Latest News
Back
Document:
Whether tobacco products can be classified as food: Sanjay Anjay Stores & Anr. v. Union of India & Ors. (2017)
Date of Judgement: 01/11/2017
Court: High Court of Calcutta
Background:
The petitioners were involved in the sale and manufacture of tobacco products. The crux of the petitions was to obtain a declaration from the Hon’ble High Court as to the position of the petitioners under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA). Through the petition, they sought to enunciate that they were producers regulated by COTPA and outside the scope of the Food Safety and Standards Act, 2006 (FSSA).
The petition essentially challenges a notification dated 29/09/2014, passed under the FSSA and Regulation 2.3.4., that prohibited Zarda, Khaini, and all other tobacco products in the State of West Bengal until 30/04/2015.
Issues:
Whether the Commissioner of Food Safety had the authority to pass the impugned notification.
Whether tobacco products were to be seen as food for the purposes of the FSSA
Whether the enactment of FSSA repealed COTPA
COTPA, 2003:
The Act was special central legislation aimed at social welfare by cutting down on the use of tobacco substances. Section 3(k) of the Act states that production includes the making of materials listed under Schedule I of the Act, in addition to packing, labelling, re-packing, and adoption of methods to make tobacco products marketable. Section 2 declares that the Central Government should take the tobacco industry under its gamut for expediency.
Judgement:
The petitioners relied on section 2 of COTPA, 2013 as they contended that the State had no power to legislate in this regard. Entry 52, List 1 of the Constitution provides that the Union Government shall have power over subjects for which the Parliament by law has declared the Union to be expedient in the public interest. Article 162 also restricts the state’s powers to make laws over subjects not specified in its List.
Regulation 2.3.4. prohibited the use of tobacco and nicotine in food products. However, the regulation was a delegated legislation, founded under FSSA. The Court held that provisions of FSSA could not be interpreted in a matter so as to override special legislation such as COTPA that exclusively dealt with tobacco products.
Section 97 of the FSSA when read with Schedule II of FSSA, lists orders and legislation repealed by the enactment of the 2006 legislation. However, the same does not make any reference as to the validity of COTPA. The influx of newer legislation cannot be said to repeal existing legislation unless it specifically provides so. It was also held that no central legislation could be overruled by delegated legislation. The principle of a subordinate piece of legislation yielding to superior central legislation was applied, as Regulation 2.3.4. was a result of the FSSA. It was also identified that the regulation merely barred the use of tobacco and nicotine in food products and did not confer any additional power.
The power granted to an Inspector under section 30(2)(a) of the FSSA was held to have been for a temporary period and Regulation 2.3.4. had already barred the use of tobacco in food, thus not giving any effect. A perusal of the wordings under section 30 implies that the impugned section by itself does not confer power by itself to legislate.
The learned judge established that whenever tobacco or nicotine was used in a product, that product lost its individualistic character and became a tobacco product governed by the more stringent COTPA. The existence of an Act to regulate the trade of tobacco essentially connotes that it is not res extra commercium (thing outside commerce) and subsequently no blanket ban can be placed on the same. Reference was made to Godawat Paan Masala I.P. Ltd. V. Union of India (2004) 7 SCC 68 in which the Apex Court penned that an attempt to prohibit the trade of tobacco violates the freedom to trade under Article 19(1)(g).
The principle of “Generalia specilibus non derogant” was incorporated as the court reiterated that special legislation could not be overruled by a general one, solely because the general one came later. In 1978, the Supreme Court, through a verdict conveyed that newer general Acts had to yield to older special acts as the special act involved the entire dedication of the Parliament to that particular subject. [1]
Tobacco was already being regulated by the COTPA, and the Union Government was levying and collecting excise duty. Making tobacco subjected to another legislation that classified it as food (FSSA) would make the provisions of COPTA redundant. This would further negate the COPTA regulation on displaying caution over an area of 85% on the packaging. A notification passed by the Ministry of Health and Welfare on 13/02/2012 that declared all substances containing tobacco to fall within the purview of the COTPA. It is also pertinent to note that FSSAI had also clarified by a notification that products such as Zaidi and Khaini were purely tobacco based and wouldn’t fall within the gamut of the FSSA or its regulations.
