Tobacco is classified as 'food' under the Food Safety and Standards Act, allowing for regulation despite claims of it being inherently harmful.

ORDER :

(N. ANAND VENKATESH, J.)

This writ petition has been filed challenging the Notification issued by the first respondent published in the Tamil Nadu Government Gazette dated 23.5.2024 in exercise of power conferred under Clause (i) to Sub-Section (2) of Section 92 read with Section 26 of the Food Safety and Standards Act, 2006 (hereinafter called the Act) and the consequential order passed by the second respondent dated 20.6.2024 and the communication dated 28.6.2024, which was confirmed by the third respondent by proceedings dated 16.7.2024 under Section 47 (4) of the Act read with the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011 (for short, the Regulations).

2. Heard the learned counsel on either side.

3. The case of the petitioner is as follows :

(i) The petitioner is in the business of sale of chewing tobacco. The grievance of the petitioner is that the respondents are treating raw tobacco as a banned food product and accordingly, it was sent for chemical analysis. On chemical analysis, it was reported that it contained nicotine to an extent of 0.47% and on that basis, the second respondent concluded that the petitioner’s chewing cut tobacco leaves are unsafe for human consumption and injurious to health and thereby placing reliance upon the impugned Notification published in the Government Gazette dated 24.5.2023, issued an intimation by treating the business of the petitioner as a food business operator under the Act, the relevant Rules and the relevant Regulations framed thereunder.

(ii) Aggrieved by that, the petitioner preferred an appeal before the third respondent, who, by proceedings dated 16.7.2024, dismissed the appeal and confirmed the report of the food analyst as legally maintainable and sustainable. As against the same, above writ petition has been filed.

4. The respondents have filed a counter affidavit wherein they have taken the following stand :

(i) On 30.5.2024, the second respondent inspected the shop of the petitioner and found the banned tobacco products, which were kept for selling. Pursuant to that, samples were drawn and sent to the Food Analysis Laboratory, Coimbatore. It gave a report dated 20.6.2024 and opined that the sample that was sent for analysis was unsafe and contained nicotine to an extent of 0.47%, which is injurious to health as per the Regulations and as per the Notification issued in the Government Gazette dated 23.5.2024 read with Section 26 (2)(iv) of the Act. The appeal that was filed by the petitioner before the third respondent also came to be rejected by order dated 16.7.2024.

(ii) The Government of Tamil Nadu has taken a conscious decision to prohibit the manufacture, storage, distribution and/or sale of gutkha, pan masala and other chewing tobacco products in the interest of public health. This was pursuant to the order passed by the Hon’ble Apex Court dated 03.4.2013 directing all the States to file affidavits on the total compliance of the ban imposed against the manufacture and sale of pan masala with tobacco and/or nicotine. The Notification is being issued year after year in compliance of the order passed by the Hon’ble Apex Court.

(iii) Tobacco, per se, comes within the meaning of the word ‘food’ as defined under Section 3 (j) of the Act. That apart, tobacco is also mixed with gutkha and pan masala and it has been sold. Thus, the respondents have justified the proceedings initiated against the