices, such as whether to exercise or to eat fast food.[20] At least when made by competent adults, critics contend, those individual choices should be respected.[21] Laws seeking to prohibit or even alter individual choices do not address public harms, rather they are paternalistic attempts by the state to interfere in an individual’s choice for the individual’s own good.[22]
RECOMMENDATIONS AND SUGGESTIONS
Ban is not a solution but the regulation put more impact on the trade of E-Cigarettes. That to take so hastily without studying the future aspects related to the market and sale of such products along with the revenue generated. When economics comes into play, we must consider each and every aspect of the actions taken by the government. E-cigarettes as well as traditional tobacco cigarettes are demerit goods. Interdiction of E-cigarettes kills innovation and hampers availability of substitutes which will eventually increase the demand of traditional cigarettes. This will incur a major health cost on the society. Also, illegal trade has reached to $25.7 billion. Instead E-cigarettes must be regulated along with other tobacco products. But e-cigarettes should not be treated explicitly as a tobacco product as it also comes under the ambit of electronic machine.
The World Health Organization (WHO) Study Group on Tobacco Product Regulation gave its first report in 2009 where it addressed the concern about e-cigarettes and advised a precautionary approach since not much study was done regarding the cessation and safety and harm reduction efficacy of e-cigarettes.[23] E-cigarettes should be regulated, but not be subject to the same rules as medicinal products unless they are presented as having curative or preventive properties. Those for which no such claims are made should contain no more than 30 mg/ml of nicotine, should carry health warnings and should not be sold to anyone under 18 years old.[24]
Banning is certainly not a prudent action as it compels the smoking population to divert towards conventional smoking or tobacco products to meet their daily nicotine urges. The Tobacco economy in India is large compared to many other countries. An approximate of 10% of the world’s tobacco smokers are in India. This poses a huge concern about the public health at large since banning e-cigarettes means shoving the population to greater health hazards caused by tobacco products. The ban is also strangulating potential employment in this industry. Allowing construction of a proper e-cigarette industry regulated by rules and restrictions would not only boost Indian Economy but will also resolve the employment hue and cry to some extent. This will also help e-cigarettes to come up as legal alternative to the much harmful traditional cigarettes. The ban is indirectly playing a major role in corroding Public Health which seems to be incoherent with the proposed motive of the Government regarding the justification of the ban imposed. The most effective way to reduce tobacco use is to raise the price of tobacco through tax increases. Higher prices discourage youth from initiating cigarette smoking and encourage current smokers to quit. Same methods of proper taxation can be employed for e-cigarettes as well. Studies of price elasticities in India find that a 10% increase in tobacco prices is estimated to reduce bidi consumption by 9.1% and cigarette consumption by 2.6%.[25]
Regulatory measures regarding e-cigarettes should primarily address Quality Standards and monitoring of e-cigarettes and e-liquids and should require the following: (1) evidence that good manufacturing practice (GMP) has been followed; (2) child-proof caps on fluid containers; (3) official documentation reporting on the contents of e-cigarette fluids to regulators; (4) clear, accurate and detailed labelling about the contents and the hazards associated with e-cigarette use.[26]
The regulation of was not spared from debates over their consumption as either drug delivery devices or tobacco products. In Sottera Inc. v. Food and Drug Administration[27]the court held that e-cigarettes could not be regulated as drug delivery devices since they were not being marketed for therapeutic purposes such as smoking cessation. However, the court held that the FDA could regulate it under Tobacco control authority. However, it’s a long way ahead for India. In our context we must not restrict our regulations till tobacco control. Regulations concerning the electronic aspect of the e-cigarettes must not be ignored.
CONCLUSION
With the various authorities cited
the authors of this article unequivocally conclude that the ban on e-cigarettes
is no less than juxtaposing the contraries. On one hand governments motive is
to curb the use of tobacco and similar products while on the other hand by
banning e-cigarettes they have closed the gates to a relatively safer
substitute to the tobacco products. This decision taken so hastily without the
support of proper empirical data and research highlights the sorry state of
affairs. We have provided the rationale behind the benefits of having
e-cigarettes as an alternative. The research question of the ambiguity attached
with the ban has been dealt with. Concluding it the authors would like to
remark that e-cigarettes has a potential market in India and its sale must be
legalised in accordance with the recommendations mentioned along with other
possible recommendations. Reiterating it, banning it is not the most prudent
way to deal with it. Regulations and Policy Implementation is the proper
solution. The vexed question of e-cigarettes to be hazardous stands negated.
