The Honourable High Court of Delhi on 18th of March, 2019 stayed an order issued by the Directorate of General of Health Services (DGHS) on the ban on the sale, manufacture, trade, distribution, import and advertisement of e-cigarettes and vapes which was issued last month.
Led by Honourable Justice Vibhu Bakhru, the bench said that prima facie these products do not fall under the category of “drugs” by definition under section 3 (b) of the Drugs and Cosmetics Act, 1940.
If you don’t know yet, an e-cigarette is an electronic device that runs on battery and emits doses of vaporized nicotine, or non-nicotine solutions. The product is designed to provide a similar sensation to inhaling tobacco smoke but is safe as it lacks the tar and other harmful byproducts that are present in traditional cigarette smoke.
“If the product in question is not a drug, respondent no 1 (DHGS), would not have jurisdiction to issue the impugned circular. In this view, the impugned communication and impugned circular are stayed, till the next date of hearing,” Delhi HC said.
Litejoy International Private Limited filed a plea to the Delhi High Court. Senior advocate Sandeep Sethi appeared for the petitioner and said that the use of such devices is not just an alternative to traditional tobacco products but is universally accepted, marketed, traded, distributed and sold as a substitute.
“The principal reason for promoting vaping or an e-cigarette device is de-addiction of the consumer from traditional tobacco smoking. The vaping devices and the alternative delivery system of e-cigarettes operates akin to a nicotine patch or nicotine gum which is freely sold in the markets and medical stores as a healthier alternative to tobacco smoking for nicotine consumption,” the plea filed through advocate Vivek Raja said.
The next hearing is scheduled for May 17. Prior to this decision, the Delhi High Court had earlier quashed an advisory by the Ministry of Health to prohibit the manufacture, distribution, trade and sale of Electronic Nicotine Delivery System (ENDS) and other related products as they do not fall within the definition of “drugs”.
The Ministry of Finance also issued a circular in February directing all customs authorities to refer import consignments of the ENDS to the Deputy Drug Controller in their jurisdiction. In August 2018, the ministry issued an advisory to all the state governments to ensure that the ENDS are not manufactured, distributed, advertised, imported or sold in their jurisdictions.
Following the advisories, 12 Indian states banned the sale and distribution of ENDS last week. The matter came to light when San Francisco-based Juul Labs was restricted from entering Indian markets. Juul Labs is US’s largest e-cigarette manufacturer. One of India’s top health official wrote a letter to the federal commerce secretary in February asking prevention of entry of such companies in Indian markets.
India has a smoking population of more than 10 crores. However, due to the difference in prices, e-cigarettes are gaining popularity only among the upper middle class. An average tobacco-cigarette cost ₹10 while the average price for e-cigarettes and vapes starts at ₹3,000.