DELHI HIGH COURT STAYS GOVERNMENT’S BAN ON ELECTRONIC NICOTINE DELIVERY SYSTEMS
Dr K K Aggarwal and Advocate Ira Gupta
On Monday i.e. 18th March, 2019, the Hon’ble High Court of Delhi has stayed the operation of the letter / communication dated 22.02.2019 and also the circular dated 27.11.2018 of the Central Government in a writ petition.
Vide letter / communication dated 22.02.2019 the Central Government had requested the State Licensing authorities to endure that Electronic Nicotine Delivery Systems (ENDS) including e-Cigarettes, Heat Not Burn devices, Vape, e-Sheesha, e-Nicotine flavoured Hookah and the like devices that enable nicotine delivery are not sold, (including online sale), 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 under the Drugs and Cosmetics Act, 1940.
Vide circular dated 27.11.2018, all Customs Authorises were requested to ensure that the advisory issued by the Central Government is implemented and all authorises are directed to ensure import consignments of ENDS including e-Cigarettes, Heat Not Burn devices, Vape, e-Sheesha, e-Nicotine flavoured Hookah and the like devices / products are referred to drug control authorities.
In the said writ petition, the petitioners had claimed that as per the DGHS, ENDS do not qualify as “Drugs” under the Drugs and Cosmetics Act, 1940 and can’t be regulated under the said legislation.
While staying the operation of the aforementioned letters dated 22.02.2019 and circular dated 27.11.2018, the Hon’ble High Court has also held that ENDS are,prima facie, not drugs under Drugs and Cosmetics Act.