The advisory of the ministry of health and family welfare, government of India, to all state governments to ban the manufacturing, distribution, trading, importation and advertisement of electronic nicotine delivery systems has arbitrariness and ‘discrimination’ written all over it. Or does it? This author doesn’t smoke, and actively discourages others from smoking. But can the government, indeed, legitimise an all-out ban on e-cigarettes without a general prohibition on nicotine or cigarettes per se?
First, the ban is not limited to just e-cigarettes, but covers all electronic nicotine delivery systems. The advisory recollects the World Health Organisation report on this subject, other countries having banned e-cigarettes, as well as earlier circulars to this effect issued by a few state governments. The logic, it appears, is that e-cigarettes (as opposed to nicotine gums of 3mg/4mg) are not authorised as a nicotine replacement therapy under the Drugs and Cosmetics Act. This law could be read broadly to permit a ban on e-cigarettes sold as a ‘drug’, i.e. “…a substance used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder…”. However, where an e-cigarette or any other electronic nicotine delivery mechanism is not sold as a ‘drug’, but, say, for recreational use, the ministry does not derive any power under the Drugs and Cosmetics Act to ban the manufacture or marketing of the same.
If nicotine per se is considered harmful, the government could go with an all-out ban of all nicotine-containing products through other laws or means. The prohibition would have to be justified as a reasonable restriction on the fundamental right to carry on any business/trade/professional in tobacco and tobacco-related products. One must be mindful that the Supreme Court has previously declared liquor-related businesses as not being protected by this fundamental right, being res extra commercium, i.e. outside commerce. Nicotine-related businesses may suffer the same fate.
The Constitutional prohibition to not act arbitrarily or to discriminate, nevertheless, applies in all circumstances. Isolating manufacturers, importers or traders of e-cigarettes containing nicotine by citing the adverse effects of tobacco is irrational. The advisory brackets e-cigarettes of all kinds into a different category because there are “possibilities” that youth, children and adolescents are more likely to initiate nicotine use through e-cigarettes and are likely to switch to cigarettes, subsequently. Given the body of publicly available evidence on the subject, both for and against, one would suppose that the government may justify this correlation.
But the problem is the extent of restriction. If the object is protecting vulnerable groups such as youth, removing this choice for adults—which is what a total ban would imply—who are otherwise being permitted to smoke nicotine and tobacco under current laws, seems completely irrational. Point of sale restrictions such as prohibiting sale to minors, mandating identity proofs during purchase and similar restrictions are more narrowly tailored to the object, without limiting the personal choice and freedom of adults in the process.
Moreover, whatever be the supporting evidence, to contend that youth are more prone to nicotine use through electronic nicotine delivery systems than without these options is a figment of imagination. Reducing tobacco or nicotine consumption requires better educational strategies and a real-world cultural transformation. This is if, of course, the government is truly serious in curbing nicotine use. The narrow focus shown by the central government advisory is a half-measure that betrays the purported intention.
By- Adarsh Ramanujan. An independent advocate with offices in Delhi and Chennai.