Madras High Court quashes TN government ban on gutkha, pan masala; says no law provides for permanent ban on tobacco

The Madras High Court recently ruled that the none of the Central or State laws on sale and consumption of tobacco and food safety provide for any permanent ban on tobacco and tobacco products and, therefore, government authorities cannot impose such ban on sale of tobacco products indefinitely [The Designated Officer v Jayavilas Tobacco]. .In a judgment passed on January 20, a bench of Justices R Subramanian and K Kumaresh Babu quashed a 2018 notification banning the sale of gutkha, pan masala, and other tobacco products in Tamil Nadu.The notification was issued by the Commissioner of Food Safety and Drugs Administration Department, Tamil Nadu under the Food Safety and Standards Act (FSS Act) of 2006 imposing a ban on the manufacture, storage, transport, distribution, or sale of chewable food products, guthka, pan masala, and any other products containing tobacco or Nicotine as ingredients for a period of one year.The Court said that the Commissioner had no power under the Act to impose such complete prohibition. The Court was hearing a petition filed by a Tobacco manufacturing company challenging the notification..The petitioner, Jayavilas Tobacco Traders, told the Court that the Commissioner had been extending such ban by issuing subsequent notifications to the same effect every time the previous one lapsed. The petitioner-company also requested that the prosecution initiated for breach of such ban be quashed. It argued that the FSS Act said stated that power to prohibit was an "emergency power" which could be invoked under special situations only.The Tamil Nadu government, however, defended the notification and submitted statistics on the rise in cases of health injuries caused by consumption of tobacco, to justify the ban..The High Court, however, refused to accept the State's submission, saying that neither the FSS Act nor the Cigarettes and Other Tobacco Products Act (COTPA) provide for a permanent ban. "We had already adverted to the Regulations as well as the Provisions of Section 30(2)(a) which have been invoked to justify the ban. Any total ban will have to be backed by a Statutory Power which is conspicuously absent in both the enactments under consideration," the High Court said. The petitioner-company also argued that tobacco products that did not contain any flavouring or additives and did not fall under the category of 'Food' as defined under the FSS Act. The petitioner further contended that the FSS Act was an Act that regulated food standards and the production, distribution and consumption of food. It was a general law, while the COTPA was a special law pertaining to tobacco products and the tobacco industry. Therefore, COTPA must override the FSS Act, it said. While the High Court refused to accept the submission that tobacco without additives was not food or that COTPA must override FSS Act, it agreed that the notification imposing permanent ban was not sustainable."A reading of the provision shows that a power is vested in the Commissioner of Food Safety to prohibit in the interest of public health, the manufacture, storage, distribution or sale of any food article, for the whole State or any Part thereof for such period, not exceeding one year. This power, in our considered opinion, as observed by the Delhi High Court, is a power to impose a ban for a temporary period considering public health.This is akin to imposing a ban on poultry products when there is outbreak of bird flu and situations of like nature. This provision, in our opinion, cannot be used for imposing a permanent ban that too by issuing successive notifications year on year," the High Court said. .It allowed the petition and directed that both the notification, and the consequent prosecution launched against the petitioner company be quashed. "If we are to up hold the power of the Commissioner, Food Safety, to issue successive notifications under Section 30(2)(a) thereby imposing an almost permanent ban on a food product, we will be permitting something which was not contemplated by law and that will amount to doing violence to the provisions of the enactment," the Court said Senior counsel Satish Parasaran and Vivek Kohli appeared for the petitioner company. Tamil Nadu Advocate General R Shunmugasundaram appeared for the respondent State. .[Read Judgment]