Legislative Review- The Prohibition of Electronic Cigarettes Act ,2019

– Keshav Kulshrestha and Rahul Jacob

Introduction

In December 2019, the Government of India, through an act named The Prohibition of Electronic Cigarettes Act 2019, announced the nationwide ban on the manufacture, production, import, export, transport, sale, distribution, storage, and advertisement of electronic cigarettes. E-cigarettes are battery-powered devices that have a heating element and cartridge containing liquid. Inhalation of the liquid produces heat which further produces vapour. They are considered to be highly addictive as they consist of substances such as nicotine, vegetable glycerin, and propylene glycol, which are mostly used as flavouring agents. Hence, to prevent this addictiveness amongst the public, this legislation was passed in the light of public interest, precisely to preserve public health, considering the potential health risks associated with e-cigarettes. However, it is pertinent to note that the government had banned e-cigarettes altogether without having conclusive data on their long-term effect and letting combustible cigarettes flow into the market. Globally, there has been a common consensus that e-cigarettes are considered a suitable alternative to conventional cigarettes, which has further sparked a debate amongst the masses for infringing Articles 14, 19, and 21 of the Constitution of India.

Interplay Between The Economic Analysis And Constitutionality

Before the enforcement of the blanket ban, companies like Juul and Philip Morris, which produce and manufacture e-cigarettes, had plans of expanding their business in the country. With the ban in place, several market players immediately quit which left a vacuum in the market. With the demand for these “illegal” products only surging, the gap in supply for these “illegal” products was effectively filled out by products that were imported at cheap rates from several nations. There is always a system by which the market survives, as there has been with every other total ban or prohibition in India, whether it be on alcohol in Gujarat and Bihar, single-use plastics, or pornography. Reports have also shown that many of these products were from China and were being sold at effectively lower rates and costs, which made the availability of these products only prevalent in the market, only showing how ineffective the ban has been.

With these products gaining further ground in the black-market industry, neither would it make sense for a seller to bother about the quality of the product or the end consumer, even if it is a minor. With potentially dangerous and substandard goods being sold to consumers, the objective of the Act, i.e., to protect public health, is questioned. According to official data, there have been over 460 different e-cigarette manufacturers that come in more than 7500 flavour variations despite the ban. This blanket ban has only remained on paper. According to Euromonitor International, a market research firm, the market value for e-cigarettes in India is estimated to be $15.6 million and was projected to expand at an annual 60% rate until 2022, showing the prospect that the industry had in India.

India is home to about 12% of all the tobacco users in the world, making it only second to China in terms of the largest number of tobacco users and it is to be noted that at least 12 lakh people in India suffer and die due to tobacco-related diseases. Further, as per the Ministry of Health and Family Welfare, the overall and total economic expenses and losses for people aged between 35 – 69 in 2011, that have been associated with smoking diseases, has amounted to Rs. 1, 04, 500 crores, that is to say about $22.4 billion. This problem would only be aggravated by the blanket ban on e-cigarettes as people have been deprived of a safer alternative, resulting in the common man having to spend on unwanted treatments and medicaitontions. With there being sufficient evidence stating that e-cigarettes are not as harmful as traditional cigarettes, people have been deprived of their choice of a safer alternative. The trade-off that the government has hinted at achieving has resulted in not just causing a setback to people’s choices, but also cutting down on a key source of income and revenue for the government.

An example can be drawn from the experiences of the United Kingdom. Rather than imposing a blanket ban on these products like the United States of America and India, the UK has taken several measures to regulate these products. One effective measure adopted by the government was to cut down and limit the amount of nicotine to 20mg/ml and those that exceed the said limit will have to effectively go through the licensing process of the Medicines and Healthcare Products Regulatory Agency. A limit and control over the amount of nicotine also curbs addictiveness. In 2021 itself, sales reached a whopping £1.3 billion with gross value added of £401 million. Additionally, between 2017-2021, there has been a 23.4% growth increase.  

