The Delhi High Court Tuesday quashed several notifications issued by the Commissioner of Food Safety, of Delhi government, which prohibited the manufacture, storage, distribution or sale of gutka, pan masala, chewing tobacco and similar products issued in the “interest of public health for a year” across the capital.
Around 50 entities engaged in the business of manufacture and sale of scheduled tobacco products, more particularly chewing tobacco, moved the Delhi High Court, challenging seven impugned notifications issued every year from 2015 to 2021. The petitioners challenged the notifications, as arbitrary and ultra vires the Food Safety and Standards Act 2006 (FSSA) and regulations and that the Commissioner was not empowered under the FSSA or regulations to impose such a prohibition as it is a scheduled product under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, and cannot in any manner be construed as “food” under the FSSA.
Justice Gaurang Kanth in the judgment noted that the intention of regulation 2.3.4 of the Food Safety Standards (Prohibition of Sale) Regulations 2011 is not to prohibit, but to restrict the use of tobacco or nicotine as ingredients in any food product. “…What has to be regulated under regulation 2.3.4 is food without tobacco and not tobacco itself, which is a scheduled item under the COTPA, which has to accordingly be regulated under the provisions of COTPA… The impugned notifications passed in view of regulation 2.3.4 in exercise of powers under section 30(2)(a) are beyond the scope of powers conferred by the FSSA in so far as they prohibit the use of tobacco…with respect to scheduled tobacco products covered under the COTPA, are beyond the scope of powers conferred by the FSSA,” the HC held, adding that although the notifications were passed on account of harmful effects of smokeless tobacco on public health, there is no differentiation in smokeless and smoking tobacco which may be different in form but not vis-a-vis its impact on public health.
The respondents argued that the Commissioner was within his rights to issue the impugned notifications under the FSSA to prohibit the manufacture, storage, distribution and sale of any article of food, such as chewing tobacco, in the interest of public health and welfare.
If an article has to be prohibited, then that is a matter of legislative policy and can’t be done by a mere notification passed by an executive authority. COTPA regulates the trade, sale and distribution of tobacco is which is subject to certain restrictions however it does not prohibit it. “It has never been the intention of the Parliament to impose an absolute ban on manufacture, sale, distribution and storage of tobacco and/or tobacco products. However, the intention of the Parliament is to regulate the trade and commerce of tobacco and tobacco products in accordance with the COTPA, a Central Act which deals with tobacco industry,” the Court held.
The Court further observed that under Section 30(2)(a) the Commissioner can issue prohibition orders only in emergent circumstances after giving an opportunity of being heard to the concerned food operator(s); the order cannot be for more than a year. However, the impugned notifications “have been issued year after year in a mechanical manner without following the general principles laid down under Section 18 and 30(2)(a) of the FSSA, which is a clear abuse of the powers conferred upon the Commissioner of Food Safety under the FSSA”.
“This clearly amounts to be an act which only the Legislature is entitled to exercise and no such power has been vested in the Commissioner of Food Safety in terms of the provisions of the FSSA. Thus, it is clear that Respondent No.1 has clearly exceeded its power and authority in issuance of the impugned Notifications in contravention of the powers conferred upon him under the FSSA,” the court held.
The petitioners had argued that the respondents were purporting to ban an artificially created sub-category of tobacco, namely, “smokeless tobacco‟ which includes chewing tobacco, pan masala, gutka, etc., and other scheduled tobacco products listed under the COTPA. The impugned notifications were passed on account of the harmful effects of smokeless tobacco products on public health, however, the court observed that “there is no justification whatsoever for making such a differentiation in smokeless and smoking tobacco, which may be different in their forms but are no different in terms of their impact on public health.”
The Court further held that the notifications which were issued under the regulations banning the use of tobacco in food articles even though “admittedly, tobacco and nicotine are not only found in smokeless tobacco but also in smoking tobacco, which has conveniently been excluded from the rigours of the impugned Notifications”. Therefore, there is no justification for the classification between smokeless and smoking tobacco sought to be created by the impugned Notifications issued by the Respondents.
The Court acknowledged the harmful effects of smokeless and smoking tobacco on public health; however, it held that the present case involves certain questions of law which cannot be decided merely on the basis of public consciousness and sentiments but have to be decided and settled based on the fair interpretation of the law in the light of the judicial precedents.