Ban on sale of tobacco by Delhi government held arbitrary, set aside by Delhi HC

ON September 27, the Delhi High Court set aside notifications that sought to prohibit the manufacture, storage, distribution or sale of gutka, pan masala, flavoured/scented tobacco, kharra and similar products in the interest of public health for a period of one year throughout the National Capital Territory of Delhi ('NCT of Delhi'), as being beyond the scope of powers under the Food Safety and Standards Act, 2006 ('FSSA').

In Sugandhi Snuff King Pvt. Ltd. & Anr versus Commissioner (Food Safety) Government of NCT of Delhi, a the single-judge bench of Justice Gaurang Kanth observed that the impugned notifications issued by the Commissioner of Food Safety, Government of NCT of Delhi in view of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction of Sales) Regulations, 2011, in purported exercise of powers under Section 30(2)(a) of the FSSA, is arbitrary and ultra vires the FSSA.

The FSSA is an Act to consolidate all laws relating to food; it establishes the Food Safety and Standards Authority of India ('FSSAI') which lays down science-based standards for articles of food.

'Food' under FSSAI does not include tobacco 

One of the main grounds of the challenge to the impugned notification was that the FSSA does not empower any authority to impose a ban under section 30(2)(a) read with Section 18 as the tobacco and similar products do not come within the definition of 'food'. Tobacco is already a scheduled product under the Cigarettes and Others Tobacco Products (Prohibition of advertisement and regulation of trade and commerce, production, supply and distribution) Act, 2003 ('COTPA').

The high court observed that FSSAI's mandate is to lay down science-based standards for food and to regulate them. Tobacco, the court stated, cannot be termed as 'food' within the meaning of the FSSA under Section 3(1)(j), as no science-based standards can be laid down for tobacco to regulate its sale, distribution and storage in order to ensure safe and wholesome tobacco for human consumption.

The court also stated that the respondents' argument that the notifications don't ban tobacco but only the artificially created sub-category of 'smokeless tobacco' has no rational nexus to the object of public health to be achieved through these impugned notifications.

The classification sought to be created between smokeless and smoking tobacco for justifying the issuance of the impugned notifications is violative of Article 14 of the Constitution, the court held.

Powers to regulate does not include the power to prohibit 

Further, it was held that the FSSA's power is to establish standards of quality for goods, which does not include within its purview the power to prohibit the manufacture, sale, storage or distribution of any goods.

Moreover, this would preclude goods that pertain to the scheduled tobacco products under the COTPA. The Statement of Objects and Reasons of COTPA clearly states that it is an Act for "the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and 'other tobacco products and for matters connected therewith'".

The court relied on the Supreme Court's judgment in Himat Lal K. Shah versus Commissioner of Police, Ahmedabad & Anr (1972) and observed that by bare perusal of the entire scheme of the FSSA, it is apparent that the power to frame regulations does not include the power to prohibit the manufacture, distribution, storage and sale of a product.

In Himat Lal, the Supreme Court had explicitly held that the power to regulate does not normally include the power to prohibit.

Moreover, the high court further clarified that Regulation 2.3.4 does not intend to prohibit, but instead restricts the use of tobacco or nicotine ingredients in any food product. Thus, what has to be regulated under Regulation 2.3.4 is food without tobacco, and not tobacco itself, the court has stated in its judgment. The regulation of tobacco will accordingly be done under the COTPA, ruled the court.

General legislation cannot override specific legislation 

The court also held that the notifications violated Article 19(1)(g) of the Constitution as the power to prohibit lies within the essential legislative domain, and such powers had not been delegated by the Parliament to any executive authority. It is already clear that through Entry 52 of List I of the Seventh Schedule of the Constitution that the Parliament is to legislate upon the tobacco and food industry.

However, it is also clear that Section 2 of the FSSA gives the Union Government the control to take over the "food industry", whereas Section 2 of the COTPA gives similar control over the "tobacco industry". Thus, "food industry" does not cover within its ambit "tobacco industry". Moreover, FSSA is a general legislation whereas COTPA is a specific legislation solely for the purposes of regulation of tobacco and its products. A general legislation cannot override a specific central legislation, the judgment observed.

Lastly, the court also noted that the impugned notifications were issued in a mechanical manner, year after year, despite the fact that section 30(2)(a) of the FSSA clearly stipulates that the maximum period for which the prohibitory order may be passed is no more than one year. This is a clear abuse of powers conferred to the Commissioner of the Food Safety under the FSSA, which is transitory in nature and can only be involved in emergent circumstances after giving an opportunity of being heard to the concerned food operator, held the court.

Click here to view the full judgment of the Delhi High Court.