Economics and law fail miserably in this dastard decision taken by the
government. It is also clearly stated that the authors are not advertising and
supporting e-cigarettes. This research only criticises the ban imposed on them.
We agree that tobacco products as well as e-cigarettes come under the ambit of
demerit goods. Their consumption should be tactically regulated to promote
public health at large. The environment of E-Cigarettes in India is different
than other countries, E-Cigarettes should be regulated less aggressively than
the traditional tobacco product in India, Major concern of the government is to
lower the rate of the tobacco in the country. But by the prohibition of
E-Cigarettes there will be increase in the consumption of traditional
cigarettes and the government generate higher revenue by the sale of
conventional cigarettes.
[1] ET Bureau, India stubs out e-cigarettes over the health risk, Sep 19, 2019, 06.56 AM IST Read more at://economictimes.indiatimes.com/articleshow/71187730.cms?from=mdr&utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
[2] Sushmi Dey, Fearing ‘epidemic among kids, young’, govt bans e-cigarettes, Sep 19, 2019, 09:15 IST Read more at: http://timesofindia.indiatimes.com/articleshow/71192894.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
[3] Id.
[4] McNeill A, Brose LS, Calder R, Hitch man SC, Hajek P, McRobbie H. 2015. E-Cigarettes: An Evidence Update. A Report Commissioned by Public Health England London: Public Health Engl; https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/457102/Ecigarettes_an_evidence_update_A_report_commissioned_by_Public_Health_England_FINAL.pdf.
[5] Legislative Council Panel on Health Serv., Progress of Tobacco Control Measure, LC Paper No. CB (2)1456/14-15 July 2015, http://www.legco.gov.hk/yrl4-15/english/panels/hs/papers/hs2Ol50518cb2- 1456-7-e.pdf.
[6] Id.
[7] Id.
[8] Supra note 3.
[9] Council Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use [2001] O.J. (L 311) 1, 3.
[10] Supra note 4.
[11] Daniela Saitta et al., Achieving appropriate regulations for electronic cigarettes, 5 THERAPEUTIC ADVANCES CHRONIC DISEASE 50 (2014).
[12] Riccardo Polosa, I cannot see why e-cigarettes should be banned… if you switch to combustion free product harm will come down, The Times of India, Sep 20, 2019, 9:05 PM IST, on pg. 10.
[13] Id.
[14] Article III (4) of the GATT 1994 Available at https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds406_e.htm last visited on 1/10/2019 22:11 IST.
[15] Clove International Case, Indonesia v. United States, United States – Measures Affecting the Production and Sale of Clove Cigarettes, World Trade Organization (WTO) Panel, WT/DS406/R, circulated to WTO Members 2 September 2011.
[16] Schedule 3, The Hazardous Wastes (Management and Handling) Rules, 2003.
[17] Id.
[18] Comm. for the study of the future of Public Health, Inst. Of Med, The Future of Public Health 19 (Nat’l Acad. Press 1988).
[19] Parmet, Wendy E., Paternilism, Self-Governance, and Public Health: The Case of E-Cigarettes” (2016). School of Law Faculty Publications. 70.
[20] Richard A. Epstein, What (Not) to do about Obesity: A Moderate Aristotelian Answer, 93 GEO. L.J. 1361,1363(2005).
[21] Id.
[22] Richard A. Epstein, In Defense of the Old Public Health: The Legal Framework for the Regulation of Public Health, 69 BROOK. L. REV. 1421,1427 (2004).
[23] Daniela Saitta, Giancarlo Antonia, et al; Achieving appropriate regulations for electronic cigarettes, Ther. Adv. Chronic. Dis, Vol 5(2), 2014, 50-61.
[24] Id.
[25] Rijo M John, R. Kavita Rao, et Al; Economics of Tobacco and Tobacco Taxation in India, TTI, 2010, https://www.tobaccofreekids.org/assets/global/pdfs/en/India_tobacco_taxes_report_en.pdf
[26] Supra note 8.
[27] Sottera, Inc. v. Food and Drug Admin., 627 F.3d 891 (D.C.Cir.2010).
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