The ban on supply and sale of chewing tobacco and tobacco products by invoking the provisions of the Food Safety and Standards (FSS) Act, 2006, has been struck down by the Kerala High Court.

The order was issued on December 20 on a writ petition filed by the dealers of tobacco products.

Justice A.M. Shaffique ordered that State and Commissioner of Food Safety had no right to take any action against tobacco or tobacco products as ‘chew tobacco’ was not a food product as defined under the FSS Act.

Allowing the petition, the court observed that tobacco and tobacco products were not food as defined under section 3(J) of the Act and it was not a food product as specified in the regulation 2.3.4 of the Food Safety and Standards (prohibition and restrictions on Sales) Regulation 2011.

Tobacco and tobacco products were to be manufactured and sold strictly in accordance with the provisions of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act 2003 (CTP) and rules framed thereunder.

The Food Safety regulation permitted the government to impose any restriction on any food products containing tobacco or nicotine. But it cannot prohibit the manufacture and sale of tobacco and tobacco products which cannot be considered as a food product, the judgement said.

The court observed that tobacco was not a food product and it might at the best be an intoxicant, which was not used for taste or nourishment, the court said. The petitioners had alleged that while transporting ‘chew tobacco’ from Delhi, the vehicles were intercepted at the Excise check-post at Walayar on June 2 this year on the allegation that the sale of pan masala was prohibited in the State. Though the dealers had represented that the ban on pan masala does not apply to chewing tobacco, the goods were not permitted to be brought to Kerala. The traders had also contended that banning the manufacture, storage, sale or distribution of gutkha and pan masala containing tobacco or ingredients invoking FSS, the prohibition does not apply to ‘chew tobacco.’

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