India

The Ministry of Health of the Union of India and the Government of the National Capital Territory of Delhi (GNCTD) appealed the lower bench decision of the Delhi High Court that quashed notifications issued by the Commissioner (Food Safety), GNCTD. The notifications were issued under the Food Safety and Standards Act 2006 (FSSA) and among other things, prohibited the manufacture, storage, distribution, and sale of gutka and pan masala (with tobacco and/or nicotine), flavored/scented tobacco, whether sold together or separately. The notification was to address manufacturers flouting the prohibition of mixing food with tobacco by selling separate pouches of pan masala and flavored chewing tobacco together, so that they can be easily mixed and consumed as one.  

The lower bench quashed the notifications, with a finding that tobacco could only be regulated under the Cigarettes and Other Tobacco Products Act 2003 (COTPA), as tobacco was not food under the FSSA, and that the Commissioner (Food Safety) exceeded the power and authority conferred upon him by the FSSA. The appellate bench of the High Court set aside the lower bench judgment and found that the notifications were not regulating tobacco products but instead regulated food products containing tobacco and nicotine, as permitted by the FSSA. Further, while COTPA regulates the use, advertisement, packaging, and sales to minors of tobacco products, it does not regulate all matters concerning tobacco products. Therefore, prohibiting tobacco and/or nicotine in food does not conflict with COTPA. Thus, the notifications were upheld.