ENDS Promoting Cancer

Date :24-Sep-2019

IN A history-making decision, the Government of India has prohibited electronic cigarettes by the promulgation of the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Ordinance, 2019 on September 18. The effect of the ordinance is to ban production, manufacture, import, export, transport, sale, distribution, storage and advertisement of electronic cigarettes.

The decision was preceded by extensive scientific research conducted by eminent researcher Dr. Pankaj Chaturvedi of Tata Memorial Hospital, Mumbai and many others. There are several steps which were taken before the Ordinance came into effect. The Ministry of Health & Family Welfare, conducted a National Consultation on July 4, 2014, wherein it was recommended, the available scientific evidence indicate that Electronic Nicotine Delivery Systems (ENDS) are hazardous for an active as well as passive user and therefore constructive efforts should be made to curb its manufacture and sale. Pursuant to the said recommendations of the national consultations, Ministry of Health & Family Welfare constituted sub-groups to consider the issue of banning/regulating ENDS in India.

Thereafter, these sub-groups submitted their reports in August 2017, and inter-alia recommended imposing a complete ban on the manufacture, import and sale of ENDS. After examining the sub-group reports and orders issued by various State Governments to ban ENDS, it was realised that before issuing appropriate guidelines/advisory, to all State Governments/UT`s for regulating including banning the manufacture, import, sale and any kind of trade-in nicotine (other than for therapeutic use approved and prescribed under Drugs & Cosmetic Act) or any device such as ENDS or E-Cigarettes, a wider consultation/deliberation was organised in June 2018, wherein one of the key recommendations of the Consultation was that in view of the threat from new and emerging tobacco products like ENDS, Heat-Not-Burn products, the Ministry of Health & Family Welfare to develop its policy to prohibit such products based on the existing scientific evidence and global best practices and accordingly send advisories to the States. In the background of the available scientific evidence, reports/recommendations of sub-groups, orders of various State Governments, statutory provisions, judicial orders and global best practices on ENDS or e-Cigarettes and the like devices, the MoHFW on July 28, 2018, issued an advisory to the State Governments/Union Territories in larger public health interest and in order to prevent the initiation of ENDS by non-smokers and youth with special attention to vulnerable groups, to ensure that any ENDS including e-Cigarettes, Heat-Not-Burn devices, Vape, e-Sheesha, e-Nicotine Flavoured Hookah, and the like devices that enable nicotine delivery are not sold (including online sale), manufactured, distributed, traded, imported and advertised in their jurisdictions, except for the purpose and in the manner and to the extent, as may be approved under the Drugs and Cosmetics Act, 1940, and Rules made thereunder. The Central Board of Excise and Customs (Anti-Smuggling Unit), Department of Revenue had issued a Circular dated November 27th, 2018, to Customs Field Formations to ensure implementation of MoHFW’s Advisory by referring import consignments of ENDS including e-cigarettes, Heat-Not-Burn devices, Vape, e-Sheesha, e-Nicotine Flavoured Hookah, and the like devices/products to the Assistant/Deputy Drugs Controller in their jurisdiction, who may thereafter check the compliance of such goods in terms of Drugs and Cosmetics Act, 1940, and the rules made thereunder.

Based on the reports of the Assistant/Deputy Drugs Controller, non-compliant consignments should not be allowed clearance and appropriate action should be initiated for violation of provisions of the allied Act. The State Governments of Punjab, Maharashtra, Karnataka, Mizoram, Kerala, Jammu & Kashmir, Uttar Pradesh, Bihar have prohibited the manufacture, distribution, import and sale of Electronic Nicotine Delivery Systems (ENDS). States of Tamil Nadu, Punjab, Himachal Pradesh, Jharkhand and Union Territory of Puducherry have issued circulars/orders for the prohibition of ENDS and ENDS like products in the interest of public health. Apart from administrative orders, prosecutions have been launched in the State of Punjab in relation to the sale of electronic cigarettes.

As per the Order of sentence, the convict failed to produce any valid drug sale license. An E-cigarette contains nicotine in the chemical form which is addictive and lethal. In today’s society, the youth take up to such kind of addictive and potentially lethal products and the offenders involved in promoting and selling such products should be dealt with sternly by law for the welfare of society. The truth is, there was no regulatory regime to govern electronic cigarettes and as a consequence, manufacturers were manufacturing or smuggling electronic cigarettes into the country. It is rumoured that manufacturers of these electronic cigarettes are none other than cigarette manufactures themselves.

In other words, what have become difficult to do because of the effective ban on tobacco advertising under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA, 2003) was now being done by delivering nicotine through electronic cigarettes. As the ordinance indicates, India is a signatory to the World Health Organisation Framework Convention on Tobacco Control adopted in Geneva, Switzerland, on May 21, 2003, and brought into force on February 27, 2005. India has also committed itself to regulate electronic cigarettes at the Conference of Parties established under Article 23 of the said Convention which took a decision on October 18, 2014, to consider prohibiting or regulating the electronic cigarettes. For the first time in Indian legal history, we have acknowledged the fact that these devices are injurious to public health and proliferation of these products has a negative impact on public health and it is expedient to prohibit the production, manufacture, import, export, transport, sale, distribution, storage and advertisement of electronic cigarettes as enjoined by Article 47 of the Constitution of India. The ban is historic because the tobacco industry has been in denial mode that tobacco causes cancer and poses a threat to public health. (IPA) Courtesy: The Leaflet