The recent decision by Patna High Court quashing Bihar state government’s notification prohibiting manufacture, storage, distribution, transportation and sale of gutkha and pan masala containing tobacco or nicotine has brought the Food Safety and Standards Act, 2006, and the Cigarettes and Other Tobacco Products Act, 2003, in conflict.
A division bench of the High Court gave the judgment after hearing petitions challenging the validity of notification issued by the food safety commissioner last year on November 6, 2015. This has also raised questions on the FSS Act’s relevance with regard to such products.
The petition was filed by Prabhat Zarda Factory India Pvt. Ltd and others in which they challenged the notification banning manufacture, storage, distribution, transportation and sale of any type of tobacco and areca nut (supari) in the form of pan masala, zarda, scented supari and so on.
Clarifying on the subject, a senior official with the Bihar food safety department, said, "The High Court has said that whichever decisions that are to be taken with regards to the ban on gutkha will be taken by the Central government and not by the FSSAI or the state FDA."
Elaborating further, he said, "The provisions with FSSA state that the ban can be imposed for at the most one year by the commissioner and after the completion of the year, the ban can be extended for another one year. There is not a permanent solution to this ban. State government should inculcate reforms in this regard for statewide ban on gutkha for a permanent solution and to make our framework more strong."
He informed, "COTPA is a regulation which is just a rule-book which cannot over ride the FSS Act."
Meanwhile, offering a wider perspective, Seema Gupta, director, tobacco control and RCH, Voluntary Health Association of India (VHAI), said, “COTPA 2003 prohibits its sale within 100 yard of educational institutions and to children below the age of 18 years. FSSA regulation 2.3.4 prohibits the use of tobacco in food items.”
“The two Acts work in isolation. One regulates (COTPA) and the other bans (FSSA). Even if there is a conflict, the Food Act will have a primacy in view of Section 89 of the FSS Act,” she added.
On a concluding note, Gupta commented, “Gutka (including pan masala with tobacco) therefore stands banned. Since, Supreme Court has issued an order of year April 3, 2013, which directs all states to implement the ban, therefore the Patna HC order is of no significance as far as gutkha is concerned.”
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