Are Tobacco Products 'Food' Under Food Safety Act? Andhra Pradesh High Court Refers Issue To Division Bench

The Andhra Pradesh High Court has referred to division bench the issue whether tobacco products can be considered as 'food' under the Food Safety and Standards Act, 2006.

Justice R. Raghunandan Rao, while considering a batch of writ petitions disagreed with earlier single bench view that Chewing Tobacco, Pan Masala and khaini cannot be treated, under the Food Safety Act, as food, and as such, the provisions of the Food Safety Act would not apply to these tobacco products.

In this case, the petitioners had approached the court aggrieved by the action of the police authorities, and in some cases the authorities under the Food Safety and Standards Act, seizing tobacco products, either at the stage of transportation or at the stage of storage or sale of these products. The following were the issues raised by the petitioners:

1) Do any of the Tobacco products, enumerated in the Schedule to the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, answer, the description of Food, as defined under Section 3 (1) (j) of the Food Safety Act and consequently amenable to the jurisdiction of the said Act;
2) In the event, any of Tobacco Products, enumerated in the Schedule to the COTP Act, are held to fall within the meaning of Food , as defined under Section 3 (1) (j) of the Food Safety Act, is there a conflict between the COTP Act and the Food safety Act.
3) In the event of such conflict, which Act would prevail? To what effect?
4) Whether the manufacture sale and distribution of tobacco products would amount to offences to under Sections 188, 269, 270, 272, 273 and 328 of the Indian Penal Code and whether the provisions of the COTP Act would preclude these provisions from being invoked?

The tobacco products, viz., Chewing Tobacco, Pan Masala or any chewing material having tobacco as one of its ingredients (by whatever name called), Gutka and Tooth Powder containing tobacco would have to be construed as food, the judge opined referring to two Supreme Court judgments in Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Godawat Pan Masala Products I.P. Limited, v. Union of India.

However, taking note of the opposite view taken in an earlier single bench judgment, the judge referred these cases to division bench.

"The COTPA Act is a special Act intended to deal with trade, commerce, production, supply and distribution of tobacco products. Although it is universally recognised that tobacco products are injurious to health, the fact remains that their production, trade and supply etc., are not banned in their entirety… Whatever be the impact of tobacco products on the health of an individual or the nation; till the law is amended/modified it has to be followed," Justice K. Suresh Reddy had observed in a judgment passed in November 2020.

Case: Dasa Shekar vs. State of Andhra Pradesh ; W.P.No.7336 of 2021 and connected cases

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