“A DIVISION BENCH OF DELHI HIGH COURT CONFIRM TOBACCO PRODUCTS AS ‘FOOD’ UNDER FSSA & UPHOLDS BAN ON FLAVOURED TOBACCO, PAN MASALA, GUTKA IN THE NATIONAL CAPITAL”
In this case the division bench of Delhi High Court was dealing with an appeal filed by the Delhi and the Central government challenging the single-judge’s order setting aside the notifications issued by the Commissioner of Food Safety, Government of Delhi banning scented/flavoured tobacco, pan masala, gutka and similar products which were classified as “smokeless tobacco”.
It was held by the single-judge that these products cannot be classified as “food” within the meaning of Food Safety and Standards Act (FSSA) and that Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) occupies entire field relating to tobacco products.
It was further held that the classification sought to be created between smokeless and smoking tobacco for justifying the issuance of the notifications was violative of Article 14 of the Constitution as well.
After considering the case, the division bench of the Hon’ble Delhi High Court stated that a careful reading of the notifications under challenge would establish that what was proposed to be banned was not raw or pure tobacco but tobacco mixed with other ingredients and additives. Those articles were specified to be gutka, pan masala, flavoured/scented tobacco and other like products.
The division bench of the High Court rejected the single-judge’s findings that chewing tobacco, pan masala and gutka do not fall within the ambit of expression ‘food’ in the FSSA and that COTPA occupies the entire field when it comes to tobacco products.
The bench concluded that the food safety authorities do have power to prohibit food articles under the FSSA by virtue of Section 30(2)(a).
The Delhi High Court upheld the government notifications prohibiting the manufacture, storage, distribution or sale of scented/flavoured tobacco, pan masala, gutka and similar products in the national capital since the decision to ban these products was a policy decision taken by the government keeping in mind the large number of users of smokeless tobacco.
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