The Supreme Court on Tuesday stayed a Madras High Court verdict quashing a May 2018 notification prohibiting sale, manufacture and transport of gutkha and other tobacco-based products in Tamil Nadu.
A bench of justices KM Joseph and BV Nagarathna stayed the high court verdict dated January 20.
“We are of the view that the petitioner (Tamil Nadu) has made out a case to stay the impugned judgment with regard to paragraph 13,” the bench said.
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, it added.
Senior advocate Kapil Sibal and Additional Advocate General Amit Anand Tiwari, appearing for the Tamil Nadu government, said health is a state subject and the state government has every right to take care of the health of its citizens.
Sibal said that a number of health problems due to chewing of tobacco pose a huge burden on the state exchequer and the ban was imposed on sale, manufacture and transport of gutkha and other tobacco-based products based on the directive of the apex court.
Several senior lawyers, including CS Vaidyanathan, appeared for the firms engaged in the trade of gutkha and pan masala.
On March 4, the top court sought a response to a plea challenging an order of the Madras High Court quashing the May 2018 notification.
It had sought response from the food safety commissioner, Jayavilas Tobacco Traders and others on the plea filed by the Tamil Nadu government.
Tiwari, appearing for the state, argued that orders of the food safety commissioner banning sale, storage, manufacture of gutkha and other tobacco products are backed by Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011.
The high court had set aside the notification issued by the food safety commissioner on May 23, 2018, banning manufacture, storage, transport, distribution and sale of gutkha, pan masala and other chewable food products containing tobacco or nicotine as ingredients.
It had held that allowing the food safety commissioner to impose a permanent ban on tobacco products by issuing successive notifications year after year would amount to conferring a power that was not provided in the law.
Holding that tobacco, with or without additives, is a food product, the high court had held that notifications banning gutkha and pan masala in Tamil Nadu issued by the food safety commissioner are not within his powers and quashed the same.
The state government in its appeal filed by advocate on record TS Sabarish and drawn by advocate Devyani Gupta said that the high court held that tobacco, with or without additives, is a food product as defined under Section 3(1)(j) of the Food Safety and Standards Act, 2006.
It said that the high court erroneously held that notifications banning gutkha and pan masala in the state issued by the food safety commissioner under Regulation 2.3.4 of the 2011 regulations are not within his powers and quashed the same.
“This court has on several previous occasions expressed its approval of banning gutkha, pan masala and other related products, in view of several concerns, inter alia, related health issues, plastic waste generation etc,” it said.
The appeal said that it is also pertinent to mention at the outset that Regulation 2.3.4 of the 2011 regulations also clearly prohibits the use of tobacco or nicotine in any food products and this regulation has not been challenged by the respondents herein (tobacco traders firms).
It said that pursuant to the views expressed by this court, and in order to further ensure the implementation of the prohibition, the state passed orders under Section 30(2) of the Food Safety and Standards Act banning manufacture, storage, transport, distribution or sale of gutkha and pan masala, flavoured or scented food products or chewable food products by whatever name called, whether packaged or unpackaged and/or sold as one product, or through packaged as separate products, sold or distributed in such a manner so as to easily facilitate mixing by the consumer and any other food containing tobacco or nicotine as ingredients.
“These orders under Section 30(2) are valid for 1 year only and at the expiry of such period, the State of Tamil Nadu passed similar order afresh to ensure that the ban continues,” it said.
The appeal added that the reports have found that consuming smokeless tobacco or chewing tobacco have number of harmful effects and it further causes various cancerous diseases like oral premalignant lesions/conditions, oral cancer, oesophageal cancer, stomach cancer, pancreatic cancer, throat (pharynx and larynx) cancer, in addition to non-cancerous conditions.
