India joins the list of countries banning e-cigarettes (and IQOS and all other ENDS)

The Government of India has stopped the sale of e-cigarettes (and other electronic nicotine delivery systems [ENDS], including PMI’s IQOS heated tobacco product) through emergency legislation (called an “ordinance”), in which the president issues an order on behalf of the Cabinet when the Parliament is not in session.  The Ordinance will be considered by Parliament when it returns in December, which can overturn it or enact it into permanent law. Because India has a parliamentary system, the ordinance is likely to be passed into law.

The Ordinance came into effect on 18 September 2019 with its promulgation by the President of India and includes a complete ban on production, manufacturing, import, export, transport, sale (including online sale), distribution or advertising (including online advertising) of e-cigarettes. Violation of the law is has been made a cognizable offence, i.e. a police officer could arrest a violator without an arrest warrant. The penalties for violations of the law include one-year imprisonment or fine of up to Rs. 1 lakh (US$1400) or both for first offence and three years’ imprisonment and fine up to Rs. 5 lakh (US$7000) for a subsequent offence. The law also makes it punishable to store electronic-cigarettes with six-month imprisonment or fine up to Rs 50,000 (US$700) or both.

The owners of existing stocks of e-cigarettes, at the commencement of the law, will have to voluntarily declare and submit these stocks, without any unnecessary delay, with the nearest police station. The authorize officer at the police station will thereafter take necessary measures for its disposal as per the law. He is also vested with the powers to enter, search and seize without warrant in case of any suspected violation of the law by any person or place. Action for violation of the ordinance can be initiated only at the complaint of the authorized officer (i.e. any police officer not below the rank of a sub-inspector or other person so designated by the Central or State Government). The Ordinance also has a non-obstante clause i.e. the pro­visions of the Ordinance will prevail despite anything to the con­trary in any other law in-force in the country. However, the provisions of the Ordinance are in addition to and not in derogation of any other law prohibiting ENDS.

This move has been coming for the last year.

This year on World No Tobacco Day (May 30, 2019), a white paper from the Indian Council of Medical Research recommended a complete prohibition on all ENDS in India.  While the WHO FCTC Conference of Parties decision at its seventh session held in India in 2016 also recommended member countries to take appropriate steps including prohibiting these products. The ordinance, as recommended by experts and keeping with the earlier ministry of health advisory, includes ban on e-cigarettes including all forms of ENDS, including Heated Tobacco Products, e-Hookah and the like devices.

The initial steps were taken in the first term of the Narendra Modi Government which issued a detailed advisory to the states in August 2018 against the manufacture, sale and distribution of e-Cigarettes, Heated Tobacco  devices, Vape, e-Sheesha, e-Nicotine Flavoured Hookah, and the like products in the country. Keeping with this advisory, eighteen states and union territories (Odisha, Rajasthan, Meghalaya, Maharashtra, Karnataka, Kerala, Bihar, Uttar Pradesh, Jammu & Kashmir, Mizoram, Himachal Pradesh, Tamil Nadu, Puducherry, Jharkhand, Punjab, Gujarat, Nagaland, Haryana) had already notified and implemented the ban declaring nicotine as an unapproved drug under the existing Drugs and Cosmetics Acts and a poisonous substance under the Poisons Act within their respective jurisdictions. Several other enforcement agencies including the Central Board of Indirect Taxes and Customs (Anti-Smuggling Unit) and the Drug Controller General of India also directed all their officials to ensure compliance with the advisory.

Piush Ahluwalia, an ENDS user, challenged the advisory before the Delhi High Court which observed that the advisory was not binding in nature and the states were free to take an informed view on its implementation.

After this order of the Delhi High Court, the Ministry of Health and Family Welfare started moving to legislate a comprehensive ban on ENDS in the country. The government planned to implement the ban on ENDS as part of the first ‘100 days” of the 2^nd term of the Modi Government as an unapproved drug under the Drugs and Cosmetics Act, 1940. However, it finally decided to take the emergency law making route and implement the ban on ENDS by issuing a presidential ordinance.

The tobacco and vaping industries responded to this move of the Ministry of Health, suggesting that it will result in severe loss of revenue for tobacco farmers. This led to the Prime Minister constituting an empowered group of ministers in September 2019 led by Finance Minister Ms Nirmala Sitharaman, to review the health ministry’s proposal. At the recommendation of the group of ministers the cabinet at its meeting on September 18, 2019, accepted the Ministry of Health’s proposal to issue an ordinance and cleared the way for promulgation of the Prohibition of Electronic Cigarettes (production, manufacture, import, export, transport, sale, distribution, storage and advertisement) Ordinance, 2019 on the same day by the President of India.

India is not the only country to take this sensible step.  Over the last few months, I have visited Thailand and Brazil to support their governments’ policies to keep e-cigarettes and other ENDS out of their countries.  (Australia and other countries also prohibit ENDS.)  My message:  They are a lot smarter to keep these products out rather than having to clean up the mess we have here in the USA due to the FDA’s de facto embrace of e-cigarettes.

Amit Yadav, a postdoctoral fellow working with me, drafted this blog.