M/s Omkar Agency v. Food Safety & Standards Authority of India

In the Patna High Court, smokeless tobacco manufacturers challenged a Food Safety Commissioner order prohibiting the sale of zarda, pan masala and gutka under Section 30(a) of the Food Safety and Standards Act, 2006 (“Food Act”). The manufacturers alleged that the prohibition was not permissible as such products were permitted for sale under India’s omnibus tobacco control law, COTPA. The manufacturers also alleged that they were not food business operators under the Food Act and, therefore, were not required to submit to the Act’s requirements. The Court struck down the prohibition, observing, among other things, that:  (1) gutka and tobacco (generally), are not food as the Food Act does not prescribe standards for their manufacture, sale or distribution; (2) while pan masala is food, the Commissioner did not rely on objective evidence (which he/she must do under the Food Act) to issue the blanket prohibition on all brands of pan masala, whether or not they contain tobacco; (3) tobacco is not food and, therefore, cannot be regulated by the Food Act; and (4) since COTPA, which is a central law, permits the manufacture and production of tobacco and tobacco-based products, smokeless products cannot be banned altogether, and such a prohibition, therefore, amounts to excessive delegation of executive power.