Several announcements banning the production, distribution, or sale of Gutka, Pan Masala, flavored tobacco, and related goods in the nation's capital have been overturned by the Delhi High Court. Seven notices have been sent out by the Commissioner of Food Safety since 2015.
According to Justice Gaurang Kanth, the notices were issued year after year without adhering to the general guidelines outlined by the requirements of the Food Safety and Standards Act, 2006.
"The classification sought to be created between smokeless and smoking tobacco for justifying the issuance of the impugned Notifications is clearly violative of Article 14 of the Constitution," the Court observed.
The Court accepted a number of pleas submitted by several businesses involved in the production and marketing of flavor- and odor-infused scheduled chewing tobacco products. The organizations asserted that they had secured the necessary legal licenses and permissions.
The Food Safety and Standards Act was one of the primary arguments against the contested notifications since it did not grant the Delhi Government's Commissioner of Food Safety the authority to enforce such a ban on the production or sale of chewing tobacco.
The petitioners cited the fact that tobacco products are scheduled goods under the Cigarettes and Other Tobacco Products Act (COTPA) and cannot be classified as "food" for purposes of the FSSA as their justification.
On the other hand, the Commissioner of Food Safety contended that it was completely within his rights to issue the contested notifications in the interest of public health and welfare in light of Section 30(2)(a) of the FSSA.
The Court noted that after reading Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011, it was not intended to outright exclude tobacco or nicotine from being used as an ingredient in any food product, but rather to restrict it.
The Court further noted that even the COTPA does not outright prohibit the sale and distribution of tobacco and tobacco products, with the exception of the application of a few restrictions and a number of checks and balances to control their promotion and distribution.
It further asserted that the decision of whether to declare anything to be res extra commercium (a thing outside trade) is a question of legislative policy and must result from law rather than just a notification given by an executive body.
"Thus, the trade, sale, and distribution of tobacco is permissible subject to certain restrictions imposed under the COTPA and the same has only been regulated and not prohibited," the Court noted.
As a result, it was determined that the COTPA, a specific law, governs tobacco and tobacco products and will triumph over the FSSA, a general statute.
The Court further ruled that tobacco cannot be referred to as "food" under the FSSA since no science-based criteria can be established to control its sale, distribution, and storage to ensure that it is safe and wholesome for human use.
The Court stated that there was no justification for differentiating between smokeless and smoking tobacco, "which may be different in their forms but are no different in terms of their impact on public health," despite the fact that the public health goal sought to be achieved by issuing the notifications.
It added "In the light of the aforesaid observations, it is apparent that the said classification/distinction between smokeless and smoking tobacco has no connection with the object sought to be achieved by the impugned Notifications. In fact, the said discrimination which is being promoted by the impugned Notifications encourages smoking tobacco over smokeless tobacco, thereby being not only clearly discriminatory but in violation of Article 14 of the Constitution."
Additionally, the Court ruled that the prohibition imposed by the contested notifications did not fall under the definition of "reasonable limits on the exercise of basic rights" under Article 19(6) of the Constitution.
The Court also underscored the negative impacts of tobacco use, including both smoking and vaping. Public health was cited as one of the most crucial aspects of society and the nation, and it was denounced and discouraged.
Thus, the Court upheld the pleas while rescinding the contested notices.