ELECTRONIC CIGARETTES

[Mr. M. GOVINDARAJAN]

Electronic Cigarette

Wikipedia defines ‘electronic cigarette’ as  a handheld battery-powered vaporizer that simulates smoking and provides some of the behavioral aspects of smoking, including the hand-to-mouth action of smoking, but without burning tobacco. E-cigarettes are the most common form of Electronic Nicotine Delivery Systems (ENDS). These are basically devices that do not burn or use tobacco leaves. Using an e-cigarette is known as ‘vaping’ and the user is referred to as a ‘vaper’.  Since their introduction to the market in 2003, global usage of e-cigarettes has risen exponentially.  By 2013, there were several million users globally. Awareness and use of e-cigarettes greatly increased over the few years leading up to 2014, particularly among young people and women in some parts of the world.  Greater than 10 million people vape daily, as of 2018.  Everyday use is common among e-cigarette users.

E-cigarettes in India

E-cigarettes worth $1,91,781 were imported in India between 2016-16 and 2018-19.  E-cigarettes were promoted as a way to get people out of their smoking habits but reports have shown that many people are not using it as weaning mechanism but are rather addicted to it.  The Government has decided to ban the sale, storage and manufacture of e-cigarettes on the basis of following recommendations of a Group of Ministers, headed by the Finance Minister.   The decision to ban e-cigarettes is aimed at protecting the youth, the section that is most vulnerable to the health hazards of e-cigarettes.

Obligation to ban e-cigarette

India is a signatory to the World Trade Organization Framework Convention on Tobacco Control adopted in Geneva on 21.05.2003 which came into effect from 27.02.2005. The Conference of parties took a decision on 18.10.2004 to invite the parties to convention to consider prohibiting or regulating electronic cigarettes or Electronic Nicotine Delivery Systems and the Electronic Non-Nicotine Delivery System, including tobacco products, medicinal products, consumer products or other categories, taking into account a high level of protection for human health.

Since these devices are injurious to health and proliferation of these products have negative impact on public health it is expedient to prohibit the production, manufacture, import, export, transfer, sale, distribution, storage and advertisement of electronic cigarettes as enjoined by article 47 of the Constitution of India.   Article 51 of the Constitution of India requires the State to endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another.

Act

The President of India promulgated an ordinance in this regard, since the parliament was not in session, in this regard on 18.09.2019.  Later it became an Act, which is called ‘The Prohibition of Electronic Cigarettes (Production, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019 by getting the assent of the President of India on 05.12.2019.  The provisions of the Act shall be deemed to have come into force on 18.09.2019.

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force prohibiting production, manufacture, import, export, transport, sale, distribution, storage and advertisement of electronic cigarette.

Definition of electronic cigarette

Section 3(d) of the Act defines the expression ‘electronic cigarette’ as an electronic device that heats a substance, with or without nicotine and flavors, to create an aerosol for inhalation and includes all forms of Electronic Nicotine Delivery Systems, Heat Not Burn Products, e-Hookah and the like devices, by whatever name called and whatever shape, size  or form it may have not but it does not include any product licensed under the Drugs and Cosmetics Act, 1940.

The explanation to this section defines the term ‘substance’ as including any natural or artificial substance or other matter whether it is in a solid state or liquid form or in the form of gas or vapor.   

Prohibition

The Act prohibits the production, manufactures, import, export, transport, sale distribution, advertisement of electronic cigarettes.  It also prohibits storage of electronic cigarettes.

Section 4 of the Act provides that on and from 18.09.2019 (the commencement date of the Act) no person shall, directly or indirectly-

• Produce or manufacture or import or export or transport or sell or distribute electronic cigarettes, whether as a complete product or any part thereof; and
• Advertise electronic cigarettes or take part in any advertisement that directly or indirectly promotes the use of electronic cigarettes.

The advertisement may be any audio or visual publicity, representation or pronouncement made by means of any light, sound, smoke, gas, print, electronic media, internet or website or social media and includes through any notice, circular, label, wrapper, invoice or other document or device.

Section 7 provides that whoever contravenes the provisions of section 4 shall be punishable with imprisonment for a term which may extend to 1 year or with fine which may extend to ₹ 1 lakhs or with both.  For the second or subsequent offence the contravener shall be punishable with imprisonment for a term which may extend to 3 years and with fine which may extend to ₹ 5 lakhs.   Section 13 provides that an offence under section 4 shall be cognizable.  No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by an authorized officer under this Act.  An authorized officer for the purpose of this Act is-

• any police officer not below the rank of sub-inspector; or
• any other officer, not below the rank of sub-inspector, authorized by the Central Government or the State Government by notification.

Section 5 of the Act prohibits storage of electronic cigarettes.  On and from 18.09.2019, i.e., the date of enforcement of the provisions of the Act, no person, being the owner or occupier or having the control or use of any place shall, knowingly permit it to be used for storage of any stock of electronic cigarettes. However, the owner or occupier of the place with respect to the existing stock of electronic cigarettes shall, suo motu, prepare a list of such stock of electronic cigarettes in his possession and without unnecessary delay submit the stock as specified in the list to the nearest office of the authorized officer.  The proper officer with all convenient dispatch, take such measures as may be necessary for the disposal according to the law for the time being in force.

Section 8 provides that any person committing an offence under section 5 shall be punishable with imprisonment for a term which may extend to 6 months o with fine which may extend to ₹ 50,000/-

Offences by companies

Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Such person shall not be liable for punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

Where an offence has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Trial of offences

Any person committing an offence under section 4 or 5 shall be liable to be tried for such offence in any place to which he is liable to be tried under any law for the time being in force.  All offences under this Act shall be tried by the Court of Judicial Magistrate of the First class in accordance with the procedure provided for trials in the Code of Criminal Procedure, 1973.

Search and seizure

Section 6 provides that an authorized officer, if he has reason to believe that any provision of this Act has been, or is being contravened, may enter and search any place where-

• any trade or commerce in electronic cigarettes is carried on or electronic cigarettes are produced, supplied, distributed, stored or transported; or
• any advertisement of the electronic cigarettes has been or is being made.

After completion of search the authorized officer shall seize any record or property found as a result of the search in the said place, which are intended to be used, or reasonably suspected to have been used, in connection with any matter and if he thinks proper, take into custody and produce, along with the record or property so seized before the Court of Judicial Magistrate of the I class, any such person whom he has reason to believe to have committed any offence punishable under this Act.

Where it is not practicable to seize the record or property, the officer authorized may make an order in writing to attach such property, stocks or records maintained by the producer, manufacturer, importer, exporter, transporter, seller, distributor, advertiser or stockiest about which a complaint has been made or credible information has been received or a reasonable suspicion exists of their having been connected with any offence in contravention of the provisions of this Act and such order shall be binding on the person connected with the said offence.

All searches, seizures and attachment shall be made in accordance with the provisions of Code of Criminal Procedure, 1974.

After completion of the proceedings before the Court and if it is proved that the stock seized by the authorized officer are stocks of electronic cigarettes, such stocks shall be disposed of in accordance with the provisions contained in Chapter XXXIV of the Code of Criminal Procedure, 1974..