ENDS MEET AN END

‘Smoking is injurious to health and causes cancer’ a warning seen on every pack of cigarettes. As an alternate to the carcinogenic vice, Hon Lik, after his father passed away due to lung cancer[1] invented the e-cigarette a presumptively safer and cleaner way to inhale nicotine and as a tobacco cessation resource, this paved way to Electronic Nicotine Delivery Systems (ENDS). The cause may have been noble an alternative to smoking by weaning smokers and assisting them to eventually quit but market had other outline and introduced it as a safe alternate to youth and young adults.

ENDS/ENNDS heat a solution (e-liquid) to create an aerosol which frequently contains flavourants, usually dissolved into Propylene Glycol or/and Glycerin. ENDS have variants based on the production of toxicants and delivery of nicotine. Devices can be classified into first-generation or so-called cigalikes, second-generation tank systems and third-generation or personal vaporizers. Devices could be closed, and open systems based various factors such as degree of control that users have over the e-liquid, the voltage, resistance applied to heating the e-liquid, ventilation features and so on.

There are more than 460 different e-cigarette brands with varied configuration of nicotine delivery shows the speed at which it is expanding market presence and reaching the target audience mostly adolescents, youth and young adults through various marketing strategies. In order to have swift penetration ENDS brands conduct tradeshows or sponsor events to introduce to e-cigs or send out emails or post on social media to reach out to school and college students, their target market putting vapers at risk for addiction to ENDS /ENNDS and probably to other drugs.

The World Health Organisation (WHO) in response to the globalization of the tobacco epidemic framed its first international public health WHO Framework Convention on Tobacco Control (WHO FCTC) which was adopted on 21st May 2003 and came into effect from 27th February 2005. India ratified the WHO FCTC in 2004 and played a prominent role in FCTC negotiations to finalize its provisions and acted as the regional coordinator for the South- East Asian countries.

In response to the growing international illicit trade in tobacco products, posing a serious threat to public health, a new international treaty viz the Protocol to Eliminate Illicit Trade in Tobacco Products (Protocol)[2], the first Protocol, the WHO FCTC developed and adopted by Conference of Parties (COP) in the Fifth Session (2012).

On 18th October 2014, Sixth Session was held at Moscow wherein COP decided to invite parties to consider prohibiting or regulating Electronic Nicotine Delivery Systems and Electronic Non-Nicotine Delivery Systems (ENDS/ENNDS), including as tobacco products, medicinal products, consumer products, or other categories, as appropriate, taking into account a high level of protection for human health. The last session was held in Delhi from 7th to 12th November 2016 where a detailed report on ENDS was submitted by WHO FCTC.

As regards the statistics according to the World Health Organisation, the global market for ENDS/ENNDS in 2015 was estimated at almost US$ 10 billion. About 56% was accounted for by the United States of America and 12% by the United Kingdom. Another 21% of the market was divided between China, France, Germany, Italy and Poland (3–5% each). In addition, the market may change since the tobacco industry has launched alternative nicotine delivery systems that heat but do not burn tobacco, and is developing or has bought nicotine inhaler technology that does not require a heating mechanism[3]. Whereas, India had 266.8 Mn tobacco users and people exposed to secondhand smoke in 2018 in the $12 Bn cigarette market. In India, brands such as Juul, Alt Vapors etc are the popular e-cigarette makers which co-exist with non-branded e-cigarettes and devices. Euromonitor International estimates that India’s vapour-products market was valued at $15.6 Mn in 2017 and is seen growing nearly 60% annually in the next few years.

In May 2019, a  white paper was published by the Indian Council of Medical Research (ICMR)[4] indicating that ENDS or e-cigarettes and other like devices contains nicotine solution, are highly addictive containing harmful ingredients and a gateway for new tobacco addiction and recommended prevention of use of the impending epidemic leading to a public health disaster. It cites ENDS or e-cigarettes has adverse effects which include DNA damage, carcinogenesis, cellular, molecular and immunological toxicity, respiratory, cardiovascular and neurological disorders and adverse impact on foetal development, pregnancy, infant and child brain development as also is harmful to non / passive users. In addition, these devices may cause fire and explosion. In March, at least 12 states in India banned ENDS[5].

As e- cigarettes in any form of device are injurious to health and its proliferation would have negative impact on public and Nicotine, in any form is a highly addictive drug, on September 18, 2019, the Government of India promulgated the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage, and Advertisement) Ordinance, 2019 (‘the Ordinance’). As per the Ordinance,  electronic cigarettes (e-cigarettes) are electronic devices that heat a substance (natural or artificial) to create vapour for inhalation, which may contain nicotine and flavours, and include all forms of electronic nicotine delivery systems(ENDS), heat-not-burn products, e-hookahs, and other similar devices.

The Ordinance prohibits the manufacture, production, import, export, distribution, transport, sale, storage or advertisements of such alternative smoking devices a cognizable offence The Ordinance mandates that owner /occupier of the place with existing stock is required to declare and deposit the stock of e-cigarettes and cartridges at the nearest police station(level not less than a Sub-Inspector). Any person who contravenes these provisions will be punishable with imprisonment of up to one year, or a fine of up to one lakh rupees, or both. For any subsequent offence, the person will be punishable with imprisonment of up to three years, and a fine of up to five lakh rupees.

Although, from the manufacturer to seller all banned the ‘use’ ‘usage’ or ‘user’ are not dealt with in the Ordinance. Eventually, when there are no manufacturers (makers) there will be no user or its market (takers).  Can it be inferred that user presently having storage of stock can consume and the same is legal? On a reading of Section 5 (a) that only ‘owner’ or ‘occupier’ of the place will have to submit a stock list, and this is not a mandated for a user/consumer. Negative publicity is also a marketing strategy used by certain companies and trade may lure invite potential users through illicit means.

The Department of Health and Family Welfare intends to introduce the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage, and Advertisement) Bill, 2019 in the forthcoming session of Parliament. The Ordinance will be in force and effect as an Act of Parliament, for six weeks from the date when the next session of Parliament or the Bill is promulgated, or the Ordinance is withdrawn / expires[6].

With the advent of the Ordinance, ‘ENDS’ meet an abrupt END.

[1] https://www.dentalcare.com/en-us/professional-education/ce-courses/ce451/the-history-of-e-cigarettes

[2] On 2nd May 2018, the Indian Cabinet approved accession to the Protocol under WHO Framework Convention on tobacco control.

[3] https://www.who.int/fctc/cop/cop7/FCTC_COP_7_11_EN.pdf

[4] https://www.icmr.nic.in/sites/default/files/press_realease_files/Press_Release_2.pdf

[5] https://inc42.com/buzz/concerns-emerge-on-e-cigarette-ban-cait-calls-for-expert-committee

[6] Article 123 of the Constitution of India

Disclaimer: The views expressed in this article are the personal views of the author and the information provided does not constitute legal advice.