Smokeless Tobacco Association Through Its President Namely Mr Jayesh Dolatrai Desai vs. Union Of INDIA Through The Secretary Ministry Of Health And Family Welfare

Held

The Court held that chewing tobacco cannot be treated as "food" under the FSSA, even if it contains food additives, as it remains essentially a tobacco product regulated under COTPA. The Court found that the Commissioner of Food Safety lacked the jurisdiction to issue a perpetual order prohibiting the storage, sale, or production of chewing tobacco. It was observed that the tobacco industry and food industry are distinct, with COTPA exclusively dealing with tobacco products and FSSA with foods other than tobacco, a view supported by a Patna High Court judgment. The Court also noted that banning only chewing tobacco while not banning smoking tobacco is discriminatory. The impugned notification dated December 18, 2018, was quashed due to lack of jurisdiction and non-application of mind by the Commissioner of Food Safety. However, the advisory dated September 21, 2017, from the Union of India, suggesting licensing under COTPA, was not quashed as it was not violative of any law. The Court clarified that this judgment does not permit the sale of Gutkhas containing Pan Masala and chewing tobacco as a mixture to be consumed as is. The Court also noted that no legislative impact assessment was made before issuing the notifications and that there was a colourable exercise of power by the respondents.

Facts

The Smokeless Tobacco Association, representing tobacco producers and traders, filed a writ petition challenging advisories and notifications issued by the Union of India and the State of Jharkhand. The petitioner sought to quash a letter dated September 21, 2017, suggesting a mechanism for licensing tobacco sales, and an order dated December 18, 2018, along with a notification dated January 12, 2021, issued by the Principal Secretary-cum-Commissioner of Food Safety, Government of Jharkhand. The petitioner argued that chewing tobacco, despite containing food additives, is a tobacco product regulated under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA), and not under the Food Safety and Standards Act, 2006 (FSSA). The State of Jharkhand had issued orders prohibiting the sale, storage, and production of chewing tobacco.

Key Issues

1. Whether chewing tobacco containing food additives falls within the definition of "food" under the Food Safety and Standards Act, 2006 (FSSA)? The petitioner contended that the definition of "food" under the FSSA, as guided by Codex Alimentarius standards, explicitly excludes tobacco. They argued that tobacco products are distinctly defined and regulated under COTPA, and the FSSA does not mention tobacco or tobacco products. The respondents' inference to include tobacco within the FSSA definition was deemed out of context. 2. Whether the Commissioner of Food Safety has the jurisdiction to permanently prohibit chewing tobacco containing food additives under the FSSA? The petitioner argued that the Commissioner lacked jurisdiction, citing the separate regulatory framework under COTPA. 3. Whether the tobacco industry and food industry are distinct, with the former falling under COTPA and the latter under FSSA? The petitioner asserted that COTPA is the exclusive law for tobacco products, while FSSA governs foods other than tobacco. 4. Whether scheduled tobacco products cannot be treated as "food" under FSSA even if they contain food additives, as they remain essentially tobacco products regulated under COTPA? The petitioner maintained this position, emphasizing the distinct regulatory domains. 5. Whether the impugned advisory and notifications are liable to be quashed due to lack of jurisdiction and non-application of mind by the Commissioner of Food Safety? The petitioner argued for quashing based on these grounds.