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E-cigarettes are the battery powered tubes that transform nicotine- laced liquid into a steam like vapour, which is then inhaled by the user, or, as commonly called, “vaping”. These allow users to inhale nicotine vapour without fire, smoke, ash, or carbon monoxide. Proponents of e-cigarettes contend that vaping is not smoking, rather, vaping is merely inhaling e-cigarette vapour and then exhaling a wispy cloud that fades quickly. Inhaling traditional cigarettes are very unpleasant as they are manifested by nausea and coughing but it is not so with vaping. E-cigarettes also contain substances other than nicotine which are glycerin, artificial flavorings and preservatives. When a user sucks on an e-cigarette, a light emitting diode causes the tip to glow and next the atomizer turns the liquid nicotine into vapour which is than inhaled by the consumer.
There are two thoughts that emerge regarding nature of E-cigarette. First one being “are these e-cigarettes the new “evil weed” as it does contain nicotine which might entice people, particularly young people to smoke and perhaps get hooked on much stronger nicotine tobacco product.” The second thought is “are e-cigarettes a good and beneficial product, due to their low nicotine content, because it is believed that like nicotine it works as smoking reduction agent.” Presently, E- Cigarettes might have begun to make smoking look glamorous again which is why they have become a fast growing business in world as well as in India. The global market for these in 2015 was estimated to be of almost US$ 10 billion but the global growth rate is decreased rapidly after some countries brought out legislation to control the sale of these products. The reason for high sale of these cigarettes is that the companies advertise these products claiming that e-cigarettes are a healthier smoking alternative as they do not contain various cancer substances produced by tobacco, such as carbon monoxide or tar and also help quit smoking.
The companies have now adopted a new strategy of exercising significant control over public perception of their products through highly sophisticated advertising and other public relations campaign. The same policy is being used by the corporations to increase the sale of ENDS, by claiming it to be safe. It is a smokescreen because in reality inhalation is the quickest way to deliver this highly addictive and harmful nicotine to the brain. WHO’s studies on e-cigarettes concluded that there are insufficient scientific evidences to show that E-cigarettes are safe and therefore government should regulate there sale. India has more than 12 million smokers and 1 million people died alone in 2010 and 270 million are at high risk of diseases like cancer. These companies are using this data to scare people and misrepresent them that the e-cigarettes can act as a healthy substitute to the cigarettes and so they must buy it.
Many researches have been conducted to check whether the claims are true or not and there have been different results with respect to this. Some studies claim that E-cigarettes help in curbing smoking habits and the others have shown that they infact cause harm to the health. Among middle and high school students in U.S., 3.62 million were current users of ENDS in 2018 and its use has increased by 78% among high school students and 48% in middle school students. After reviewing researches between 2011 and 2013, the number of never-smoking youth who used e-cigarettes increased 3-fold, from 79,000 to more than 263,000 and intention to smoke conventional cigarettes was 43.9% among ever e-cigarette users and 21.5% among never users. U.S FDA has decided to ban flavored e-cigarettes at convenience stores to prevent new generation of nicotine addicts coming up. E-cigarette users had higher adjusted odds for having smoking intentions than never users. Those who never used other combustibles, never used noncombustible, or reported pro-tobacco advertisement exposure also had increased odds for smoking intentions. This is even a larger concern because this motivates the non-smokers to start using E- Cigarettes because they believe that it is not hazardous to life.
PREVALENT LEGAL PROVISIONS UNDER WHICH E-CIGARETTES CAN BE TREATED IN INDIA
The World Health Organization (WHO) has red flagged the growing market for e-cigarettes in India, underlining that the use of the devices is no less harmful than traditional cigarettes. Ahead of the WHO Framework Convention on Tobacco Control held in Moscow in October, and a meeting of South Asian nations in Delhi in September, India has been urged to push for regulations in the use of e-cigarettes. In India, smoking devices are easily available through online shopping portals and with little information out in the public domain about the ill-effects of e-cigarettes there is a misconception that it is less harmful than traditional cigarettes. This can be controlled under Section 10(b) and Section 10(d) of Drugs and Cosmetics Act, 1940 [“the Act”] because it provides for restriction on import of misbranded drugs whose elements are fulfilled as it gives false information to the public about the drug and also does not provide any information about its contents and its harmful effects.
