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The Narendra Modi government has banned e-cigarettes and ads related to them. Enforcing the ban has been one of the government’s main goals in the second term and is yet another example of approaching a regulatory issue with a blanket ban.

The effectiveness of moratoriums on popular products is open to questioning, especially with multiple adverse consequences for public health. More importantly, it is indicative of a lack of state imagination and capacity in India.

The government may have been better served regulating electronic nicotine delivery systems (ENDS) – e-cigarettes and vaping devices included – to minimise public health risks rather than forcing users to be at the mercy of snake oils and spurious products in grey or black markets.

Although there is a consensus among medical professionals that ENDS avoid some of the more toxic by-products of conventional combustible cigarettes like tar and carbon monoxide, many still contain other components known to be harmful, such as formaldehyde and particulate matter. The World Health Organisation conducted a systematic review of existing studies and found that while there could be some cases where ENDS were found to be harmful, there is a need for an extensive research to ascertain the costs and benefits of ENDS (both in the short and long-term).

This lack of scientific evidence has motivated the Indian government to enforce a ban to minimise any potential damage. If the union and state governments (health is a state issue) were so concerned about the health of their citizens, they would have banned or, at the very least, targeted conventional cigarettes as well.

Also read: Why the clamour to ban e-cigarettes in India when cigarettes and beedis are allowed?

Do bans work?

The tendency to ban instead of regulating the use is partly a result of an inadequate state capacity because nuanced regulations generally require careful thought and effort. For example, it is easier to ban liquor stores near highways to address drunk driving than do the hard work of improving the enforcement of DUI penalties and ensuring compliance of traffic norms. Bans also appeal to governments because they enable them to claim political capital by appeasing the public with some kind of regulatory response to hot button issues.

The actual effectiveness of bans, however, remains questionable as it is one thing to declare a product illegal and an entirely different one to prevent people from finding ingenious ways of consuming it.

For example, the recent efforts by the government to ban online porn proved extremely ineffective because users can still access popular websites through proxies to bypass blocks. This lack of effectiveness of bans is only compounded by a host of unintended, and often adverse, consequences. For example, the recent porn ban affected legitimate file-sharing websites like Telegram and SoundCloud.

This preference for blanket bans is not limited to India. The UK is about to enforce a porn block too. And the ultimate example is, of course, the imposition of prohibition in the US, which gave the mafia a multi-billion-dollar source of annual revenue in the 1920s.

State as moral protector

There is also an element of moral philosophy behind the government’s propensity to ban anything it finds objectionable. The Indian state views its citizens as easily corruptible or suggestible. For example, alcohol prohibition enjoys constitutional protection as a directive principle and the Supreme Court has used the ‘powerful medium’ theory to censor films and internet because it believes that Indians will be easily swayed to risk their lives or commit crimes after accessing these media. Given this dim view of the agency of its citizens, the state takes on the role of a moral protector deciding what is best for the country.

However, state capacity in India is generally woeful, rendering such bans ineffective. Laws are drafted with little consultation among key stakeholders, and very often face little scrutiny in Parliament or courts. Even if the laws are properly designed, there are many gaps in the state’s ability to implement and enforce them.

To shift away from bans, the government will need to do a variety of things. First, it needs to view its citizens as people who have agency to make their own choices. Second, it has to improve state capacity with respect to the creation and implementation of regulations.

This will undoubtedly be a difficult task, but in an ideal world the creation of public policies should be guided by in-depth studies and analyses of the problems they seek to address and consultation with those who will face the maximum impact. These policies must also factor in the limitations and constraints that will be faced during implementation as well as anticipate, to the best extent possible, any unintended consequences.

Also read: Now, a study says vaping is safer than smoking tobacco-based cigarettes

Regulation is needed

Coming back to e-cigarettes and vaping, it is clear that some kind of regulatory response is needed to catch up with the new technology. While they may be less harmful than conventional cigarettes, it doesn’t mean they are completely harmless.

Of particular concern is the way ENDS have been marketed and distributed to the youth who constitute the most popular demographic for vaping.

On regulation, the government could have treated ENDS on par with cigarettes, and not pushed consumers towards the black market.

For instance, standardising the composition and manufacturing of ENDS would have helped mitigate some of the risks. Once standardised, ENDS, like cigarettes, could have been packaged with warnings so that users are better informed. Similarly, restrictions could have been placed on the ways in which ENDS are marketed and distributed.

Claims by ENDS manufacturers regarding their safety should be verified by independent studies with no conflicts of interest. Special attention should be paid to how they are promoted and distributed to minors.

The author is a public policy expert and research analyst, and has worked with the Takshashila Foundation on gene editing, free speech and mob violence. He has recently consulted with Daksh India. Views are personal.

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