Cuttack: Orissa high court has referred a dispute over the govt’s ban on food products containing tobacco or nicotine back to the single-judge bench for clarification, particularly on whether the prohibition can be enforced as a blanket ban on tobacco products.A division bench of Chief Justice Harish Tandon and Justice Chittaranjan Dash on Monday disposed of a writ appeal filed by a Cuttack-based tobacco products manufacturer, expecting it to approach the single judge with a fresh petition seeking clarification on certain observations in the Aug 21 judgment.On Aug 21, Justice S K Panigrahi had dismissed a batch of petitions filed by companies manufacturing and selling chewing tobacco, upholding the state govt’s Jan 21 notification under the Food Safety and Standards Act (FSSA) and the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011.The petitioners had questioned the state’s authority to impose the prohibition under the central law.Justice Panigrahi had held that manufactured or processed chewing tobacco intended for human consumption falls within the definition of “food” under the FSSA. He had reasoned that tobacco does not cease to qualify as an ingredient merely because it forms the predominant component of the finished product.Justice Panigrahi had also explained that Regulation 2.3.4 prohibits tobacco and nicotine from being used as ingredients in food products, irrespective of whether tobacco constitutes the principal component or is present in a smaller proportion.The petitioners had argued that treating smokeless tobacco differently from cigarettes and beedis was arbitrary. Rejecting this contention,Justice Panigrahi observed that the regulation does not prohibit tobacco simpliciter (plain and simple), but prohibits its use as an ingredient in food products.At the same time, the Aug 21 judgment had clarified that the state notification must be understood as implementing Regulation 2.3.4 and the relevant provisions of the FSSA, rather than as an independent prohibition on tobacco or tobacco products beyond the statutory framework.It had further stated that any enforcement action must conform to applicable law and that GST proceedings should be decided independently, leaving the petitioners free to raise their objections.The fresh petition is expected to enable Justice Panigrahi to clarify the scope and implications of these observations, following which the legal position can be understood more precisely.
