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India is amongst the countries looking to ban electronic cigarettes, despite the mounting evidence that these products are effective harm reduction and smoking cessation tools. In a policy study conducted by R Street Associate Fellow Maria Foltea, the legality of such bans was looked into and found to be violating World Trade Organization rules.

Besides violating international laws, e-cigarette bans may in some cases also be violating local laws.
“Currently, tobacco-heated products that contain tobacco are classified as tobacco products and therefore do not face discrimination issues,” said Foltea. “However, e-cigarettes, which do not contain tobacco, can be classified either as ‘recreational’ or ‘medical products and devices.’ This broader classification opens the door for their prohibition, because nicotine is a drug that also has medicinal uses. Such classification can subject products that contain nicotine to a different set of classifications in ways that appear arbitrary.”
“There is therefore good reason to believe that, as long as traditional cigarettes are freely traded, a ban on e-cigarettes will be found discriminatory under WTO rules. Accordingly, regulators must consider such issues of legality before enacting any such prohibitive laws.”Maria Foltea, Associate Fellow, R.Street Institute

Foltea pointed out that besides violating international laws, e-cigarette bans may in some cases also be violating local laws. In order for this to be avoided, she is suggesting that local policy makers take these following three steps when regulating the products.

  1. The policy makers should check that proposed regulations are consistent with pre-existing local legislation
  2. Before proposing regulations, product manufacturers and retailers should be consulted, and more importantly scientific data should be looked into in order to ensure that such regulations are in line with facts.
  3. WTO member governments should consult with the WTO secretariat before implementing regulations, and allow a time frame in which interested parties have the opportunity to share their opinions and knowledge.

Can vaping be banned when tobacco cigarettes are not?

Foltea pointed out that although vaping products are significantly safer than their combustible counterparts, the two distinctly different products are in direct competition on the market. “There is therefore good reason to believe that, as long as traditional cigarettes are freely traded, a ban on e-cigarettes will be found discriminatory under WTO rules. Accordingly, regulators must consider such issues of legality before enacting any such prohibitive laws.” she concluded.

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