Explaining the recent ban on e-cigarettes

Gayatri Mann - September 19, 2019

On Wednesday, the government promulgated an Ordinance to ban electronic cigarettes in India. In this context, we look at what are electronic cigarettes, what are the current regulations in place, and what the Ordinance seeks to do.

What are electronic cigarettes?

The Ordinance defines electronic cigarettes (e-cigarettes) as battery-operated devices that heat a substance, which may or may not contain nicotine, to create vapour for inhalation. These e-cigarettes can also contain different flavours such as menthol, mango, watermelon, and cucumber. Usually, e-cigarettes are shaped like conventional tobacco products (such as cigarettes, cigars, or hookahs), but they also take the form of everyday items such as pens and USB memory sticks.

Unlike traditional cigarettes, e-cigarettes do not contain tobacco and therefore are not regulated under the Cigarettes and Other Tobacco Products Act, 2003. This Act regulates the sale, production, and distribution of cigarettes and other tobacco products in India, and prohibits advertisement of cigarettes.

What are the international regulations for e-cigarettes?

India is a signatory to the WHO Framework Convention on Tobacco Control (WHO FCTC) which was developed in response to the globalisation of the tobacco epidemic. In 2014, the WHO FCTC invited all its signatories to consider prohibiting or regulating e-cigarettes in their countries. This was suggested due to emerging evidence on the negative health impact of these products which could result in lung cancer, cardiovascular diseases, and other illnesses associated with smoking.

Since then, several countries such as Brazil, Mexico, Singapore, and Thailand have banned the production, manufacture, and sale of e-cigarettes. Recently, the states of New York and Michigan in USA banned the sale of flavoured e-cigarettes. Whereas, in UK, the manufacture and sale of e-cigarettes has been allowed based on certain conditions. Further, the advertisement and promotion, and the levels of nicotine in e-cigarettes is also regulated.

Prior to the Ordinance, were e-cigarettes regulated in India?

In August 2018, the Ministry of Health and Family Welfare had released an advisory to all states requiring them to not approve any new e-cigarettes and restrict the sale and advertisements of e-cigarettes. Based on this advisory, 15 states including Delhi, Maharashtra, and Uttar Pradesh have since banned e-cigarettes. However, this advisory was challenged in the Delhi High Court in March 2019, which subsequently imposed a stay on the ban.

What does the Ordinance do?

The Ordinance prohibits the production, manufacture, import, export, transport, sale, distribution and advertisement of e-cigarettes in India. Any person who contravenes this provision will be punishable with imprisonment of up to one year, or a fine of one lakh rupees, or both. For any subsequent offence, the person will be punishable with an imprisonment of up to three years, along with a fine of up to five lakh rupees.

Additionally, storage of e-cigarettes will be punishable with an imprisonment of up to six months, or a fine of Rs 50,000 or both. Once the Ordinance comes into force (i.e., on September 18, 2019), the owners of existing stocks of e-cigarettes will have to declare and deposit these stocks at the nearest office of an authorised officer. Such an authorised officer may be a police officer (at least at the level of a sub-inspector), or any other officer as notified by the central or state government.

Note that, the Ordinance does not contain any provisions regarding possession or use of e-cigarettes. The Ordinance will be in force for the next six months, and must be approved by Parliament within six weeks of the commencement of the next session of Parliament. If it is not passed within this time frame, it will cease to be in force.

Constitution

Report of the Group of Interlocutors for Jammu and Kashmir

Pallavi - May 25, 2012

The central government appointed the J&K Interlocutors Group on October 13, 2010. The Group submitted the Report to the Home Ministry earlier this year. The Report was made public by the Home Ministry on May 24, 2012. It may be noted that under Article 370 of the Constitution special status has been granted to the State of Jammu and Kashmir. The power of the Parliament to legislate is restricted to defence, external affairs, communication and central elections. However, the President may with the concurrence of the state government extend other central laws to the state. Furthermore, in 1952, an agreement known as the Delhi Agreement was entered into between the state of Jammu and Kashmir and the central government. The Agreement too provided that the state government shall have sovereignty on all subjects except for matters specified above. However, since then some central laws relating to other subjects such as environment have been made applicable to the state. This blog post divides the recommendation into two broad headings: political; and socio-economic. It also looks at the roadmap proposed by the Group to achieve these recommendations. Political recommendations:

The Group recommended that a Constitutional Committee (CC) should be set up to review all the central Acts that have been extended to the state of Jammu and Kashmir since 1952. The CC should come out with its findings within six months. According to the Group, the CC should review whether, and to what extent, the application of central acts to the state has led to an erosion of the state's special status.
The word ‘Temporary’ in Article 370 should be replaced with ‘Special’ which has been used for certain states such as Assam, Nagaland, Andhra Pradesh[1].
Central laws shall only be made applicable to the state if they relate to the country's security or a vital economic interest, especially in the areas of energy and water resources.
Currently, the Governor is appointed by the President. The Group recommended that the state government shall give three names for consideration for the position to the President. However, the Governor shall finally be appointed by the President.
Separate Regional Councils for Jammu, Kashmir and Ladakh should be created and certain legislative, executive and financial powers should be devolved to them. The subjects that could be transferred to the Regional Council include prison reforms, public health, roads and bridges and fisheries.

Cultural, Economic and Social Recommendations:

There are 16 centrally sponsored schemes which are mostly funded by the centre. However, most of the funds for these schemes have not been utilised properly. The Group recommended that an effective system to monitor these schemes should be put in place.
An expert committee to review the state’s financial needs should be constituted.
The central government should tap the hydro-electricity potential of the state. Till date only 15 per cent of the potential has been harnessed. Additional hydro-electricity projects should be established for which the central government should meet the entire equity capital.
Industrial establishments and other buildings occupied by the security officers should be vacated.
Financial package of incentives on the pattern given to the North Eastern States should be given to the state.
The hilly, remote areas should be declared as special development zones.
The restrictions on the internet and mobile phones should be reviewed.

In order to fulfil these recommendations, the Interlocutor’s Group proposed the following roadmap:

The ‘stone pelters’ and political prisoners against whom no serious charges have been framed should be released.
There should an amendment and review of the Armed Forces Special Powers Act, 1990 and the Jammu and Kashmir Public Safety Act, 1978.
The state policy should provide for the return of Kashmiri Pandits.
A judicial commission to supervise the identification of bodies buried in the unmarked graves should be established.

The full report may be accessed here. Sources:

[1] Article 371 provides certain ‘special provisions’ with respect to states of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh and Sikkim

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Explaining the recent ban on e-cigarettes

Report of the Group of Interlocutors for Jammu and Kashmir

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