Madras HC quashes TN's notification banning tobacco products

CHENNAI: A division bench of the Madras High Court set aside a notification issued by the Food Safety Commissioner in 2018 to ban the sale of tobacco and tobacco products ie., Gutka, Pan Masala, flavored or scented food products, or chewable food products.

Heading the bench along with Justice K Kumaresh Babu, Justice R Subramanian passed the orders on allowing a batch of writ petitions.

The judges ruled in favour of the petitioners on the ground that the Food Safety Commissioner has no powers under Section 30 (2)(a) of The Food Safety and Standards Act (FSSA), 2006 to issue such a notification to ban the sales of tobacco products permanently.

"…the notifications can be only temporary measures and allowing the Commissioner, Food Safety to impose a permanent ban by issuing successive notifications would amount to conferring a power that is not contemplated by the statute, " the judges wrote, adding, "if we are to uphold 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, " the judges wrote.

The judges also noted that any total ban will have to be backed by a Statutory Power which is conspicuously absent in both the enactments under consideration.

The court also illustrated 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 and the bench noted that, "we, therefore, quash the notifications on the ground that they are in excess of the powers of the commissioner, food safety."

The petitioners submitted that provisions of the FSS Act contend that chewing Tobacco per se without any additives will not fall within the definition of Food under the FSS Act and as such the Commissioner of Food Safety will not have the power to ban its manufacture, sale, etc.

However, Advocate-General R Shunmugasundaram submitted that the definition of food in the FSS Act, 2006 is much wider and will take within its sweep a large number of products that would not have been covered by the definition of Food in the prevention of Food Adulteration Act, 1954.