The Orissa High Court has held that 'chewing tobacco' is a 'food' under the meaning of Section 3(1)(j) of the Food Safety and Standards Act, 2006 (the 'FSS Act') and as a consequence, it has also upheld a notification of the State Government prohibiting the manufacture, processing, packaging, storage, transportation, distribution or sale of all food products containing tobacco or nicotine. [2026 LiveLaw (Ori) 101]

While dispelling the contentions of the petitioners-companies regarding 'right to livelihood' under Article 21 of the Constitution, the Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed–

“The right to livelihood has been recognised as an integral facet of the right to life under Article 21. That right, however, does not confer an absolute entitlement to continue a particular trade or business irrespective of a valid regulatory law. In the present case, having found that the impugned measure is authorised by the FSSA and that the restriction upon the trade satisfies Article 19(6), the consequential impact upon livelihood does not, in the absence of any distinct infirmity under Article 21, furnish an independent ground for invalidating the Notification.”

The Health and Family Welfare Department, Government of Odisha issued a notification dated 21.01.2026, prohibiting the manufacture, processing, packaging, storage, transportation, distribution or sale of all food products containing tobacco or nicotine as ingredients in the State of Odisha. The prohibition was extended to food products, whether chewable or otherwise, which are flavoured or scented or mixed with additives, as well as products going by the name or form of gutkha, pan masala, flavoured or scented food products or chewable food products, by whatsoever name called.

The notification referred to Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 (the '2011 Regulations'), which prohibits the use of tobacco and nicotine as ingredients in any food product. It also made a reference to the order of the Supreme Court in Central Arecanut Marketing Corporation & Ors. v. Union of India (2016) and the clarification dated 17.08.2022 issued by the Food Safety and Standards Authority of India (FSSAI) stating that tobacco has not been excluded from the definition of 'food' under Section 3(1)(j) of the FSS Act.

The petitioners, who are engaged in the business of manufacturing and selling chewing tobacco, filed this batch of writ petitions upon being aggrieved by the issuance of the aforesaid notification. Upon consideration of the rival contentions, the Court framed primarily the following four issues for decision.

1. Whether chewing tobacco falls within the statutory ambit of “food” under Section 3(1)(j) of the FSS Act?
2. Whether Regulation 2.3.4 of the 2011 Regulations is confined to the use of tobacco or nicotine as an ingredient in another food product or extends to chewing tobacco as a product itself?
3. Whether the impugned notification, which invokes Section 30(2)(d) of the FSS Act, is within the scope of the power conferred under that provision?
4. Whether the regulation of chewing tobacco under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 ('COTPA') excludes or restricts the application of the FSS Act to such products?

The petitioners, being led by Senior Advocate CS Vaidyanathan, argued that the expression 'food', as understood ordinarily, refers to a substance consumed for nourishment, growth, repair or maintenance of the human body and which possesses nutritive, restitutive or promotive qualities. Thus, they argued that chewing tobacco cannot be held as a 'food' under Section 3(1)(j) of the FSS Act. Examining the language employed in such provision, the Court held as follows –

“The statutory language employed in Section 3(1)(j), however, is wider. The controlling words are “any substance… which is intended for human consumption”. The Legislature has not qualified those words by stipulating that, in order to constitute “food”, the substance must possess nutritive value or must be consumed for nourishment, growth or maintenance of the human body. To import such a requirement into the provision would be to introduce a limitation which the Legislature itself has not enacted.”

The Court further held the legislature has expressly identified the articles which are to remain outside the definition of “food”, but tobacco does not find place among those exclusions. Therefore, it held that tobacco can be considered as a “food” under Section 3(1)(j).

So far as the second question was concerned, the Regulation 2.3.4 provided that tobacco and nicotine shall not be used as “ingredients in any food products”. The petitioners, therefore, contended that the expression “as ingredients in any food products” essentially indicates the existence of a food product distinct from tobacco or nicotine, into which tobacco or nicotine is introduced as an ingredient. Hence, it was argued that the Regulation does not prohibit tobacco marketed and sold as a product in itself, rather it prohibits the addition of tobacco or nicotine to another food product.

