Progressive regulations rather than bans will improve public health
India has a history of imposing blanket bans on various goods or services, which is an extreme form of regulation. Let us take an example, is it appropriate for the Legislature to ban a mild alcoholic beverage like beer and at the same time allow manufacturing, consumption and sale of hard liquor like whiskey? Is it permissible for the authorities to ban chewing gums while permitting chewing of tobacco on the fallacious assumption that chewing gums may eventually lead the teens and young people to chewing of tobacco? The answer is obviously not.
On 18th September 2019, Ministry of Law and Justice through a Gazette Notification (“Ordinance”) banned the sale, storage and manufacture of e-cigarettes. The Union Finance Minister Nirmala Sitharaman said the decision was taken following recommendation of a Group of Ministers (GoM), headed by her.The said Ordinance stood repealed by the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale Distribution, Storage and Advertisement) Act, 2019 (“E-Cigarettes Act”).
The government said the decision to ban e-cigarettes is aimed at protecting the youth, the section that is most vulnerable to the health hazards of e-cigarettes. Justifying the decision,“E-cigarettes were promoted as a way to get people out of their smoking habits, but reports have shown that many people are not using it as a weaning mechanism but are rather addicted to it.”
These novel products come with attractive appearances and multiple flavors and their use has increased exponentially and has acquired epidemic proportions in developed countries, especially among youth and children,the government mentioned in a statement.It said the ban on e-cigarettes will help “protect population, especially the youth and children, from the risk of addiction through e-cigarettes.”
Power to regulate
A cumulative reading of the Constitutional provisions would clearly establish that the power to exercise control does not include power to completely ban the entire industry. The ordinary meaning of and judicial interpretation of the word “control” only signifies the power to regulate and not a power to kill or damage or destroy the industry by complete prohibition. The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 or COTPA takes care of this legal requirement and by laying down how tobacco industry is sought to be regulated. Unlike COTPA, the E-cigarettes Act completely prohibits the manufacture, production, distribution, and sale of e-cigarettes.
Additionally, the E-Cigarettes Act imposes unreasonable restrictions, and the said Act is violative of Articles 14 and 19 of the Constitution of India. It is significant to note that there is no direct mention of prohibition of use of tobacco in the Directive Principles of State Policy. Article 47 provides for duty of the State to raise the level of nutrition and the standard of living and to improve public health. It specifically mentions that the State shall endeavor to bring about prohibition of the consumption of intoxicating drinks and drugs which are injurious to health. There is no provision for the State to control / prohibit use of tobacco in its various forms. This lends support to the contention that carrying on business of tobacco products is a legitimate activity which can however be regulated by the State but under no circumstances there can be total ban on production and sale of any tobacco product.
The conclusion from a global perspective based on sound research appears to be that e-cigarettes are safer to the extent of 95% less harmful than combusted cigarettes. Some harm from sustained exposure to low levels of toxins may yet emerge but, the magnitude is considerably less than sustained tobacco smoking.Nicotine is not the main culprit in cigarettes. Various authentic reports indicate that there are more than seven thousand chemicals in tobacco smoke and at least 250 are known to be harmful, including hydrogen cyanide, carbon monoxide and ammonia that make cigarettes deadly. Even with regard to nicotine the same is found in many everyday food items – potatoes, eggplant, cauliflower, tomatoes, etc. The substance is only as addictive as caffeine and in some cases it is beneficial. Public health experts worldwide emphasize the need to decouple nicotine from tobacco with e-cigarettes playing a major role in that.
It is fallacious thinking and reasoning that minors are being lured into tobacco use through e-cigarettes. The research carried out at some of the leading universities indicate that roughly 10 – 20 % of teens aged 11 – 16 have tried a vaping device at least once, however only 3 % use them regularly. Daily users among this age group were smokers. Only 01 – 0.5 % of teens who have never smoked are regular users of a vaping device. The available evidence does not support the “gateway hypothesis” that e-cigarettes encourage nicotine addiction.
[author title=”Lalit Bhasin” image=”http://”]Lalit Bhasin is the managing partner of Bhasin & Company, and president of the Society of Indian Law Firms and the Bar Association of India[/author]