Recently, the Delhi High Court stayed the ban on E-Cigarettes and other Electronic Nicotine Delivery Systems.

The Hon’ble Court stayed the ban on the import, manufacture, sale and distribution of Electronic Nicotine Delivery Systems (hereinafter referred as ENDS). In this case, the Petitioners challenged a circular which directed the Customs authorities to authorize to ensure all the imported consignments of ENDS are referred to the authorities of Drug Control. The circular issued on November 27, 2018, was to ensure the implementation of the Ministry of Health & Family Welfare’s advisory to states recommending the ban on ENDS. Further, the Petitioner challenged a communication from the Director General of Health Services requesting state drug authorities to ensure that ENDS are not distributed, sold, manufactured, advertised or traded in their jurisdiction except if it is approved under the Drugs and Cosmetics Act, 1940.

The Petitioner placed his contentions on the definition of ‘drugs’ provided under Section 3(b) of Drugs and Cosmetics Act, 1940. The Petitioners contended that ENDS will not come under the definition of drugs and moreover, the Petitioners stated that ENDS offer healthier substitute to tobacco-based smoking habit because such devices do not produce the burning of cigarette paper.

The Respondents countering the Petitioner’s contentions submitted that ENDS were advertised as a replacement therapy for the tobacco addiction and have therapeutic value so it comes under the definition of ‘Drugs’.

The Hon’ble Court disagreed with the contention of the Respondents and observed that:

"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 held that e-cigarettes/ ENDS are not drugs and therefore, Directorate General of Health Services would not have jurisdiction to issue the circular to the States. The Court granted stay on both the circulars.