India faces first legal battle over country's ban on e-cigarettes

Just over a week after India's government enacted a ban on the sale, import and manufacture of electronic cigarettes, it is facing its first legal challenges.

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Two separate challenges were filed to the high court in Kolkata - by e-cigarette importer Plume Vapour and another company named Woke Vapors - according to court listing records publicly available online.

“This (ban) raises several important questions of constitutional law and is mindless, arbitrary and excessive,'' said Abhishek Manu Singhvi, one of India's most prominent lawyers, who is representing Plume Vapour.

A senior health ministry official in New Delhi said the government had been notified of the cases, which were heard by the court on Thursday and will be picked up on Monday.

“We are confident of defending our decision,'' the official added, and further details about the challenges were not immediately available.

More than 900,000 people die each year due to tobacco-related illnesses in India, home to about 1.3 billion people.

The vaping crisis in the United States keeps getting worse, and on Thursday, the Centers for Disease Control and Prevention announced that the death toll from vaping-related breathing illnesses has risen to 13, while there are now 805 confirmed and probable cases.

When Prime Minister Narendra Modi’s government announced the ban of e-cigarettes on September 18, it also approved an emergency order - drawn up by the health ministry - that could see first-time offenders face a jail term of up to one year and a fine of 100,000 rupees ($1,411). The possession of e-cigarettes or similar devices will also be an offense, with a punishment of up to six months in prison and a fine of up to 50,000 rupees ($705).

India’s Union Finance Minister Nirmala Sitharaman made the decision based on recommendations from the Group of Ministers, which she leads.

"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 [a] weaning mechanism but are rather addicted to it," Sitharaman said when the ban was carried out.

The decision was a follow up of a 2018 advisory that Indian Prime Minister Narendra Modi’s government sent to all state governments asking them to consider banning e-cigarettes.

In May of this year, a government body first published a report recommending a ban on vaping, which stated there was insufficient research into the health impacts of smoking e-cigarettes to guarantee it was safe.

The white paper by the Indian Council of Medical Research (ICMR) said e-cigarettes contain not just a highly addictive nicotine solution, but also other potentially dangerous and breathable substances such as flavouring agents and vapourisers. The report cited studies by the American Food and Drug Administration (FDA) studies into vaping, and the deaths of at least 13 people in the US reportedly due to mysterious e-cigarette-related illnesses has led to calls for bans around the world.

"These novel products come with attractive appearances and multiple flavors and their use has increased exponentially and has acquired epidemic proportions in developed countries, especially among youth and children"

- Indian government statement accompanying e-cigarette ban

This move could put off the expansion plans of companies such as Juul Labs Inc and Philip Morris International in India, which has 106 million adult smokers - second only to China in the world – making it a lucrative potential market for companies selling vaping products.

Juul had plans to launch its e-cigarette in India and has hired several senior executives in recent months. Philip Morris had plans to launch its heat-not-burn tobacco device in India.

The government said the decision to ban e-cigarettes is aimed at protecting the country’s young people, who are most vulnerable to its health hazards.

"These novel products come with attractive appearances and multiple flavors and their use has increased exponentially and has acquired epidemic proportions in developed countries, especially among youth and children," the government said in a statement accompanying the ban.

The government also argued that vaping can lead to nicotine addiction and push users towards consuming tobacco.

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This is something that pro-vaping groups dispute - they argue that vaping is less harmful than smoking tobacco and that the ban will deprive millions of smokers of a safer solution to cut back on smoking.