New Delhi: The persistent effort of India’s smokeless tobacco industry to skirt around the decade-old ban and re-introduce gutka, pan masala, khaini, zarda and other products is showing results. Two judgments — by the Delhi and Madras High Courts — in the last six months lifted the states’ ban on the sale of chewing tobacco, calling the prohibitions unjustified and illegal. The Telangana High Court asked the police not to raid, seize, or stop the sale and manufacture of chewing tobacco in September 2022.
What began as a huge push against carcinogenic chewing tobacco products has now been dramatically overturned in Indian courts.
The bans are currently under India’s food law. The Delhi High Court bought the argument of the petitioners’ (manufacturers, traders, distributors) that the products should be regulated under the Cigarette and Other Tobacco Products Act (COTPA) 2003. The Madras High Court, however, disagreed on this aspect.
Is smokeless tobacco food or tobacco? Do state food commissioners have the power to indefinitely renew an annual ban to keep a product out of the markets?
Chewing or smokeless tobacco was first banned by Maharashtra in 2002. Ten years later, state food commissioners followed suit. These bans were renewed annually, which kept the cheap, deadly tobacco sachets off the shelves.
But Delhi and Madras high courts’ decision to lift the ban has left public health experts worried. They fear that if other courts uphold the same verdict, markets will get flooded with chewing tobacco and pan masala again. Easy availability will drive the number of tobacco consumers up. A direct consequence of higher consumption of smokeless tobacco would be increased disease burden, especially of head and neck cancers (throat, nose, mouth, sinuses, larynx), they say.
“The ban was enforced amid a lot of pressure. The files did not move and the (smokeless) industry lobby tried to influence officers. But some states ensured that chewing tobacco was out of reach of consumers. If the bans are lifted, whatever benefits we have seen in the last few years will simply wash away,” said a former Jharkhand food commissioner who did not want to be named.
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FSSAI’s shifting stands
The regulatory body Food Safety and Standards Authority of India (FSSAI), under the health ministry, has asserted that chewing tobacco, gutka, and pan masala are foods as per the Food Safety and Standards Act 2006. This view is also upheld by many high courts and the Supreme Court. But the smokeless tobacco industry argues that chewing tobacco is listed in COTPA and so its products must be regulated as tobacco items.
While food items containing tobacco and nicotine can be banned under FSSA, tobacco can only be regulated under COTPA.
Meanwhile, the shifting stand of the FSSAI has also become a cause for concern.
In the past, the FSSAI wrote to food commissioners asking them to impose the ban on gutka, pan masala (containing tobacco or nicotine), and other flavoured and processed chewing tobacco like zarda and khaini. States such as Bihar and Jharkhand even banned tobacco-less pan masala.
But the FSSAI’s recent letter spoke against taking any coercive action.
“The matter is presently under consideration of an expert committee constituted under the Ministry of Health and Family Welfare. Hence, it is directed to withhold any further action regarding analysis/enforcement of tobacco or chewing tobacco till further orders in the matter,” FSSAI wrote to state food commissioners in a letter dated 9 January 2023. ThePrint has accessed the letter. This was a follow-up to an August 2022 letter in which the FSSAI advised all laboratories to analyse samples of chewing tobacco products.
The states, however, are determined to fight the bans in the courts. While the Delhi government has already filed an appeal, the Tamil Nadu government is planning to move the Supreme Court and also considering bringing a new law to keep the ban.
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Tobacco or food?
Ever since the 2011 FSSAI letter, followed by states banning smokeless tobacco use from 2012 onwards, courts have become a battleground for the smokeless tobacco industry and the government. Numerous companies have flooded high courts to challenge the bans.
They argue that because their products aren’t food, state food commissioners cannot ban but only regulate them under the tobacco law.
“That COTPA occupies the entire field relating to tobacco products cannot be disputed. Hence, the source of all actions qua regulation/prohibition of any form of tobacco shall be governed by the COTPA,” say the companies in the Delhi High Court.
The Delhi High Court verdict is on cumulative 50 cases filed by the industry since 2015. Their argument is based on the premise that food provides nutrition and leads to growth while their products offer none. They also refer to international definitions of food given by the Food and Agriculture Organization and the European Commission, which explicitly state that tobacco is not food.
“The analogy in the definition of food is leading to complex issues… which further leads to unnecessary and unwanted litigation,” wrote Sanjay Bechan, representative of Smokeless Tobacco Federation (India), an association of smokeless tobacco production companies, to the Committee on Petitions in 2016.
The colourful four-rupee sachets dangling from local shops are loosely classified as chewing tobacco. They sell as cheap intoxicants for the masses. Companies claim they add exotic ingredients such as cardamom, clove, and saffron, among others. Processed tobacco, flavours, fragrances, colouring agents, and other additives make chewing tobacco palatable.
But state governments have maintained that smokeless tobacco products are food. They say that the definition of food under FSSA includes processed, partially processed, or unprocessed substances that are intended for human consumption.
FSSAI previously instructed state food commissioners to use Section 2.3.4 of the 2011 regulation of FSSA to ban gutka and pan masala with tobacco and flavoured and processed chewing tobacco. The regulation says that tobacco and nicotine cannot be added to any food items.
Before COTPA and FSSA were introduced, smokeless tobacco companies were regulated by the Prevention of Food Adulteration (PFA) Act 1954.
“Under the PFA Act, smokeless tobacco-producing companies had to put warning labels on the packets, and they received licenses to manufacture and sell their products. This is important to note because now, the same companies are going to courts and saying that their products are not food to escape the ban,” says Ranjit Singh, an advocate at the Supreme Court.
