New Delhi: A vaping device importer has successfully got a temporary stay on the central government’s ban on e-cigarettes in India from the Delhi High Court.
Last month, the Central Drugs Standards Control Organisation (CDSCO) had issued a letter to all state drug controllers saying that they should not allow the sale, online sale, manufacture, distribution, trade, import or advertisement of electronic nicotine delivery systems (ENDS).
The note specified that this ban would extend to nicotine devices like e-cigarettes, heat and not burn devices, vapes, e-sheesha, e-nicotine flavoured hookah, etc.
Finally the CDSCO weighs in on ENDS: No sale, online sale, manufacture, distribution, trade, import or advertisement allowed for ENDS such as e-cigarettes, heat not burn devices, vapes, e-sheesha, e-nicotine flavoured hookah etc pic.twitter.com/jQlbqThlAP
— Anoo Bhuyan (@AnooBhu) March 15, 2019
ENDS products are marketed as an alternative to cigarettes, as they don’t have some of the harmful ingredients that go into pre-rolled cigarettes. However, the electronic devices release nicotine, which is itself contained in cigarettes, is addictive and is toxic if consumed beyond certain safe limits.
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While e-cigarette companies say that their ENDS devices are “less harmful” than cigarettes, there is no definitive research that has ascertained what other harms can be caused by the e-cigarettes, different or in addition to the harm from cigarettes.
This notwithstanding, the petitioner in the case, who is also an e-cigarette vendor, told the court that these devices are “not akin to a cigarette and have been internationally recognised as a healthier alternative to traditional tobacco smoking.”
In August 2018, the central health ministry issued an advisory to all states not to allow the sale of e-cigarettes. A few months later, the Delhi high court clarified that this advisory would not be binding on states who could take their own “informed decision.” By March 2019, 12 states had banned e-cigarettes.
Both these orders have been passed by Justice Vibhu Bakhru. A number of litigants have approached the courts asking for e-cigarettes to be allowed in India, including a “housewife,” a “former cigarette smoker,” and two e-cigarette vendors.
Bakhru said that ENDS does not appear to be a “drug” as defined in Section 3 of the Drugs and Cosmetics Act, and thus the CDSCO may not actually be able to regulate on it. The judge also said that the devices are not being sold as therapeutic devices with medicinal value, for the treatment of any disease.
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E-cigarettes companies have been vying for a share of the Indian market, with public and private lobbying going on to break into India. So far, the Indian government has not been keen to allow the formal entry although ENDS is easily available for a price in all major cities and also available for sale online.
In January, The Wire reported that three ministries were looking to stem the entry of e-cigarettes. Apart from the Health Ministry, the customs department has also issued circulars saying consignments of ENDS should be referred to state drug controllers. The Ministry of Electronics and Information Technology is also seeking to amend rules for online advertisements, which will prevent the advertising of ENDS.
The case in the Delhi high court on the regulation of e-cigarettes will come up for hearing again in May.