The Delhi High Court has stayed the ban on import, manufacture, sale and distribution of Electronic Nicotine Delivery Systems(ENDS) like e-cigarettes, e-sheesha, vape, e-hookah with nicotine flavour etc.
The single bench of Justice Vibhu Bakhru ordered the stay in a batch of petitions filed by manufacturers and importers of ENDS. The petitions challenged a customs circular issued on November 27, which directed customs authorise to ensure that all import consignments of ENDS are referred to drug control authorities and ensure implementation of the Ministry of Health & Family Welfare advisory to states recommending ban on ENDS. They also challenged a communication dated February 22 from Director General of Health Services requesting the state drug authorities to ensure that ENDS are not sold, manufactured, distributed, traded, imported or advertised in their jurisdiction, except for the purpose and manner and to the extent as may be approved under the Drugs and Cosmetics Act 1940.
The petitioners contended that ENDS will not come within the definition of “drugs” as per Section 3(b) of the Drugs and Cosmetics Act. They also advanced that ENDS offer a healthier substitute to tobacco-based smoking habit, as such devices do not produce, which is a product of burning of cigarette paper.
Countering the petitioners’ argument, the Centre submitted that ENDS were advertised as a replacement therapy for tobacco addiction, and have therapeutic value so as to bring them under the definition of ‘drugs’. It further submitted that health benefits of ENDS were yet to be medically established.
Disagreeing with the Centre’s defence, Justice Bakhru observed :
“It does not appear that the devices in question are sold as therapeutic devices, or as medicines for internal or external use of human beings or animals or intended to be used for in the diagnosis of any disease. The said products do not have any medicinal value”
The court found that if e-cigarettes/ENDS are not drugs, then the DGHS would not have the jurisdiction to the issue the circular to states.
The stay has been granted on both documents till the date of next hearing, May 17.