in India's largest cigarette company, to advise banning a product without even considering the views prevailing in other jurisdictions and the reasons why they have regulated and allowed sale of ENDS?...
The recent Advisory (dated 28.08.2018) issued by the Ministry of Health and Family Welfare to ban Electronic Nicotine Delivery System (ENDS), including e-cigarettes, in a market which is flooded with conventional tobacco cigarettes and other tobacco and nicotine-based products raises many questions on public health.
Firstly, has the government turned a blind eye towards consumption of tobacco? Nothing has been done to ban conventional cigarettes outright, whereas various state governments have already banned ENDS. Does this mean that the government considers cigarettes a healthier, more acceptable option?
Secondly, has the government fairly assessed the evidence of comparative harm of ENDS vis-à-vis conventional cigarettes as well as the consequences of banning ENDS while still permitting conventional cigarettes?
ENDS works by heating a solution of water, flavouring, propylene glycol, vegetable glycerine, and typically, nicotineto create a vapour that the user inhales. The device tends to consist of a mouthpiece, a battery-powered heating element, a cartridge or refillable tank containing the liquid solution, and an atomizer that vaporizes the solution when heated.
ENDS is becoming an increasingly popular choice amongst smokers. As seen in the classic case of UBER and other ride-sharing apps, consumer choice has always driven the market. Such disruptive products remain immensely popular even though they continue to face opposition from the traditional lobby and regulatory hurdles from the government.
ENDS does not contain tar and carbon monoxide of conventional cigarettes; these are the most harmful byproducts produced when smoking conventional cigarettes.
This is a clear advantage of ENDS over conventional cigarettes. That said, some potentially harmful components are present in both products.
Globally, ENDS is considered significantly less harmful than conventional cigarettes. Though nicotine delivered through ENDS is addictive, smoking produces an estimated 7,000 chemicals, including at least 70 chemicals that cause cancer. However, health effects of long-term use of ENDS are unknown.
Various studies from credible institutes – the Royal College of Physicians (RCP), London; Public Health England;
National Academies of Sciences; Engineering Medicine (US); American Cancer Society; etc. – have come to the same conclusion on the relative safety of ENDS. A 3.5-year study published in Nature, a leading scientific journal, found ENDS users who never smoked showed no signs of damage that smokers exhibit.
Another report by The Royal College of Physicians titled 'Nicotine without smoke: tobacco harm reduction' concluded that e-cigarettes are likely to be beneficial to public health.
"Smokers can therefore be reassured and encouraged to use them, and the public can be reassured that e-cigarettes are much safer than smoking… Whilst the possibility of some harm from long-term e-cigarette use cannot be dismissed due to inhalation of the ingredients, it is likely to be very small, and substantially smaller than that arising from tobacco smoking."
This raises further questions: Is the stance of the government prejudiced when they have put a ban on ENDS without considering all the credible evidence favouring ENDS?
Is it fair for the Government, as a stakeholder in India's largest cigarette company, to advise banning a product without even considering the views prevailing in other jurisdictions and the reasons why they have regulated and allowed sale of ENDS?
Our government's track record of the manner of dealing with unfamiliar issues has always been marked with a disregard for scientific findings and empirical data. Putting an outright ban coupled with perpetuating a negative rhetoric without even exploring possibilities of regulation has become the norm.
Regulating ENDS would require testing, standardization, and licensing of ENDS, especially in the light of the constant innovations in the ENDS products, the various e-liquids, and the added flavouring.
The Government's Advisory is myopic when it labels ENDS as a possible gateway for youth to cigarette smoking. An average cost of purchasing an ENDS device is phenomenally higher than buying a conventional cigarette. An under 18-year-old is more likely to use a cigarette that can be smoked and disposed of conveniently rather than purchasing a non-disposable ENDS device. Practically speaking, a nonsmoker is most likely to start off with cigarette smoking first, especially when conventional cigarettes are readily available just around the corner. A study by Public HealthEngland also shows that "vaping is a fraction of the risk of smoking, at least 95% less harmful, and of negligible risk to bystanders."
Governments and health organizations have succeeded more in encouraging the public through awareness campaigns and advocacy rather than by simply banning.
Why has the government issued another Circular (dated 27.11.2018, issued by the Anti-Smuggling Unit of the Central Board of Indirect Taxes & Customs) directing Customs and related Officials to ensure implementation of the MoHFW Advisory even when the Hon'ble Delhi High Court (vide Order dated 14.11.2018) has observed that "the said Advisory is not binding and it would be open to the respective States and Union Territories to take an 'informed decision' in this regard"? This observation clarified matters pertaining to enforceability of the Advisory.
Depriving the population from accessing ENDS while allowing sale of conventional cigarettes, gutkha, and other tobacco products is discriminatory and such a state action stifles consumer choice.
The fear created by the government and the tobacco lobby needs to be addressed with a holistic debate on proportionate risks with an evidence-based assessment of banning tobacco and ENDS. Regulation should be directly proportionate to the health impact caused.
If the government wants to address concerns, a way forward is to effectively regulate ENDS. It could be done by treating e-cigarettes as an effective nicotine replacement therapy (NRT) and by standardizing ENDS devices and e-liquids.
Also, like in the UK, the government could maintain a Planned Annual Evidence Review of e-cigarettes and support a long-term research program under its supervision.
The government could also report each year on the state of research in its National Tobacco Control Programme and establish an online hub for making the detailed evidence readily available to the public and health professionals.
If the government does not wake up to the reality today, it would not only lose out on earning revenue through the taxation of ENDS but also fail in its duty of not acting in the best interest of public health. By banning ENDS and allowing production and sale of tobacco products, the government would be missing out on an opportunity to introduce a potentially less-harmful alternative to conventional cigarettes.
If the government is truly committed to good science and public health, it should carry out independent tests and research to ascertain the toxicity of ENDS and consider making available to the public a potentially far lesshazardous alternative to smoking.
Needless to say that government's effective advocacy and regulatory strategy can really help people to naturally reduce the consumption of both tobacco and/or ENDS.
Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.
Managing Partner - Anupam Sanghi And Associates ( Erstwhile-SAS Law Associates )
Anupam Sanghi has nearly two decades of experience as a commercial and competition lawyer. Her domain expertise lies in Telecom, Media and Technology. As an advisor to TRAI (Telecom regulatory Authority of India) and CCI (Competition Commission of India) since its inception, she has helped businesses in navigating policy grey areas and anticipating strategic solutions for market entrants. She has assisted various E-commerce companies and disruptive technology business models with transactional advisory, FDI / policy issues and competition law compliance. She offers a holistic approach to simplify the complex legal and regulatory framework for clients and helping them traverse the ecosystem around corporate governance, policies and the ever-changing regulatory environment to render sector-specific guidance. Anupam also conducts trainings for the management to sensitize them on the impact of business conduct in the market, demystifies the several contours of public policy like Content, Media, Telecom, ICT, Competition, Data Privacy and Data Security, Intellectual Property, Commerce and Payments. She also takes master classes for young entrepreneurs / industry associations / general counsels to solve the problems of 21st century that cannot be solved with current laws, government and regulatory authority’s actions / inactions that impacts the industry. Passionate about creating new precedents, raises challenging questions to co-exist in a revolution by technology, she extensively researches and writes on these subjects and has been a contributing writer for Lexis Nexis
Advocate - High Court of Judicature at Allahabad
Experienced lawyer with a demonstrated history of working in the law practice industry. Skilled in advisory and dispute resolution, especially in areas of Civil, Commercial and Technology laws.