Court dismisses writ petitions by tobacco manufacturers, holds Regulation 2.3.4 prohibiting tobacco as ingredient in food products applies to chewing tobacco; COTPA does not shield products from food safety regime
In a landmark ruling delivered on August 21, 2026, the Orissa High Court dismissed a batch of writ petitions challenging the Odisha government's notification banning the manufacture, processing, packaging, storage, transportation, distribution, and sale of all food products containing tobacco or nicotine in the State. Justice Dr. Sanjeeb K Panigrahi delivered the comprehensive judgment in W.P.(C) No. 6107 of 2026 and connected matters, upholding Notification No. 2065/H&F.W. dated January 21, 2026, issued by the Health and Family Welfare Department, Government of Odisha.
The lead petitioner, Gopal Aromatic Private Limited, a manufacturer of chewing tobacco under the brand name "GOPAL," along with other tobacco manufacturers, had challenged the notification arguing it was beyond the statutory framework of the Food Safety and Standards Act, 2006 (FSSA) and could not apply to chewing tobacco, which they contended was a "tobacco product" governed exclusively by the Cigarettes and Other Tobacco Products Act, 2003 (COTPA).
The Core Legal Questions
The Court framed four critical issues for determination: whether chewing tobacco falls within the definition of "food" under Section 3(1)(j) of the FSSA; whether Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 extends to chewing tobacco as a standalone product; whether the notification was validly issued under Section 30(2)(d) of the FSSA; and whether COTPA excludes the application of the FSSA to tobacco products.
Chewing Tobacco is "Food"
On the first and pivotal question, the Court 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. Justice Panigrahi observed that the statutory language — "any substance... which is intended for human consumption" — is far wider than the ordinary or nutritive understanding of food. The Court noted that Parliament's express inclusion of "chewing gum" within the definition demonstrates that swallowing or assimilation into the digestive system is not an indispensable requirement. "The circumstance that chewing tobacco is ordinarily chewed and thereafter discarded would, by itself, therefore not place it beyond the ambit of Section 3(1)(j)," the Court held, relying on the Supreme Court's observations in Pyarali K. Tejani v. Mahadeo Ramchandra Dange (1974) and Godawat Pan Masala Products v. Union of India (2004).
The Court rejected the petitioners' reliance on ITC Ltd. v. Agricultural Produce Market Committee (2002), where the Supreme Court had observed that "tobacco is admittedly not a foodstuff," clarifying that this observation was made in the context of constitutional distribution of legislative powers under the Seventh Schedule and not while construing the FSSA definition.
Regulation 2.3.4 Applies to Chewing Tobacco Products
On whether Regulation 2.3.4 — which provides that tobacco and nicotine "shall not be used as ingredients in any food products" — extends to chewing tobacco as a product itself, the Court answered in the affirmative. Reading Section 3(1)(y), which defines "ingredient" as "any substance... used in the manufacture or preparation of food and present in the final product," the Court held that the definition prescribes no quantitative threshold and does not require an ingredient to be a minor or subsidiary component. "The fact that tobacco constitutes the predominant component does not take it outside the statutory definition of 'ingredient,'" Justice Panigrahi ruled.
Notification Validly Issued Under Section 30(2)(d)
Addressing the source of power, the Court distinguished between Section 30(2)(a), which permits temporary prohibitions for up to one year, and Section 30(2)(d), which concerns implementation of existing standards and requirements. Since the prohibition originates in Regulation 2.3.4 itself and the notification merely seeks its enforcement, the Court held the Commissioner acted within the scope of Section 30(2)(d). "The one-year period prescribed in Section 30(2)(a) governs a prohibition imposed in exercise of the power conferred by that clause and cannot be read as limiting the continued operation of Regulation 2.3.4 itself," the judgment stated.
COTPA and FSSA Can Operate Simultaneously
On the critical question of whether COTPA excludes the FSSA's application, the Court adopted a harmonious construction. While acknowledging that COTPA is a comprehensive special enactment governing tobacco products, the Court held that the two statutes operate in different though overlapping statutory fields. Invoking Section 89 of the FSSA, which gives overriding effect to FSSA provisions over inconsistent laws, and relying on the Supreme Court's interpretation in Ram Nath v. State of Uttar Pradesh (2024), the Court held that COTPA continues to govern tobacco products in matters entrusted to it, while the FSSA operates where a product falls within its statutory field.
Constitutional Challenges Rejected
The Court systematically rejected all constitutional challenges. On Article 14, it held the distinction between smokeless and smoking tobacco is rational, as cigarettes are intended for combustion and inhalation while chewing tobacco is intended for oral consumption, placing them in different categories under the food safety framework. On Article 19(1)(g), the Court found the restriction reasonable under Article 19(6), noting the Commissioner cannot prescribe permissible quantities where Regulation 2.3.4 itself contemplates a complete prohibition. On Article 21, the Court held that the right to livelihood does not confer an absolute entitlement to continue a particular trade irrespective of a valid regulatory law.
The Court also rejected challenges based on non-compliance with Section 18 of the FSSA and principles of natural justice, holding that since the Commissioner was implementing an existing prohibition rather than formulating a new one, a separate pre-notification hearing was not required.
Clarifications and Caveats
While dismissing the petitions, the Court issued important clarifications: the notification must be understood strictly as implementing Regulation 2.3.4 and not as an independent prohibition on tobacco products beyond the FSSA's scope. GST proceedings initiated pursuant to the notification must be determined independently, with all objections available to the petitioners left open. Any action taken pursuant to the notification must conform to applicable law, including procedural safeguards for individual actions such as licence cancellation or prosecution.
The case was argued by Senior Advocates Mr. C.S. Vaidyanathan and Mr. Vivek Kohli for the petitioners, while Ms. Gayatri Patra, Additional Standing Counsel, represented the State of Odisha.
Statutory provision(s):
Section 3(1)(j) of the Food Safety and Standards Act, 2006; Section 3(1)(y) of the Food Safety and Standards Act, 2006; Section 18 of the Food Safety and Standards Act, 2006
Gopal Aromatic Private Limited v. State of Odisha, (Orissa)...: Law Finder Doc id # 2969651
