Delhi High Court stays a ban on Electronic Nicotine Delivery Systems
The Delhi High Court, in the case of Piush Ahluwalia (“Piush”) v. Union of India (“UoI”) and Another, passed an order whereby it has stayed the Central Government’s ban on the import, manufacture, sale, and distribution of Electronic Nicotine Delivery Systems (“ENDS”) such as e-cigarettes, vapes, e-hookah etc.
The case involves a challenge to multiple circulars and notifications issued by the Government of India.
The first circular challenged was against a customs circular dated 27th November, 2018 which directed customs officers to seize all consignments of ENDS that are imported and instructed the implementation of the Ministry of Health & Family Welfare advisory dated 28th August, 2018 recommending a ban on ENDS. Secondly, this petition also challenged a communication from the Directorate General of Health Services dated 22nd February, 2019 giving directions that ENDS should not be sold, manufactures, distributed, traded, imported or advertised, except for the purpose and manner as provided under the Drugs and Cosmetics Act, 1940 (“Act”).
The main contention of Piush was that ENDS are a healthier substitute to conventional cigarettes and do not contain any tar, and that banning them would affect the consumer’s rights to choose ENDS over paper roll cigarettes. Further, Piush also contended that the actions taken by the government were discriminatory in nature, as it has only banned ENDS whilst not banning more harmful substances like paper roll cigarettes.
UoI, on the other hand, contended that the safety of ENDS is undetermined as of now and should not be accepted at face value. The UoI also contended that ENDS should fall under the definition of ‘Drugs’ under the Act due to their role in assisting smokers in giving up tobacco addiction.
The Delhi High Court, rejected the contention of the UoI, and held that ENDS did not, on the face of it, appear to fall under the definition of drugs and were not sold as therapeutic devices or medicines. Neither are they intended to be used for diagnosis or treatment of any disease, therefore the Directorate of General of Health Services would not have any power to issue any communication with regards to them.
Quick View:
- Consumption of ENDS has been rapidly growing all over the globe, with several countries taking note of their increasing popularity. With their entry into India, it remains to be seen how the government will regulate them. While regulating ENDS, the government will have to ensure that a balance is maintained between safeguarding public’s health and protecting consumer and business interests.
- It is our opinion that the Delhi High Court should have taken into consideration the safety of ENDS that was highlighted by the UoI and should have ordered UoI or any regulator it deems fit to look into these allegations and ensure that a proper safety audit is carried out on ENDS before they could be sold in India.
- In other countries where ENDS is sold, one of the main issues is the fact that one cartridge of an e-cigarette may have as much nicotine as an entire pack of cigarette, it would have been encouraging if the Delhi High Court, whilst permitting ENDS, ordered manufacturers to reduce the amount of nicotine in their product.
- It may also be wise for the Government of India to come up with comprehensive regulations on ENDS at the earliest. Otherwise, the industry may end up like the e-pharmacy industry whereby the Delhi High Courts and Madras High Courts have banned e-pharmacies across the country until the Government of India comes up with regulations. This has had an adverse impact on various e-pharmacy entities that have raised money or were looking to raise money.
Whatsapp and NASSCOM announce a join-initiative against fake news and misinformation
Keeping in mind the upcoming general elections and to tackle the spread of fake news and misinformation, Whatsapp announced that it has tied up with The National Association of Software and Services Companies (“NASSCOM”) to launch a joint-initiative aimed at imparting digital literacy and tackling the challenge of fake news and misinformation. Through this initiative, the parties hope to educate a minimum of 1,00,000 Indians.
The first training is scheduled to be held on 27th March, 2019 in Delhi followed by subsequent trainings, workshops, road shows etc. The trainings will be based on a curriculum designed to encourage people to be mindful about forwarding rumors and would also help people in spotting false information.
Quick View:
- The move from Whatsapp and NASSCOM comes as an inspiring sign of corporations taking up social responsibility. Such participation and social awareness is especially critical with the upcoming national elections. Hopefully, this will inspire other businesses to take a leaf from Whatsapp’s book and encourage more corporate participation in social causes.
- Considering the upcoming general elections in India, this move is a welcome move in order to contain the spread of fake and hate-filled news items on social media. We hope that this will lead to a more informed electorate for the upcoming elections.
Gujarat High Court adjourns Poker appeal to 20th June, 2019
As a new development in the story covered in our Bulletin Board on 12th February, 2019 pertaining to an appeal filed by Indian Poker Association of India and Dominance Games Private Limited against a Gujarat High Court judgment, a division bench of the Gujarat High Court has adjourned the appeal filed by Dominance Games Private Limited, Hotel Ramada Ahmedabad and Aman Chabbra to 20th June, 2019.
The parties filed the appeal against a ruling of the Gujarat High Court that had ruled poker to be a game of chance and therefore, falling within the ambit of gambling and making it illegal. The hearing is set to determine the legality of poker in the state.
Quick View:
- The matter has been pending for about a year and a half without any substantial progress. It is imperative that the issues receive their due hearing and are resolved at an expedited rate, especially given that the same might have a direct effect on similar matters pending in dispute before other courts in the country.