The Orissa High Court has upheld Odisha’s notification dated January 21, 2026 restricting the manufacture, storage, distribution and sale of chewing tobacco, holding that manufactured or processed chewing tobacco intended for human consumption falls within the definition of ‘food’ under Section 3(1)(j) of the Food Safety and Standards Act, 2006 (FSSA) and is consequently subject to Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011.
Justice Dr. Sanjeeb Kumar Panigrahi held that the expression ‘any substance intended for human consumption’ in Section 3(1)(j) has a broad statutory meaning and is not confined to substances consumed for nourishment or nutritional value. The Court noted that the FSSA itself includes articles such as chewing gum within the definition of food, indicating that swallowing or deriving nutritive value from a substance is not an essential requirement. On this reasoning, chewing tobacco intended to be chewed and consumed orally could not be excluded from the statutory definition.
The Court further held that tobacco used in the manufacture of chewing tobacco and remaining present in the final product constitutes an ‘ingredient’ within Section 3(1)(y), even if tobacco is the predominant component of the product. Consequently, Regulation 2.3.4, which prohibits the use of tobacco and nicotine as ingredients in food products, applies to manufactured chewing tobacco itself.
On the statutory source of the impugned notification, the Court distinguished between Section 30(2)(a), which permits prohibition of an article of food for a period not exceeding one year, and Section 30(2)(d), which empowers the Commissioner to take measures for efficient and uniform implementation of standards and other requirements under the FSSA. It held that the notification did not create a fresh prohibition under Section 30(2)(a), but operated under Section 30(2)(d) to enforce the prohibition already contained in Regulation 2.3.4.
The Court rejected the argument that COTPA, being a special legislation dealing with tobacco products, excluded the operation of the FSSA. While considering the Supreme Court’s decision in Godawat Pan Masala Products (P) Ltd. v. Union of India, (2004) 7 SCC 68, the Court noted that the present case arose under the subsequently enacted FSSA and its regulations. It held that COTPA and the FSSA can operate concurrently where their statutory fields are capable of reconciliation. The Court also considered the overriding effect provided by Section 89 of the FSSA in cases of inconsistency.
Rejecting the constitutional challenge, the Court held that the distinction between smokeless tobacco intended for oral consumption and smoking tobacco intended for combustion and inhalation was rational in the context of Regulation 2.3.4 and its public-health objective. The restriction on trade was therefore held to be capable of justification under Article 19(6). The Court also rejected the Article 21 challenge based on loss of livelihood, holding that the right to livelihood does not confer an absolute right to continue a particular trade contrary to a valid regulatory law.
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The Court also rejected the challenge based on Section 18 of the FSSA and principles of natural justice, holding that the Commissioner was not formulating a new substantive prohibition through the notification but implementing an existing prohibition under Regulation 2.3.4. Therefore, a separate pre-notification hearing or fresh risk assessment was not required. The Court, however, clarified that all procedural safeguards would have to be followed in subsequent individual proceedings such as licence cancellation, adjudication or prosecution.
The Court further clarified that interlocutory orders passed by the Supreme Court in similar proceedings concerning Delhi and Tamil Nadu did not constitute declarations of law under Article 141 and therefore did not govern the present challenge.
Accordingly, the Court dismissed the writ petitions and upheld Notification No. 2065/H&F.W. dated January 21, 2026, while expressly clarifying that the notification must be understood only as an implementation measure under Regulation 2.3.4 and cannot be construed as an independent or general prohibition on tobacco or tobacco products outside the statutory framework of the FSSA.
