MUMBAI: Gutka manufacturers have moved Bombay high court to challenge the state government's ban on gutka and paan masala. Around half a dozen petitions will come up before the HC on Monday , questioning the constitutional validity of the barely 10-day old notification issued by the government.
The petitions insist gutka cannot be treated and regulated as "food" as it has "no nutritional value" and highlight the "discriminatory nature" of the ban that has brought their business to a "complete halt".
Dhariwal Industries and Ghodawat Pan Masala Products , two flavoured-tobacco majors in the state , are among the petitioners. They want the July 19 notification and the two regulations under the Food Safety and Standards Act of 2006 , based on which the state issued the ban , set aside as unconstitutional and contrary to a 2004 Supreme Court judgment which ruled against a similar ban. The manufacturers also want the court to order the state to stop raiding their vendors as an interim measure. "Areca nut growersdepend on the gutka and paan masala industry and the ban will cause severe harm to farmers," they argued.
Maharashtra issued the ban under the Food Safety and Standards Act on the grounds that presence of magnesium carbonate in paan masala containing tobacco is injurious to health. The manufacturers' main argument appears to be that the "state exercising delegated powersunder theFSS Act 2006, which is a general Act, can't prohibit the mixture of tobacco with paan masala when there exists a special central law, the Tobacco Act of 2003, to deal with tobacco products." Gutka should be treated as a tobacco product and not food merely because it is consumed orally, they say, but add it has only 6% tobacco. "Food connotes to all that is eaten for taste and nourishment but not for intoxication or pleasure ... gutka is consumed for pleasure," says a petition.
They say the ban is discriminatory as "magnesium carbonate has been permitted in table salt, onion powder, garlic powder, fruit powder, soup powder, bubblegum, chewing gum, instant mixes, etc." The manufacturers also complained that the "pure or raw tobacco industry has been exempted".
Profit vs public health?
The manufacturers' arguments
All items consumed orally are not "food", for instance medicine and narcotics, the petition says, pointing out special laws that regulate these drugs
Gutka is a tobacco product and must be governed only by the Tobacco Act, not the Food Safety and Standards Act
Past attempts to ban gutka
The state issued bans in 2002 and then in 2008, but encountered legal roadblocks
In 2010 the state government banned sale of gutka within 100 meters of educational institutions
The present ban is under the Food Safety and Standards Act brought into effect last year
Ban in other states
Kerala, Madhya Pradesh, Goa and Bihar have already banned the sale of gutka
Rule relied on by the govt to notify the ban
Regulation 2.3.4 of the Food Safety Standards Prohibition and Restrictions on Sales) Regulations, 2011 prohibits sale of products that contain any substance injurious to health and prohibits tobacco and nicotine as ingredients in any food products Regulation 3.1.7 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, restricts use of anticaking agents like carbonates of calcium and magnesium in foods except where specifically allowed like in table salt, onion powder, fruit powder and soup powder, but not more than 2%.
The petitions insist gutka cannot be treated and regulated as "food" as it has "no nutritional value" and highlight the "discriminatory nature" of the ban that has brought their business to a "complete halt".
Dhariwal Industries and Ghodawat Pan Masala Products , two flavoured-tobacco majors in the state , are among the petitioners. They want the July 19 notification and the two regulations under the Food Safety and Standards Act of 2006 , based on which the state issued the ban , set aside as unconstitutional and contrary to a 2004 Supreme Court judgment which ruled against a similar ban. The manufacturers also want the court to order the state to stop raiding their vendors as an interim measure. "Areca nut growersdepend on the gutka and paan masala industry and the ban will cause severe harm to farmers," they argued.
Maharashtra issued the ban under the Food Safety and Standards Act on the grounds that presence of magnesium carbonate in paan masala containing tobacco is injurious to health. The manufacturers' main argument appears to be that the "state exercising delegated powersunder theFSS Act 2006, which is a general Act, can't prohibit the mixture of tobacco with paan masala when there exists a special central law, the Tobacco Act of 2003, to deal with tobacco products." Gutka should be treated as a tobacco product and not food merely because it is consumed orally, they say, but add it has only 6% tobacco. "Food connotes to all that is eaten for taste and nourishment but not for intoxication or pleasure ... gutka is consumed for pleasure," says a petition.
They say the ban is discriminatory as "magnesium carbonate has been permitted in table salt, onion powder, garlic powder, fruit powder, soup powder, bubblegum, chewing gum, instant mixes, etc." The manufacturers also complained that the "pure or raw tobacco industry has been exempted".
Profit vs public health?
The manufacturers' arguments
All items consumed orally are not "food", for instance medicine and narcotics, the petition says, pointing out special laws that regulate these drugs
Gutka is a tobacco product and must be governed only by the Tobacco Act, not the Food Safety and Standards Act
Past attempts to ban gutka
The state issued bans in 2002 and then in 2008, but encountered legal roadblocks
In 2010 the state government banned sale of gutka within 100 meters of educational institutions
The present ban is under the Food Safety and Standards Act brought into effect last year
Ban in other states
Kerala, Madhya Pradesh, Goa and Bihar have already banned the sale of gutka
Rule relied on by the govt to notify the ban
Regulation 2.3.4 of the Food Safety Standards Prohibition and Restrictions on Sales) Regulations, 2011 prohibits sale of products that contain any substance injurious to health and prohibits tobacco and nicotine as ingredients in any food products Regulation 3.1.7 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, restricts use of anticaking agents like carbonates of calcium and magnesium in foods except where specifically allowed like in table salt, onion powder, fruit powder and soup powder, but not more than 2%.
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