Chewing Tobacco Not Excluded From "Food" Under FSSA: Orissa High Court Upholds Notification Regulating Its Use In Food Products
The Court clarified that the notification must be enforced only as a measure implementing Regulation 2.3.4 of the Food Safety and Standards Regulations, 2011, and not as an independent prohibition on tobacco products outside the FSSA framework.
The Orissa High Court has held that manufactured or processed chewing tobacco intended for human consumption by chewing is not excluded from the definition of “food” under Section 3(1)(j) of the Food Safety and Standards Act, 2006.
The Court refused to interfere with the Odisha Government’s notification prohibiting food products containing tobacco or nicotine, while clarifying that it must operate only within the FSSA and Regulation 2.3.4.
The Court was hearing a batch of writ petitions under Articles 226 and 227 of the Constitution challenging Notification No.2065/H&F.W. dated 21.01.2026 issued by the Health and Family Welfare Department, Government of Odisha, insofar as it was sought to be applied to chewing tobacco with or without additives, flavours and scents.
A Single Judge Bench of Justice Sanjeeb K Panigrahi held that “manufactured or processed chewing tobacco intended for human consumption by chewing is not excluded from the definition of “food” under Section 3(1)(j) of the FSSA.” and that “manufactured chewing tobacco is not excluded from the operation of Regulation 2.3.4 merely because tobacco constitutes the predominant component of the product.”
Senior Advocates C.S. Vaidyanathan and Vivek Kohli appeared for the petitioners; Additional Standing Counsel Gayatri Patra appeared for the State.
Background
The lead petitioner, a company engaged in manufacturing and selling chewing tobacco under the brand “GOPAL”, challenged the Odisha notification which prohibited manufacture, processing, packaging, storage, transportation, distribution or sale of all food products containing tobacco or nicotine as ingredients in the State.
The notification referred to Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, which prohibits the use of tobacco and nicotine as ingredients in any food product. It also referred to the Supreme Court’s order in Central Arecanut Marketing Corporation & Ors. v. Union of India (2016) and the Food Safety and Standards Authority of India’s clarification that tobacco has not been excluded from the definition of “food” under Section 3(1)(j) of the FSSA.
The petitioners contended that chewing tobacco is a scheduled tobacco product under the Cigarettes and Other Tobacco Products Act, 2003, and that COTPA is the special law governing tobacco products. They argued that Regulation 2.3.4 prohibits adding tobacco or nicotine to food, but does not prohibit chewing tobacco as a product in itself.
They also submitted that Section 30(2)(d) of the FSSA did not confer an independent prohibitory power, that any prohibition under Section 30(2)(a) could operate only for a limited period, and that the notification violated Articles 14, 19(1)(g) and 21 of the Constitution.
The State contended that the notification merely implemented Regulation 2.3.4 and was issued under Section 30(2)(d) to secure uniform implementation of an existing statutory requirement. It submitted that chewing tobacco falls within the wide definition of “food” under Section 3(1)(j), and that COTPA and FSSA operate in distinct though overlapping statutory fields.
Court’s Observations
The Court noted that Section 3(1)(j) defines “food” to mean any substance, whether processed, partially processed or unprocessed, intended for human consumption. It found that the statutory text does not require nutritive value, nourishment or swallowing as essential conditions.
The Court observed: “The statutory language employed in Section 3(1)(j), however, is wider. The controlling words are “any substance… which is intended for human consumption”. The Legislature has not qualified those words by stipulating that, in order to constitute “food”, the substance must possess nutritive value or must be consumed for nourishment, growth or maintenance of the human body. To import such a requirement into the provision would be to introduce a limitation which the Legislature itself has not enacted.”
The Court also relied on the express inclusion of chewing gum within the definition. It held that chewing gum is ordinarily placed in the mouth, chewed and discarded, yet Parliament specifically included it as food. Therefore, chewing tobacco being chewed and later discarded would not, by itself, take it outside Section 3(1)(j).
The Court rejected the contention that Regulation 2.3.4 applies only where tobacco or nicotine is added to another food product. It referred to the definition of “ingredient” under Section 3(1)(y) of the FSSA and held that the provision does not prescribe any quantitative threshold.
The Court observed: “Regulation 2.3.4 must be understood in the light of these provisions. It declares that tobacco and nicotine “shall not” be used as ingredients in any food products and does not distinguish between a product in which tobacco constitutes the predominant component and one in which tobacco is present in a lesser proportion.”
It held that where tobacco is used in the manufacture or preparation of chewing tobacco and remains present in the final product, the fact that tobacco is the predominant component does not take it outside the statutory meaning of “ingredient”.
