By: Dr. Satyavan Saurabh
Tobacco control in India is facing a new challenge. Nicotine pouches, which contain no tobacco leaf but do contain nicotine, are increasingly appearing in the market. These small and easy-to-use pouches are available in various flavors and are sold in stores as well as online. One study found such nicotine pouches in seven out of ten cities across the country. They also contained high levels of nicotine. This clearly indicates that this is not just a future problem, but a growing presence in the Indian market.
The biggest concern is that, because they don’t contain tobacco, the proper place for these products is unclear under existing laws. The primary tobacco control law in India is the Cigarettes and Other Tobacco Products Act, 2003, or COTPA. This law primarily applies to products containing tobacco. Therefore, it’s not easy to directly place tobacco-free nicotine pouches under COTPA. This legal loophole could open the door for companies and sellers.
COTPA regulates tobacco products, including advertising, sale to minors, packaging, and health warnings. However, if a product contains only nicotine instead of tobacco, the question arises as to how these same regulations should be applied. The law cannot be implemented based solely on its spirit. The administration cannot simply apply a new product to an old law on the assumption that its health effects are similar. This requires a clear legal basis.
Some may argue for regulating nicotine pouches under the Prohibition of Electronic Cigarettes Act, 2019. But this approach is not easy. E-cigarettes are devices that heat a substance to create an aerosol. Nicotine pouches neither burn nor create an aerosol. Considering them e-cigarettes simply because they contain nicotine may be a legally weak argument. Therefore, the government needs to establish clear legal provisions regarding this matter.
The Food Safety Act prohibits the use of tobacco and nicotine in food. However, not everything that is placed in the mouth is legally considered edible. Nicotine pouches are used in the mouth, but that does not automatically make them edible. Therefore, controlling the entire market for tobacco products using the Food Safety Act alone will not be easy. Clarity and coordination between different laws are essential.
Nicotine is also used in some medicinal products. For example, products like nicotine gum and patches are used to aid smoking cessation and are subject to medicinal regulations. Therefore, the government should clarify whether a product is for medicinal or recreational use based on the nature of the nicotine pouches and their claims. It would be inappropriate to consider every nicotine product a medicinal product, nor would it be appropriate to exclude every product from the scope of medicinal products.
Recently, a case involving the sale of nicotine pouches at Mumbai airport’s duty-free shops also surfaced. This highlights the potential confusion between the government and businesses regarding the legal status of these products. Simply taking action in such cases is not enough. The government must also clarify the law under which the action is being taken and its legal limits.
The government should not hastily issue an order in this matter that may later fail to stand in court. First, it should clarify under what circumstances nicotine-containing oral products will be considered drugs and under what circumstances they will not. This should be based on both scientific evidence and existing law. Furthermore, stricter restrictions are needed on the import of nicotine pouches. Better coordination should be established between Customs, the Directorate General of Foreign Trade, and drug regulators to effectively crack down on shipments arriving without proper authorization.
A common mechanism should also be established between the Ministry of Health, the Drug Regulator, the Food Safety Authority, Customs, and relevant state departments. Currently, there is ambiguity regarding responsibility between various departments, which businesses can exploit. It’s natural to question how effective regulation can be achieved if the legal status of a product is unclear.
Special attention must also be paid to online sales. Today, new products are no longer limited to the physical market. Through e-commerce and quick-commerce, they can reach consumers within hours. Therefore, before selling on online platforms, measures such as product legal status, seller information, and age verification must be implemented. Effective mechanisms should also be in place to remove products from online sale without authorization or clear legal status.
Protecting young people from these products should be a top priority. This requires measures such as clear health warnings, minimum age limits, child-proof packaging, and controls on flavors and advertising that appeal to young people. However, all these measures must be based on existing law. The government cannot simply enact new legislation through executive order, which falls within the jurisdiction of Parliament.
Immediate government action is necessary, but it is not a permanent solution. A permanent solution must be found in Parliament. COTPA could be amended, or a new comprehensive law could be enacted for nicotine products. Such a law could create separate categories for different nicotine products, such as combustible tobacco, smokeless tobacco, e-cigarettes, oral nicotine pouches, and medical nicotine products. This would allow the law to be based not only on whether a product contains tobacco leaf, but also on how it delivers nicotine to the body and its intended use.
It’s also important not to view all nicotine products in the same light. It would be unfair to categorize medicinal nicotine gum and recreational nicotine pouches in the same category. The law should differentiate the product based on its risks and intended use. Commercial companies should not be given the freedom to exempt a new product from existing tobacco laws simply by removing the tobacco leaf.
Most importantly, tobacco-free does not mean risk-free. Nicotine is addictive. Its effects cannot be underestimated, especially for young people and first-time users. Attractive flavors, packaging, and online promotions can attract young people to these products. Therefore, it is essential to combine public health concerns with legal clarity.
India needs neither undue panic nor blindness in this matter. The urgent need is for the government to establish effective controls on imports, licensing, classification, and online sales under existing laws. Parliament should also enact legislation that applies to future new nicotine products.
A flaw in the law should not mean that the market should be left open. However, it is also true that a government notification cannot replace a law enacted by Parliament. What is needed today is legislation that keeps pace with changing technology and the evolving market. The form of nicotine may change, its market may shift, but the risk of addiction remains. Therefore, it is essential that while awaiting legislation, the government utilizes its existing legal powers appropriately, and that Parliament enact clear, comprehensive, and effective nicotine control legislation for the future.
(Dr. Satyawan Saurabh, PhD (Political Science), is a poet and social thinker.)
