The Health Ministry is proposing to ban Electronic nicotine delivery systems (ENDS) in the country via a draft ordinance “Prohibition of E-cigarettes Ordinance 2019” as reported in the media. The said ordinance is being examined by a Group of Ministers (GoM) comprising of the health ministry as well as finance, commerce, agriculture, chemicals and petrochemicals and the food processing ministries.
The government intends to include ENDS under the D&C Act and had issued advisories prohibiting the manufacturing, distribution, trade, import and advertisement of ENDS and like devices. However, this position of the Government was challenged in the Delhi High Court, which issued a stay on these advisories based on the contention that ENDS do not come under the definition of “drug” as cited in the Drugs and Cosmetics Act and therefore they cannot be banned under the Drugs and Cosmetics Act.
If the government desires to regulate ENDS, there is a law already existing, The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and. Commerce, Production, Supply and Distribution) Act, 2003 (COTPA), which regulates cigarettes and other tobacco products in the country. COTPA prohibits advertising of tobacco products, sale of tobacco products to minors and smoking in public places etc. and thus addresses all concerns of the government under its various provisions.
The government had withdrawn COTPA (Amendment) Bill 2015 with the intention to introduce a new Bill, which would also regulate ENDS.
Therefore, ENDS too can be included under Section 3(p) of COTPA, which defines “tobacco products”.
The President of India is empowered by the Constitution to promulgate an Ordinance during recess of Parliament (Article 123), but only if at any time, he is satisfied that the circumstances are extenuating enough to take the necessary immediate action. Also, the President can only promulgate an ordinance on matters in List I (Union list) and List III (Concurrent list) of the Seventh Schedule of the Constitution. Public Health comes under List II (State list).
An ordinance remains in force for up to six weeks when the Parliament reconvenes.
So, even if the ordinance is passed, in all probability, it may be challenged as there is no expediency or urgency necessitating such an action.
Enforcing a blanket ban on ENDS, instead of regulating them, while cigarettes and other tobacco products continue to be sold in the country under the ambit of COTPA, would violate Article 14 of India, which guarantees the fundamental right to equality and also Article 19(1)(g) of the Constitution, which allows the right to freedom to practise any profession, or to carry on any occupation, trade or business.
The Delhi High Court had stayed the government advisory to ban ENDS under the Drugs and Cosmetics Act. The matter is still under the consideration of the court. It’s only right that the government wait for the final adjudication in the matter before proceeding further.