The smokeless tobacco industry also argues that the annual bans are enforced through emergency provisions under Section 30 of the FSSA. The states, they say, are misusing the law to keep a product permanently prohibited.
“There is no need for the states to notify the ban annually. State food safety officers are supposed to just enforce rule 2.3.4 under FSSA, which says that unsafe tobacco and nicotine cannot be added to foods, and prosecute the violators,” says Amit Yadav, senior technical advisor at the International Union Against Tuberculosis and Lung Disease. He maintains that state food commissioners are well within their rights to ensure that smokeless tobacco products are not sold.
ThePrint reached out to Bechan who refused to comment as both Madras and Delhi High Court cases are subjudice and the final report by the 2016 parliamentary committee on petitions is not out yet.
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Demand for ban and its impact
In 2011, then-Union health minister Ghulam Nabi Azad’s statement in the Lok Sabha on what constitutes smokeless tobacco concretised the support that public health experts needed to highlight the destructive potential of chewing tobacco. Azad elaborated that based on government laboratory test results, smokeless tobacco such as gutka or khaini has a concoction of 3,095 chemicals, 28 out of which are proven carcinogens.
But the momentum to block the sachet’s reach to the public had started building much before. Hospitals were flooded with patients diagnosed with oral cancer, and doctors identified smokeless tobacco as the single biggest factor behind it. Heads of departments started writing to the health ministry to take action. Cases were also filed demanding a ban on smokeless tobacco products.
The 2009 Global Adult Tobacco Survey (GATS) was a shocker for the Indian government. It showed that more than cigarettes and beedis, people were hooked to smokeless tobacco. Nearly 26 per cent of adults used smokeless tobacco; 14 per cent were tobacco smokers. Smokeless tobacco use was also high among women at 18.4 per cent compared to smoking at 3 per cent. About 12 per cent of men and 27 per cent of women started using smokeless tobacco before they had turned 15 years old.
That brought a shift in the government’s tobacco control programme. From curbing smoking, the focus shifted to controlling the use of smokeless tobacco.
Meanwhile, on the order of the Rajasthan High Court in the Ankur Gutka case, a committee of experts constituted by the health ministry submitted a detailed report on the harmful effects of smokeless tobacco in 2012. It recommended a complete ban on all forms of smokeless tobacco.
A year later, the FSSA regulation became the government’s biggest tool to put the deadly smokeless tobacco out of the public’s reach. Food commissioners started raiding, seizing stocks of tobacco packets, and booking the sellers and manufacturers.
The bans hit the industry hard.
“Over-the-counter sale of gutka and chewing tobacco stopped. Although it was being sold covertly, it became hard for people to buy it. And within years of this continuous ban, the drop in numbers of smokeless tobacco was visible,” said Deepak Mishra, executive director, Socio Economic & Educational Development Society (SEEDS), a non-profit working on tobacco control in Bihar and Jharkhand.
Bihar has the highest consumers of smokeless tobacco — almost 49 per cent of the population were smokeless tobacco users in 2009-10, says the GATS report. In the next six years, the percentage had dropped by more than half to 23.5 per cent.
In some states, multiple state food departments also started testing pan masala (without tobacco) proactively from 2012 and found magnesium carbonate and nicotine in them. All 15 samples randomly tested in Bihar in 2019 consisted of magnesium carbonate. Seven also had nicotine. The following year, 38 samples of 15 brands were collected from all the districts of Bihar and the tests showed the same results. All those brands were banned. Similarly, in Jharkhand, in 2020, more than 80 samples were collected and 11 brands were banned.
The industry, meanwhile, learned to sidestep the ban. Companies reportedly started selling flavoured pan masala and pure tobacco in two separate packets, which were mixed and eaten together. ThePrint had earlier reported how the companies started aggressive surrogate advertising featuring top celebrities.
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Way forward
While several courts in the past have upheld the bans, the Delhi and Madras High Court judgments are deeply disturbing to public health experts. If the bans are lifted, then the health epidemic is imminent, they say.
“The industry will refer to these judgments in other courts to get the ban lifted from across the country. A result of this will be that gutka, pan masala, and chewing tobacco will be back for sale and people will start consuming them again. Our efforts will become null and void,” says Bhavna Mukopadhyay, chief executive of Voluntary Health Association of India (VHAI), a nonprofit working on tobacco control.
What worries them is the silence of the FSSAI on the matter. Its January letter is the final nail in the coffin, experts say. Sources told ThePrint that pressure is mounting on the FSSAI to amend the definition of food under the FSSA to explicitly mention whether or not tobacco falls under it.
“More than 80 per cent of people in India are users of smokeless tobacco, but we have no comprehensive policy on it. The ban through food departments also seems to be getting out of reach now. The January letter has brought the morale down in the states,” says Mishra.
But until that happens, tweaking existing policies can ensure that the ban stays. And the lead on this will have to come from the Union health ministry, according to experts.
Yadav explains that while Section 30 of COTPA allows for tobacco products to be added to the Schedule, when read with the General Clauses Act 1987, products can be removed from it. “In the interest of public health, chewing tobacco, pan masala with tobacco and gutka should be removed from it,” he says.
The other way, suggests Singh, is that states introduce laws or amend existing public health laws and ban smokeless tobacco products. “The states will have to do what Goa did in 2005 – come up with their own law. Because ultimately, it is the states’ health expenditure [that will] go up,” he says.
In Tamil Nadu, the health minister has already announced that the government will introduce a new law banning smokeless tobacco. In the Delhi High Court, the hearing against the lifting of the ban is on.
ThePrint reached out to FSSAI and the health ministry but received no response.
(Edited by Humra Laeeq)