On the source of power, the Court distinguished Section 30(2)(a) from Section 30(2)(d) of the FSSA. It held that Section 30(2)(a) deals with prohibitions imposed by the Commissioner in the interest of public health, while Section 30(2)(d) concerns implementation of standards and requirements already specified under the Act.
The Court held: “In the present case, the Notification neither seeks to substitute Regulation 2.3.4 nor seeks to create a prohibition independent of that Regulation. Its operation is founded upon the prohibition already contained therein. The exercise undertaken by the Commissioner is one of implementing an existing regulatory prohibition rather than imposing a fresh prohibition under Section 30(2)(a).”
At the same time, the Court clarified that Section 30(2)(d) does not authorise enlargement of Regulation 2.3.4. The notification, it said, could not operate as a general prohibition on tobacco or tobacco products falling outside the statutory field of the FSSA.
The Court noted that chewing tobacco is included in the Schedule to COTPA, which regulates advertisement, trade, commerce, production, supply, distribution, sale restrictions, packaging and statutory warnings relating to tobacco products. However, it held that the existence of COTPA does not automatically exclude FSSA where a product falls within the food-safety field.
The Court observed: “It is neither necessary nor appropriate, however, to hold that COTPA stands displaced in its entirety. No such consequence follows either from Section 89 or from the scheme of the FSSA. The two enactments are capable of substantial concurrent operation.”
It held that COTPA continues to govern tobacco products in matters entrusted to it, while FSSA operates where a product falls within its statutory field and the Act and Regulations are attracted. It added that the case did not concern displacement of COTPA in its entirety.
The Court rejected the Article 14 challenge based on differential treatment between smokeless or chewing tobacco and smoking tobacco such as cigarettes and bidis. It held that Regulation 2.3.4 does not prohibit tobacco simpliciter, but prohibits tobacco and nicotine when used as ingredients in food products.
The Court found that cigarettes and bidis are intended for combustion and inhalation, whereas manufactured chewing tobacco products are intended for oral consumption. The fact that both fall within COTPA’s Schedule did not make them similarly situated for the purposes of FSSA.
The Court noted that Godawat Pan Masala Products (P) Ltd. v. Union of India (2004) did not treat trade in tobacco as res extra commercium, and therefore the restriction had to be tested under Article 19(6). It found that Regulation 2.3.4 had a direct nexus with protection of public health from tobacco and nicotine used as ingredients in products intended for human consumption.
The Court held: “The Petitioners contend that regulation rather than prohibition would constitute a less restrictive alternative. This contention cannot be accepted once Regulation 2.3.4 is held applicable as the Regulation itself provides that tobacco and nicotine shall not be used as ingredients in food products.”
On Article 21, the Court accepted that livelihood is a facet of the right to life, but held that it does not confer an absolute right to continue a particular trade irrespective of valid regulatory law. Since the measure was found authorised by FSSA and consistent with Article 19(6), livelihood impact did not independently invalidate the notification.
The Court rejected the contention that the notification was invalid for want of a separate risk assessment or individual pre-notification hearing under Section 18 of the FSSA. It held that the Commissioner was not formulating a new substantive prohibition, but enforcing Regulation 2.3.4.
The Court observed: “In such circumstances, the Commissioner cannot be required to undertake afresh the exercise which preceded the framing of the Regulation itself. The absence of a separate pre-notification hearing does not, therefore, invalidate the impugned Notification.”
However, it clarified that this did not dispense with procedural safeguards where individual action, including suspension or cancellation of licence, adjudication, prosecution or other coercive proceedings, is initiated.
The Court noted that GST communications and show-cause notices referred to the impugned notification, but held that they arose under a separate statutory framework. It left all objections available to the concerned petitioners in those proceedings open for independent consideration by competent authorities.
It also held that newspaper publications concerning the notification had no bearing on its validity or scope. The legal effect of the notification had to be determined from its own terms, read with the statute and regulations under which it was issued.
Conclusion
The Court dismissed the writ petitions and vacated any interim order passed earlier. It clarified that Notification No.2065/H&F.W. dated 21.01.2026 shall be understood and enforced only as a measure implementing Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 read with the relevant provisions of the FSSA, and not as an independent prohibition on tobacco or tobacco products dehors the statutory requirements under the FSSA and the Regulation. It further held that any action pursuant to the notification must conform to applicable law, and that GST proceedings shall be determined independently.
Cause Title: Gopal Aromatic Private Limited v. State of Odisha and connected matters (Neutral Citation: 2026:OHC:68)
Appearances
Petitioners: Senior Advocates C.S. Vaidyanathan and Vivek Kohli, with Advocates Nalin Talwar, Manoj Gupta, Yeshi Rinchhen, Prashanta Kumar Nayak and Avijit Patnaik
Respondents: Additional Standing Counsel Gayatri Patra; Central Government Counsel Pratima Nayak