Delhi High Court — commercial challenge to the ENDS advisory's enforcement (2019)
Litigants including two companies and an individual consumer challenged two central measures enforcing the Health Ministry's August 2018 advisory on ENDS: a February 2019 communication asking state drug regulators to stop their sale and a November 2018 circular referring import consignments to drug control authorities. The court stayed both, taking the prima facie view that ENDS are not a "drug" under the Drugs and Cosmetics Act, 1940. Other litigants later relied on the order.
Outcome: Interim stay granted on 18 March 2019. The Union government's appeal against it was dismissed on 16 May 2019, and the stay continued until PECA, 2019 replaced the advisory with a national ban.
The petitions were heard together. On 18 March 2019 a single judge found that the devices are not sold as therapeutic and do not “have any medicinal value”, and was prima facie of the view that they fall outside the definition of a “drug”. If that is right, the court held, the issuing authority had no jurisdiction to issue the measures, so it stayed both until the next hearing. The order also noted the Drugs Consultative Committee’s 2015 finding that e-cigarettes are not covered by the Act.
The Union government appealed. On 16 May 2019 a Division Bench dismissed the appeal at that interlocutory stage, leaving the government free to seek variation of the stay after filing its counter-affidavit. On 17 May 2019 the court gave the government more time to file and continued the interim order.
The order was later relied on in a Bombay High Court petition in July 2019 and in an intervention application filed in the Jammu & Kashmir High Court. The petitions were closed once PECA, 2019 replaced the advisory with a national ban.
This is a commercial case, clearly distinct from AVI: it was brought by the companies and the individual named as petitioners, and AVI was not a party. AVI is a consumer advocacy organisation and does not fund, file or direct litigation on behalf of vendors or manufacturers. Where this case drew on research or legal arguments AVI has separately developed and published, that reflects publicly available analysis, not coordination between AVI and the litigants.