And with every thriving market, there comes employment. Apart from having a huge turnover, the said market has also benefited in many ways to the employee compensation, which forms an integral part of a country’s economy. This is proved by the report that has been generated by the Centre of Economics and Business Research (referred to as “CEBR”) which states that an additional 11.6 jobs are provided in the economy for every 10 employment that are directly created by the UK vaping industry. Additionally, the report also states that for every £10 that is paid by the vaping industry in employee compensation, another £11.1 is generated in the overall economy.

As mentioned earlier, India’s expenditure on treating tobacco-related products is very high. A recent study by WHO shows that India loses about 1% of its entire GDP to diseases and early deaths due to the usage of tobacco. No country can afford such heavy expenditure on the treatment of tobacco-related diseases as it is draining both the economy and the public health system. With e-cigarettes being recognized as cessation devices, globally, this harm can be undone, by improving health care saving. According to the findings of the CEBR report, in the UK, if 50% of smokers switched to vaping, about £698 million could be saved. With India being home to the second most consumer of tobacco-related products, a prudent switch to e-cigarettes could definitely have a ripple effect on the economy. Alongside ensuring that, people have access to a suitable alternative, it also guarantees business, employment, and livelihood of several employees in the said industry, protecting their fundamental rights guaranteed under both Article 19 (1) (g) and Article 21 of the Constitution, respectively. 

In addition to having an already existing economic setback, as elucidated above, the said legislation runs ultra vires to the Constitution. The artificial subclassification created by the legislation between combustible/e-cigarettes and traditional cigarettes has no nexus with the objective that is sought to be achieved. The prohibition directly drives the user to the other subclass, i.e., traditional cigarettes, which turn out to be more harmful than the combustible ones, which ultimately frustrates its objective of preserving and protecting public health. Thus, falling foul of Article 14 of the Constitution.

Furthermore, every citizen has been guaranteed under Article 19 the fundamental right to carry out any occupation, trade, or business, it is however, subjected to reasonable restrictions under Article 19 (6) of the Constitution of India. In the case of Om Kumar v. Union of India, the Supreme Court held that the restriction imposed must be the least restrictive of choices. There needs to be a proper balance between achieving the objectives of the legislation and the limitations on constitutional rights. However, the Legislature, while ignoring the lesser drastic alternatives, i.e., ignoring the option of regulation in itself, leads to a conclusion that the action is disproportionate. Thus, the act does not pass the test of proportionality under Article 19(1)(g).

Lastly, the legislation infringes the fundamental right to choose that is guaranteed under Article 21, as recognized in the case of K.S. Puttaswamy v. Union of India. Globally, e-cigarettes have been recognized as one of the smoking cessation tools. The Act will restrict a person’s ability to choose e-cigarettes as a viable alternative to quitting smoking. Additionally, the legislation fails to pass the three-fold test laid down in K. S.  Puttaswamy’s judgment. This test demarcates that every state action that intrudes into individual privacy and personal choices would be subjected to three standards. Firstly, legality (existence of the law). Secondly, need (legitimate state aim), and Thirdly, Proportionality (rational nexus between object and the means adopted to achieve it). The legislation does not hold up with the third requirement, which has already been elucidated in the above paragraphs.

Conclusion

The legislation aimed to protect public health due to concerns over the potential health risks. However, the ban on e-cigarettes without conclusive long-term data and the continued availability of combustible cigarettes have sparked the debate about individual choice and fundamental freedoms. A complete ban on e-cigarettes would prevent the economy from reaping the lucrative benefits that the market brings along with it, especially when India’s economy is reaching newer heights. Following a top-down intervention approach to induce behavioural changes in society seems to suffer from a huge setback and there needs to be an effective reconsideration of the said legislation. Rather than imposing a blanket ban on the said product, the government could follow a similar approach that it has done with other tobacco products – regulating the product and market. The regulatory strategy may involve imposing the proper taxes, issuing public use directives, disseminating product information, enforcing a minimum age for purchasing, and imposing specific product limits regarding nicotine concentration and taste options in e-cigarette products. A few regulatory measures that had been adopted by the UK and which evidently worked their way include restrictions on advertising and promotion, age, and flavourings that are used in the product. Therefore, the ban on e-cigarettes from a myopic view needs to be revisited.

Keshav Kulshrestha and Rahul Jacob are 2nd year law students at the Institute of Law, Nirma University, Ahmedabad