Breaking: Supreme Court Stays Madras HC Order Setting Aside Ban On Chewing Tobacco In Tamil Nadu

“....the petitioner made out a case for stay of the impugnment judgment para 13.”

Para 13 of the High Court’s order reads as under -

“13. We are therefore constrained to conclude that the successive notifications issued by the Commissioner of Food Safety relying upon Regulation 2.3.4 are not within the powers of the Commissioner and the Commissioner, Food Safety has exceeded its powers in issuing such successive notifications. We therefore quash the notifications on the ground that they are in excess of the powers of the Commissioner, Food Safety.”

While granting stay, a Bench comprising Justice KM Joseph and Justice BV Nagarathna clarified that in the event the manufacturers have a case that their activities are not covered by the notification issued by the State they may approach the appropriate forum seeking redressal.

“We make it clear that in case respondents have a case that their acts are not covered by the notification in question....they may seek redress at the appropriate forum.”

The State government in 2013 imposed a ban on tobacco and guthka products, using a temporary provision under the Food Safety and Standards Act, 2006. The ban was subsequently extended every year through various notifications.

In January, the Madras High Court set aside the notification based on the finding that the Commissioner had exceeded his powers. The High Court noted that the notification can be issued only as a temporary measure and permitting the concerned authority to impose a permanent ban by issuing successive notifications would amount to conferring power that is not contemplated under the Food Safety and Standards Act (FSSA) or the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act (COTPA). However, the Madras High Court disagreed with the views of the Delhi High Court that the provisions of COTPA would prevail over the provisions of FSSA and that ‘tobacco’ is not a food product within the meaning of Section 3(j) of FSSA.

Senior Advocate Kapil Sibal appearing on behalf of the State of Tamil Nadu averred that Section 30 of the FSSA confers power on the State Government (Commissioner of Food Safety) to prohibit manufacture, storage, distribution or sale of any food article in the whole State in the interest of public health. He submitted -

“We're protecting people from disastrous consequences of having food articles that result in cancer…It is the Government’s duty to protect people from the dangers…”

Sibal submitted that the ban notified by the State Governments emanates from the mandate fixed by the Court in Ankur Gutkha v. Indian Asthma Care Society And Ors. He pointed out that the only issue that needs to be considered by the Bench was whether the power to issue the notification can be exercised year on year. The Bench was reminded that one of the grounds for challenging the notification was that the FSSA does not contemplate banning by way of successive notifications, each operative for a year, in a routine manner.

Sibal emphasised that it was noted by the Apex Court in Ankur Guthka that in order to circumvent the ban on sale of guthka, the manufacturers were selling pan masala (without tobacco) with flavoured chewing tobacco in separate sachets, paving the way for consumers to buy the pan masala and flavoured chewing tobacco and mix and consume them. He contended that this is the same argument that the respondents have taken in the present proceedings.

Justice Nagarathna enquired, “Tobacco itself is not a food product?”

Sibal responded, “It has to be mixed with something. That would make it a food product.”

During the course of the argument, he highlighted that the respondents contend that the power to ban is with the Central Government under COTPA. He reckoned that if the Central Government is not willing to take action then can the same render the State Governments powerless.

Senior Advocate AM Singhvi appearing for one of the respondents argued that the law does not permit what the Tamil Nadu State Government is doing. He submitted that there is no allegation or statement of fact that the respondents have indulged in mixing the products and selling together. He argued that the inability of the State to regulate the paan shops from mixing or the consumers from doing so cannot be the basis for a ban. “Supposed powerlessness to regulate cannot be a basis for banning”, Dr. Singhvi argued.

Referring to Section 30(2)(a), he argued that it has three aspects. The provision reads as under -

“(2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:-- (a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette;”

The three elements are

1. territorial aspect (either whole of the state or any area or part thereof);
2. temporal aspect (not exceeding one year);
3. scope aspect - i.the trigger (in the interest of public health); ii. bullet targeted (activity prohibited); iii. subject matter (any article of food)

He argued that tobacco/chewing tobacco is admittedly not food.

“Chewing tobacco is never ingested. It is spit out. Tobacco is not food.”

Referring to the notification he submitted that chewable products banned therein are required to be food products. He argued that the present case is concerned with the ban on non food product simpliciter and the argument put forth by the respondents is that in such cases the State Government does not have jurisdiction to ban under FSSA. He argued that the State cannot ban a product just because it is capable of being added to a food item.

On the temporal aspect, Dr. Singhvi submitted that S. 30 states that the ban cannot exceed one year, but in the present case the State has banned/re-banned for 9 years by way of successive notifications. He emphasised that the statute does not say ‘one year at a time’ and in view of the same, the ban cannot go beyond the prescribed period of one year. It was submitted that though the State has vast power it cannot distort the law.

Justice Nagarathna asked Dr. Singhvi, “If the Central Government has not done it, is the State powerless?”

He responded, “I would argue that just because the Central Government has not done it, does it give power to the State to ban.”

Furthermore, he argued that the COTPA, a central legislation, is a comprehensive enactment to deal with trade commerce, production, supply, manufacture etc. of tobacco products. On the pretext of public health the State Government cannot usurp the power that lies with the Centre to issue notification banning tobacco products.

Towards the end, Justice Joseph sought clarification from Sibal if tobacco products can be considered as food products. Sibal responded in the affirmative, “The Supreme Court says so.”

He further submitted -

“If a person is manufacturing tobacco, the question is why is he doing so. No one manufactures tobacco as standalone...It is unfit for human consumption. They are manufacturing it to supply.”

Justice Joseph disagreed that tobacco cannot be consumed independently, “Don’t say that nobody consumes tobacco. I have lived with someone for a good part of my life who consumed it everyday. They spit it out, that is a different thing.”

Mr. Sibal requested the Bench to ask the respondents to file an affidavit stating the end use of the tobacco manufactured by them.

“They should disclose the end use of the tobacco they manufacture.”

[Case Title: State of Tamil Nadu vs Jayavilas Tobacco Traders LLP SLP (C)No. 5140/2023]