Chewing tobacco covered as “food” under food-safety law; Odisha HC upholds prohibition under Regulation 2.3.4, clarifies it is not a blanket tobacco ban

The petitioners, including Gopal Aromatic Private Limited, manufacture and sell chewing tobacco, including flavoured, scented or additive-containing products.

They challenged Notification No.2065/H&F.W. dated 21 January 2026 issued by the Health and Family Welfare Department, Odisha, which prohibited the manufacture, processing, packaging, storage, transportation, distribution and sale of food products containing tobacco or nicotine, including products described as gutkha, pan masala and flavoured or scented chewable products.

During the ensuing proceedings, GST authorities referred to the Notification and issued communications and show-cause notices concerning cancellation of GST registrations.

Whether chewing tobacco falls within the statutory definition of “food” under Section 3(1)(j) of the FSSA?

Whether Regulation 2.3.4 applies to chewing tobacco as an independent product, or is confined to tobacco or nicotine used as an ingredient in another food product?

Whether the Notification issued by invoking Section 30(2)(d) of the FSSA was within the statutory power of the Commissioner of Food Safety, and whether the one-year limitation under Section 30(2)(a) applied?

Whether regulation of chewing tobacco under COTPA excluded or restricted the application of the FSSA and Regulation 2.3.4?

Whether the Notification violated Articles 14, 19(1)(g) and 21 of the Constitution, or was vitiated by non-compliance with Section 18 of the FSSA and principles of natural justice?

Section 3(1)(j) of the FSSA defines “food” broadly as any substance intended for human consumption, and Section 3(1)(y) defines an “ingredient” as any substance used in the manufacture or preparation of food and present in the final product.

Regulation 2.3.4 prohibits tobacco and nicotine from being used as ingredients in any food product.

Section 30(2)(a) permits a public-health prohibition on an article of food for a period not exceeding one year, whereas Section 30(2)(d) authorises measures for efficient and uniform implementation of standards and other statutory requirements.

Section 89 of the FSSA gives the Act overriding effect over inconsistent laws, although concurrent operation with COTPA is preferred where reconciliation is possible.

The Court relied on Pyarali K. Tejani v. Mahadeo Ramchandra Dange, Godawat Pan Masala Products (P) Ltd. v. Union of India and State of T.N. v. R. Krishnamurthy for a broad statutory understanding of “food”.

The Court also applied Ram Nath v. State of Uttar Pradesh on the overriding effect of Section 89.

The Court held that the expression “any substance intended for human consumption” in Section 3(1)(j) was wider than the ordinary nutritional meaning of food.

The express inclusion of chewing gum demonstrated that swallowing an article or deriving nutritive value from it was not essential; accordingly, chewing tobacco intended to be chewed and consumed orally was not excluded from “food”.

Applying Section 3(1)(y), the Court reasoned that tobacco used in manufacturing chewing tobacco and remaining in the final product was an “ingredient”, even if it constituted the predominant component.

Regulation 2.3.4 therefore applied to manufactured chewing tobacco itself.

The Notification did not create a fresh prohibition under Section 30(2)(a); it implemented the pre-existing prohibition in Regulation 2.3.4 through Section 30(2)(d).

COTPA and the FSSA were capable of substantial concurrent operation: COTPA regulates tobacco-control matters, while the FSSA governs food safety where its statutory conditions are met.

The distinction between smokeless tobacco intended for oral consumption and smoking products intended for combustion and inhalation was held rational for purposes of Regulation 2.3.4, and the public-health objective supported the restriction under Articles 14 and 19(6).

Since the Notification implemented an existing statutory regulation rather than formulated a new substantive prohibition, a separate pre-notification hearing or fresh risk assessment was not required, without prejudice to procedural safeguards in subsequent individual proceedings.

It held that manufactured or processed chewing tobacco intended for human consumption falls within the FSSA definition of “food” and is subject to Regulation 2.3.4 as a product containing tobacco used as an ingredient.

However, the Notification was expressly confined to implementing Regulation 2.3.4 and could not be construed as an independent or general prohibition on tobacco or tobacco products dehors the FSSA.

GST proceedings were left to be decided independently under the applicable GST laws, with all objections of the petitioners kept open; any interim order stood vacated.