The Delhi High Court has stayed the Central Government’s decision to ban e-cigarettes and other Electronic Nicotine Delivery systems in India..The order was passed by a Single Judge Bench of Justice Vibhu Bhakhru.On February 22, 2019, the Directorate General of Health Services under the Central Government had requested the State licensing authorities to ensure that Electronic Nicotine Delivery systems (ENDS) including e-cigarettes, Heat-Not Burn devices, e-sheesha, e-Nicotine Flavoured Hookah etc that enable nicotine delivery are not sold, manufactured, distributed, traded, imported and advertised in their jurisdictions, except for the purpose and in the manner and to the extent, as may be approved by the Drugs and Cosmetics Act, 1940..Prior to the Communication, it had also issued a Circular on November 27, 2018, asking all Customs Authorities to ensure compliance with Centre’s advisory on the ban of ENDS..Petitions were filed against the same by two electronic cigarette companies, Litejoy International Pvt Ltd and M/S Focus Brands Trading (India), and an individual Piush Ahluwalia (Petitioners)..It was argued by the Petitioners that ENDS were healthier substitutes to smoking combustible cigarettes as their use did not entail any tar. It was also argued that the decision affected the right of the consumers to choose e-cigarettes in place of paper roll cigarettes..Additional Solicitor General, Maninder Acharya, on the other hand, stated that the safety of ENDS was yet to be determined and could not be accepted at face value..Justifying the use of power to ban ENDS in terms of the Drugs and Cosmetics Act, 1940, she further submitted that since ENDS assisted smokers to give up their tobacco addiction, therefore, ENDS and all other devices fell within the definition of ‘drugs’ as defined under Section 3(b) of the Act..The Court, however, held that prima facie it appeared that the products did not fall within the definition of a drug as defined under the Act..It observed that the devices under question were not sold as therapeutic devices, or as having any medicines for internal or external use of human beings or animals, or intended to be used in the diagnosis or treatment of any disease..Since ENDS had no medicinal value, the Directorate General of Health Services would not have the power to issue the communication and circular under challenge, the Court stated. It, therefore, stayed the communication and circular..“If the product in question is not a drug, respondent no. 1 would not have the jurisdiction to issue the impugned circular. In this view, the impugned communication and the impugned circular are stayed, till the next date of hearing.”.Pursuant to the order, Central Government will file its response to the challenge within two weeks..The Petitioners were represented by Senior Advocates Sandeep Sethi and Rajiv Nayyar along with advocates Raj Shekhar Rao, Vivek Raja, Ankur Kashyap, Ashish Gupta, Sandeep Chillana, Kamaljit Singh, Aditya Mukherjee, Rakshit Akshay Jha, Saurabh Seth, Tanmay Mehta, Adarsh Ramanujan, Sanjay Subhudi and Prabhat. .The Respondents were represented by ASG Maninder Acharya and advocates Kirtimaan Singh, Vikas Mahajan, Rakesh Kumar, Parth Senwal, Viplav Acharya, Ranjit Singh and Akash Verma..The case would be next heard on May 17.
The Delhi High Court has stayed the Central Government’s decision to ban e-cigarettes and other Electronic Nicotine Delivery systems in India..The order was passed by a Single Judge Bench of Justice Vibhu Bhakhru.On February 22, 2019, the Directorate General of Health Services under the Central Government had requested the State licensing authorities to ensure that Electronic Nicotine Delivery systems (ENDS) including e-cigarettes, Heat-Not Burn devices, e-sheesha, e-Nicotine Flavoured Hookah etc that enable nicotine delivery are not sold, manufactured, distributed, traded, imported and advertised in their jurisdictions, except for the purpose and in the manner and to the extent, as may be approved by the Drugs and Cosmetics Act, 1940..Prior to the Communication, it had also issued a Circular on November 27, 2018, asking all Customs Authorities to ensure compliance with Centre’s advisory on the ban of ENDS..Petitions were filed against the same by two electronic cigarette companies, Litejoy International Pvt Ltd and M/S Focus Brands Trading (India), and an individual Piush Ahluwalia (Petitioners)..It was argued by the Petitioners that ENDS were healthier substitutes to smoking combustible cigarettes as their use did not entail any tar. It was also argued that the decision affected the right of the consumers to choose e-cigarettes in place of paper roll cigarettes..Additional Solicitor General, Maninder Acharya, on the other hand, stated that the safety of ENDS was yet to be determined and could not be accepted at face value..Justifying the use of power to ban ENDS in terms of the Drugs and Cosmetics Act, 1940, she further submitted that since ENDS assisted smokers to give up their tobacco addiction, therefore, ENDS and all other devices fell within the definition of ‘drugs’ as defined under Section 3(b) of the Act..The Court, however, held that prima facie it appeared that the products did not fall within the definition of a drug as defined under the Act..It observed that the devices under question were not sold as therapeutic devices, or as having any medicines for internal or external use of human beings or animals, or intended to be used in the diagnosis or treatment of any disease..Since ENDS had no medicinal value, the Directorate General of Health Services would not have the power to issue the communication and circular under challenge, the Court stated. It, therefore, stayed the communication and circular..“If the product in question is not a drug, respondent no. 1 would not have the jurisdiction to issue the impugned circular. In this view, the impugned communication and the impugned circular are stayed, till the next date of hearing.”.Pursuant to the order, Central Government will file its response to the challenge within two weeks..The Petitioners were represented by Senior Advocates Sandeep Sethi and Rajiv Nayyar along with advocates Raj Shekhar Rao, Vivek Raja, Ankur Kashyap, Ashish Gupta, Sandeep Chillana, Kamaljit Singh, Aditya Mukherjee, Rakshit Akshay Jha, Saurabh Seth, Tanmay Mehta, Adarsh Ramanujan, Sanjay Subhudi and Prabhat. .The Respondents were represented by ASG Maninder Acharya and advocates Kirtimaan Singh, Vikas Mahajan, Rakesh Kumar, Parth Senwal, Viplav Acharya, Ranjit Singh and Akash Verma..The case would be next heard on May 17.
