Madras HC Quashes Notifications Banning Tobacco Products, Observes Food Safety Commissioner Acted Outside His Scope

A Madras High Court Bench of Justice R Subramanian and Justice K Kumaresh Babu has quashed successive notifications issued by the Commissioner of Food Safety, which had banned the sale of tobacco products. In that context, it was observed that "the notification issued banning sale of tobacco and tobacco products is beyond the scope of the powers of the Commissioner of Food Safety under Section 30(2)(a) of the FSS Act."

Advocate General R Shanmugasundaram, assisted by Special Government Pleader KV Sanjeev Kumar appeared for the Appellant. Senior Counsel Vivek Kohli, Senior Counsel Satish Parasaran, and Counsel SR Rajagopal appeared for the Respondent side. 

In this case, an order of the Commissioner of Food Safety was challenged through writ petitions. The order had imposed a ban on the sale of Gutka, Pan Masala, flavored or scented food products, or chewable food products containing tobacco and/or Nicotine as ingredients, in the exercise of the powers under Section 30(2)(a) of the Food Safety and Standards Act. The order also stated that criminal prosecution would be initiated if there was a violation of the ban imposed. 

On a reading of Section 30(2)(a) of the Food Safety and Standards Act, the Court observed that "a power is vested in the Commissioner of Food Safety to prohibit in the interest of public health, the manufacture, storage, distribution or sale of any food article, for the whole State or any Part thereof for such period, not exceeding one year. This power, in our considered opinion, as observed by the Delhi High Court, is a power to impose a ban for a temporary period considering public health. This is akin to imposing a ban on poultry products when there is outbreak of bird flu and situations of like nature. This provision, in our opinion, cannot be used for imposing a permanent ban that too by issuing successive notifications year on year."

In furtherance of the same, the Court also observed that the power of the Commissioner of Food Safety to issue notifications banning the sale or manufacture of tobacco and allied products can only be temporary measures. Subsequently, it was held that "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."

In a similar vein, the Court also noted that the Food Safety and Standards Act and the Cigarettes and Other Tobacco Products Act (COTPA), 2003, unfortunately, do not provide for a complete ban on Tobacco products. In that context, it was observed that "If we are to up hold 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 bylaw and that will amount to doing violence to the provisions of the enactment."

In light of the same, the Court concluded that the impugned notifications were not issued within the powers of the Commissioner and that the Commissioner had exceeded its powers by issuing such notifications. Therefore, the notifications were quashed.

Parties were left to bear their own costs. 

Cause Title: The Designated Officer v. Jayavilas Tobacco Trades LLP

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