Rejecting such argument, Justice Panigrahi held–

“It [Regulation 2.3.4.] declares that tobacco and nicotine “shall not” be used as ingredients in any food products and does not distinguish between a product in which tobacco constitutes the predominant component and one in which tobacco is present in a lesser proportion. In the case of manufactured chewing tobacco, where tobacco is used in the manufacture or preparation of the product and remains present in the final product, the fact that tobacco constitutes the predominant component does not take it outside the statutory definition of “ingredient” in Section 3(1)(y).”

Moreover, the petitioners argued that Section 30(2)(d) of the FSS Act does not confer an independent power upon the Commissioner to prohibit the manufacture, storage, distribution or sale of an article of food. Such power, they argued, is specifically conferred by Section 30(2)(a), which permits a prohibition in the interest of public health for a period not exceeding one year, and the statutory limitation contained in clause (a) cannot be sidestepped by recourse to clause (d).

However, the Court nixed such contention on the premise that the impugned notification was issued by the Department in order to enforce the prohibition prescribed by Regulation 2.3.4. of the 2011 Regulations. The Commissioner, the Court held, has not independently issued any notification and thus, there was no requirement to issue the same under Section 30(2)(a).

“In the present case, the Notification neither seeks to substitute Regulation 2.3.4 nor seeks to create a prohibition independent of that Regulation. Its operation is founded upon the prohibition already contained therein. The exercise undertaken by the Commissioner is one of implementing an existing regulatory prohibition rather than imposing a fresh prohibition under Section 30(2)(a).”

Regarding the effect of interplay between the COTPA and the FSS Act, Justice Panigrahi was of the view that the application of the COTPA does not per se exclude the operation of the FSS Act over tobacco products as long as they can make way for each other and co-exist cooperatively. Thus, the Judge remarked–

“[The] COTPA and the FSSA are both enactments of Parliament, and the impugned Notification is an executive measure issued under the latter enactment. The impugned measure also does not amount to an exercise of control over the tobacco industry. It seeks to enforce a food-safety prohibition upon the use of tobacco or nicotine as ingredients in products falling within the FSSA. The mere fact that such regulation may incidentally affect a product of a controlled industry does not make it a measure concerning control of the tobacco industry.”

The petitioners, apart from challenging the notification for being violative of Article 21, also impugned the same for being detrimental to their rights provided under Article 19(1)(g), i.e. right to carry on a trade. The Court, however, did not find any substance in the argument and accordingly, held–

“The reliance placed upon the Constituent Assembly Debates concerning Article 47 does not alter this conclusion. The fact that a proposal specifically referring to tobacco was not accepted cannot be understood to mean that the Parliament is precluded from regulating tobacco-containing products in the interest of public health. Article 47 may support such regulation, but the source of the power must nevertheless be found in the statute. Accordingly, the challenge under Article 19(1)(g) read with Article 19(6) cannot be sustained.”

Resultantly, the writ petition was disposed of upholding the impugned notification so far as it sought to enforce the Regulation 2.3.4 of the 2011 Regulations.

Case Title: Gopal Aromatic Private Limited, Cuttack v. State of Odisha [along with batch of cases]

Case No: W.P.(C) Nos. 6107, 8849, 11468, 11505 & 11510 of 2026

Date of Judgment: August 21, 2026

Counsel for the Petitioners: Mr. C.S. Vaidyanathan & Mr. Vivek Kohli, Sr. Advocates; Mr. Nalin Talwar, Mr. Manoj Gupta, Ms. Yeshi Rinchhen, Mr. Prashanta Kumar Nayak & Mr. Avijit Patnaik, Advocates

Counsel for the Opposite Party: Ms. Gayatri Patra, Addl. Standing Counsel & Ms. Pratima Nayak, Central Govt Counsel

Citation: 2026 LiveLaw (Ori) 101

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