Due to lack of implementation of regulations, the use of e-cigarettes has grown; they are easily accessible to even the non-smokers. From the current $ 3 billion, the market for e-cigarettes has grown 17 times by 2016. The WHO has also expressed concern over the notion that e-cigarettes aid in kicking the habit; it has cautioned that there is not enough evidence to conclude that e-cigarettes help users quit smoking. It is high time now before it’s too late to take the decision and the youngsters of the country fall into the trap laid down by these corporate houses. WHO report of 2014 confirms that the liquid inside is in fact addictive and hazardous for the life of human beings. Under Section 9(1)(c) of the Act, e-cigarettes can be treated as misbranded drug because it bears statement which makes false claim about the drug. Some drugs claim that these cigarettes help in de- addiction which is not at all true because no conclusive proofs have been found to corroborate them with the researches.
MEASURES THAT CAN BE TAKEN BY GOVERNMENT
There are many measures that can be taken by the government to control this problem. The first thing that needs to be done is to spread awareness among the people regarding the trap which has been laid down by the companies and enlighten their mind with truth, this can be done through advertisements, newspapers, radio channels, posters etc. This evil needs to be reduced from society. E- Cigarettes should be classified as tobacco related products and should thus be regulated by the Act. Similar measure was suggested by U.S. Food and Drug Administration by proposing expansion of regulatory authority over tobacco products to include electronic cigarettes. These products can be classified as tobacco related products because they contain drug in some amount which is found to be harmful by WHO. This would grant power to the government to regulate the sale of E- cigarettes under Section 10A of the Act. The interim measures that can be taken are that the awareness should be spread regarding harmful effects of e- cigarettes and online sale of these products need to be halted.
I.T.C. Limited should also get involved in the issue and make sure that these products are not made available to minors because it is causing the biggest harm. The other group that is highly affected is of the non- smokers who decide to start vaping because they think it is not harmful for health. These wrong perception have already penetrated into the society and it is the duty of government to control this and maintain good health of its citizens.
The writing of health warnings should be made compulsory on the packages as done in the case of cigarettes. These cigarettes are considered to be the tobacco related products in many countries such as Jamaica, Italy, Iceland, Hungary, Greece, Germany, France etc. The restriction on import should be made under Section 13(b) and 13(c) of the Act. The other statute which should deal with these products is The Cigarettes and Other Tobacco Products Act, 2003 and all the provisions of this act should apply on E- Cigarettes. It is very necessary to take actions as soon as possible to stop the fast growing consumption of e- cigarette. Packaging, labeling and advertisement everything need to be controlled otherwise misrepresentation to the customers will continue.
As already discussed above, the company manufacturing or selling E- Cigarettes are misrepresenting their products to be good for the health of people and keeping people in the dark about the truth about the products. So restrictions need to be put by the government to curb its spread because otherwise people become addictive to these kinds of goods and then it is very difficult to manage the situation. Here the false representation has been made to consumers and no prevalent rules specifically deal with E-Cigarettes. The producers should be thus made liable under the Consumer Protection Act, 1986.
ACTIONS ALREADY TAKEN IN THIS REGARD
The Delhi High Court in the case of Seema Sehgal v. Union of India has asked the Ministry of Health and Family Welfare to file an affidavit as to by when will the regulations governing E-cigarettes be brought about. In response to this center has sent an advisory to the state governments to ban E-cigarettes in August 2018. Today the trade of e-cigarettes is allowed, but it was recently banned in Maharashtra and Punjab and any shop found selling e-cigarettes in these two states of India will receive a prohibitory notice to immediately stop and bring to a civil action in the court of law. The other states which have sought ban on vape are Kerala, Karnataka, Maharashtra, Bihar and Uttar Pradesh. In the rest of the country, people can easily buy them in malls, in online shops and even on-board Air India flights at not so expensive prices. This action can be followed by other states as well, so that the sale of these drugs can be controlled and the big business houses should be said to pay fine in case they try to escape the laws made by the Parliament.
ABOUT THE AUTHOR(S)
Achal Mittal is a 3rd year law student at National Law University, Jodhpur and is interested in Criminal Law, Trade Law, Constitutional Law and International law.
Mehak is a first year student at Himachal Pradesh National Law University and is interested in Constitutional law and Family Law.