Are nicotine pouches beyond the law

GS-II: Governance | Public Health | Regulatory Framework | Tobacco Control

Context

• ICMR Study: A new study by the ICMR–National Institute of Cancer Prevention and Research found that nicotine pouches are reaching Indian cities through online platforms, hookah shops and gig delivery services.
• WHO Warning: The study follows a May 2026 warning by WHO regarding the dangers posed by these products.
• Legal Ambiguity: It remains unsettled which Indian law, if any, regulates nicotine pouches.

What are Nicotine Pouches?

• Composition: Small, tobacco-free, tea-bag-like pouches containing nicotine, flavourings and plant-based fibres.
• Use: Placed between the lip and gum for up to an hour.
• Nicotine Absorption: Nicotine is absorbed directly into the bloodstream without smoke, vapour or spitting.

Does COTPA Cover Nicotine Pouches?

• COTPA, 2003: Regulates the marketing, advertising and sale of cigarettes and other tobacco products.
• Legal Gap: Its definition of tobacco products does not extend to all products containing nicotine.
• Position: Since nicotine pouches are not among the products listed under COTPA, they arguably fall outside its scope.

Are They Covered by the Drugs and Cosmetics Act?

• Nicotine: Nicotine is not listed as a drug in any schedule of the Drugs and Cosmetics Act, 1940.
• Therapeutic Products: Nicotine patches and gums have been approved as drugs for treating nicotine addiction.
• Schedule K: Gums and lozenges containing less than 2 mg nicotine are exempted from licensing and prescription requirements.
• Counter-Argument: Nicotine pouches do not make therapeutic claims or purport to treat addiction; they function as substitutes for cigarettes.
• Legal Position: Their status as drugs therefore remains arguable.

Why PECA Does Not Cover Them

• PECA, 2019: The Prohibition of Electronic Cigarettes Act bans the import and sale of vapes.
• Difference: Nicotine pouches:
  • Have no electronic device.
  • Produce neither smoke nor vapour.
• Therefore: They are not covered by PECA.

Can They be Treated as Food?

• Food Laws: The Prevention of Food Adulteration Act and Food Safety and Standards Act define food broadly as substances intended for human consumption.
• Judicial Interpretation: Rulings concerning supari and chewing tobacco have given the definition a wide scope.
• Possibility: It can therefore be argued that nicotine pouches may fall within the broad definition of food.

Import Regulation

• Relevant Laws:
  • Foreign Trade (Development and Regulation) Act, 1992
  • Customs Act, 1962
• DGFT: Administers import restrictions and publishes the ITC-HS classification of goods.
• Customs Act: Section 11 allows prohibition or restriction of goods on grounds including protection of human, animal or plant life.
• HS 2404 91 30: Covers tobacco-free single-use oral nicotine pouches.
• HS 2404 91 90: Covers other oral nicotine products not meant for therapeutic use.
• Import Status: Products under 2404 91 30 are classified as “restricted”.
• Implication: They require a specific licence or permission, unlike free imports, while they are not outright prohibited like e-cigarettes.

Nicotine Pouches in Duty-Free Shops

• Availability: Nicotine pouches are available at a few airport duty-free stores.
• Legal Status: Duty-free shops are licensed under Section 58 of the Customs Act and cannot be treated as entirely outside Indian law.
• Flemingo Case: In Flemingo Duty Free Shop Pvt. Ltd. v. Shri Kaushik Bhattacharya (2024), the Calcutta High Court held that a duty-free store did not “import” goods into India for purposes of the Customs Act.
• Limitation: This does not mean that no Indian law applies to duty-free shops.
• Import Issue: Given the restricted customs classification, it is unlikely that an import licence has been granted for nicotine pouches.

Legal Position

• Regulatory Grey Area: Nicotine pouches do not clearly fall under:
  • COTPA, 2003
  • Drugs and Cosmetics Act, 1940
  • PECA, 2019
• Possible Regulation: Their status may intersect with food, customs and foreign-trade laws.
• Public Health Concern: Increasing availability could allow demand to become established before effective regulation is introduced.

Way Forward

• Clear Regulation: The government should clearly determine the legal status of nicotine pouches.
• Customs Action: The Customs Act and Foreign Trade Act can be used to regulate or prohibit their import on health grounds.
• Timely Intervention: Early action can prevent nicotine pouches from becoming widely established and reduce the risk of smuggling and associated health damage.

Conclusion

Nicotine pouches currently occupy a complex legal and regulatory space in India. Their increasing availability, combined with uncertainty over the applicable law, creates a public-health and governance challenge.

The immediate requirement is regulatory clarity and timely action so that the experience with vapes is not repeated.

UPSC Mains Practice Question

Q. Nicotine pouches have emerged as a new regulatory challenge in India. Examine the legal ambiguities surrounding their regulation and suggest measures to address the associated public-health concerns. (250 words, 15 marks)