The petitioner also raised the case of ITC Ltd. V. Agricultural Produce Market Committee (2002) 9 SCC 232, which declared tobacco not to be a food substance. Reliance was also placed on the decision in S. Samuel, M.D. Harrisons Malayalam v. Union of India (2004) 1 SCC 256 wherein food was said to have meant something chewed or drunk for bodily repair and nourishment. Tobacco is no way aids the body in nutrition, rather it severely impacts health, and such a substance can in no way be construed as food.
Furthermore, the impugned notification was contested to be invalid and grossly violative of the provisions of the Constitution as it sought to override the provisions of a superior enactment. It is a settled principle of law that a delegated legislation cannot go beyond the scope of its parent statute; neither can it repeal Central legislation not infringe upon fundamental rights. Such legislative power cannot be used to modify or repeal provisions of law as the same exceeds its purpose.
Concerning the other writ petition in question, the council on behalf of the 2nd petitioner submitted that the petitioner’s product under question was chewing tobacco that was devoid of Gutka and Pan Masala and thus could not be seen as a food product. It was emphasized that chewing tobacco was not a food product and the Commissioner by virtue of section 30 of FSSA had no authority to ban the sale of chewing tobacco.
The respondents adopted an interesting take on the concept of food products by defining it under the wide umbrella of “a product intended for human consumption”. They alleged that the FSSA had not expressly excluded tobacco from its scope, and an exception for tobacco could not be implied. The emphasis on the Supreme Court decision in Godawat Pan Masala was discredited on the grounds that the verdict was passed under the narrow meaning offered by the Prevention of Food Adulteration Act, 1954 and the same could not have similar binding power.
The decision in M/s Dhariwal Industries Ltd. V. State of Maharashtra (2012) that defined the word “food” to be wide enough to include tobacco products was brought to the notice of the court. In the Dhariwal case, a similar notification was challenged, but the court upheld its validity. The learned judge held there were conflicting decisions concerning notifications similar to the one in question as the court in Dhariwal validated the same, whereas a 2016 Patna judgement refuted the authority. However, the verdict in Dhariwal was an interim order, and there was no knowledge on the final decision, and the judge in the present matter concurred with the opinion of the Patna High Court in M/s Omkar Agency v. FSSAI.
The Hon’ble Court recognized that the impugned notification had lapsed during the pendency of proceedings, yet decided to proceed for the sake of principle. Emphasis was placed on 2 major questions, vis a vis, whether the products under question were “food products” according to section 3(1)(j) of FSSA and whether FSSA or COTPA would apply for regulating the manufacturing, storage, distribution and sale.
The learned single Judge opined that food meant articles that were edible and offered a source of energy and not stimulants such as zarda and other tobacco products. Individuals who consumed tobacco substances were also said to have had a psychological surge of energy rather than real. To strengthen the rationale, the learned judge looked into the preamble of the FSSA that provided for the establishment of science-based standards for regulation. Analogically, if tobacco were food, FSSAI would have to establish science-based standards to ensure safe and wholesome tobacco, which is virtually impossible due to the injurious nature of tobacco. The purpose of COTPA was upheld as it was specifically directed towards the sale and manufacture of this injurious product that caused harm to human life.
The judge further negated the second question posed by him as it was held that FSSA was merely a regulatory statute and such statutes conferred no power to Authorities to absolutely prohibit the use of a particular substance. Additionally, the Parliament’s move of not banning tobacco products in the entirety but rather regulation of its trade and commerce was highlighted.
Conclusion:
The judgement established that tobacco products and substances would not fall under the definition of food according to section 3(1)(j) of the FSSA. The statutes of COTPA and FSSA were said to have operated in different spheres, and there was no conflict amongst the legislations. Moreover, the purpose sought to be achieved by both the legislations was entirely different with FSSA aimed at minimum standards for food and COTPA, to regulate matters relating to Tobacco. The use of delegated power to prohibit trade and commerce was viewed to be Ultra vires and thus not valid in the eyes of the law. A Commissioner of Food Safety under the FSSA has neither authority nor jurisdiction over regulating tobacco products except in cases of its addition to food.
On lines of the established principles of law, the court upheld that FSSA, in no way repealed the provisions of COTPA. It was also added that the provisions of COTPA would override that of the FSSA as the former was special legislation and not the other way around.
[1] 1978 4 SCC 16.
Document:
