The main argument against such bans is that Gutkha is governed by the Cigarettes and other Tobacco Products Act (COTPA) and can hence not be banned under the FSSA. The COTPA regulates manufacture of such products and being a specific legislation directed at tobacco products should prevail over any other legislation. This argument falls as firstly, there is no conflict between the two Acts because the COTPA nowhere expressly states that products under the Act cannot be banned and secondly because the FSSA itself is a specific legislation and even if there is a conflict between the two specific legislations, the FSSA, having been passed later, will prevail. The orders of bans, in the states where such orders have been passed have been challenged in courts and the bans have been upheld using the same reasoning.

Another issue that has sprung up is that while gutkha and related products, which have a tobacco content of 7-8% are being banned, nothing is being done to prevent usage of cigarettes and other tobacco products that are 'smoked'.[iii] While this is true, we must only look at the bans individually and not compare them to other products. The bans have been brought about because gutkha is a food product and adding tobacco to food products is considered unsafe under the new Act. Cigarettes do not fall under the definition of food under the Act and the decision on their safety and regulation must be left to the Parliament.

It is hence clear that the FSSA prohibits the sale of gutkha and other 'smokeless' tobacco products. The Act also directs the state government to comply with the regulations passed. In this light, all the remaining states need to pass orders banning gutkha and paan masala as soon as possible.

Gutkha makes have also developed a new strategy to sell gutkha wherein the chewing tobacco and the ‘masala are sold separately, making the sale legal and giving the customer gutkha when mixed.[iv] If the ban has to be effectively implemented, chewing gutkha must also be brought under the ambit of the Act and its sale must be regulated or banned.