New Delhi
The Kerala High Court recently, while hearing a petition of KKR Foods, an FBO, observed that the ban imposed under FSS Rules, 2011, on the company’s product Nirapara Spices, was done in excess of the jurisdiction vested with the commissioner of food safety under the rules. The said product was found substandard by some state labs as it was adulterated with starch. But they did not find it unsafe for human consumption.
The court headed by Justice Muhamed Mustaque on October 13, 2015, dwelled upon aspects such as “Whether the commissioner of food safety was justified in issuing the order of prohibition?” and “If the commissioner is not justified in issuing order of prohibition, what is the extent of the power that could be exercised when spices powder or condiments are found as substandard?.”
Substandard, unsafe
Though the order appeared contradictory as presumably both substandard and unsafe seemed to be same. However, anything which was substandard might not necessarily be unsafe, like in this case, wherein it was found that the product was substandard but not unsafe to health.
According to Section 3(zx) of FSS Rules 2011, "substandard" as "An article of food shall be deemed to be substandard if it does not meet the specified standards but not so as to render the article of food unsafe."
The court observed, it is to be noted that FSS regulation prescribes standard for various food products. ”No doubt, for want of such standards, an action can be initiated for imposing penalty either under Section 51 or under Section 54 of the FSS Act. However, that does not extend a power to issue an order in the nature of prohibition.”
Health risk
Further the court observed that the commissioner acted invoking power under Section 34 of the FSS Act. This power can be invoked if there exists any health risk condition. The commissioner of food safety has power under Section 30(2)(a) to prohibit manufacture, storage, distribution or sale of any article of food in the interest of public health. The pre-requisite of exercise of this power is satisfaction, in respect of article of food that it is unsafe for human consumption.
As regard to second question, the court observed that "informed choice' is the right of choice in selecting a food product by a consumer. lf certain standards are to be required to be maintained in terms of the standards prescribed under the Additives Regulation 2011, those standards have to be achieved. 'Deception' of consumers has to be distinguished from 'sale of unsafe food products to the consumers. And the food authority has duty to inform the citizens, as the citizens have a correlated right to know about the standards of food they consume. The court had urged the commissioner to use methods like name shaming or publicity about the offence done by the manufacturer or even revoking the licence than ban.
Meanwhile, according to sources in Kerala food safety department, the order shall be challenged. “The order is quite contradictory. How can court allow the sale of substandard food item. We will challenge the court in a division bench,” says a senior official with the department.
With recent controversies like ban on Maggi noodles of Nestle, the arbitrary powers of food safety officials were under question. The court seems to have tried to clarify on the subject of how ban can be avoided, feels an industry insider.
The Kerala High Court recently, while hearing a petition of KKR Foods, an FBO, observed that the ban imposed under FSS Rules, 2011, on the company’s product Nirapara Spices, was done in excess of the jurisdiction vested with the commissioner of food safety under the rules. The said product was found substandard by some state labs as it was adulterated with starch. But they did not find it unsafe for human consumption.
The court headed by Justice Muhamed Mustaque on October 13, 2015, dwelled upon aspects such as “Whether the commissioner of food safety was justified in issuing the order of prohibition?” and “If the commissioner is not justified in issuing order of prohibition, what is the extent of the power that could be exercised when spices powder or condiments are found as substandard?.”
Substandard, unsafe
Though the order appeared contradictory as presumably both substandard and unsafe seemed to be same. However, anything which was substandard might not necessarily be unsafe, like in this case, wherein it was found that the product was substandard but not unsafe to health.
According to Section 3(zx) of FSS Rules 2011, "substandard" as "An article of food shall be deemed to be substandard if it does not meet the specified standards but not so as to render the article of food unsafe."
The court observed, it is to be noted that FSS regulation prescribes standard for various food products. ”No doubt, for want of such standards, an action can be initiated for imposing penalty either under Section 51 or under Section 54 of the FSS Act. However, that does not extend a power to issue an order in the nature of prohibition.”
Health risk
Further the court observed that the commissioner acted invoking power under Section 34 of the FSS Act. This power can be invoked if there exists any health risk condition. The commissioner of food safety has power under Section 30(2)(a) to prohibit manufacture, storage, distribution or sale of any article of food in the interest of public health. The pre-requisite of exercise of this power is satisfaction, in respect of article of food that it is unsafe for human consumption.
As regard to second question, the court observed that "informed choice' is the right of choice in selecting a food product by a consumer. lf certain standards are to be required to be maintained in terms of the standards prescribed under the Additives Regulation 2011, those standards have to be achieved. 'Deception' of consumers has to be distinguished from 'sale of unsafe food products to the consumers. And the food authority has duty to inform the citizens, as the citizens have a correlated right to know about the standards of food they consume. The court had urged the commissioner to use methods like name shaming or publicity about the offence done by the manufacturer or even revoking the licence than ban.
Meanwhile, according to sources in Kerala food safety department, the order shall be challenged. “The order is quite contradictory. How can court allow the sale of substandard food item. We will challenge the court in a division bench,” says a senior official with the department.
With recent controversies like ban on Maggi noodles of Nestle, the arbitrary powers of food safety officials were under question. The court seems to have tried to clarify on the subject of how ban can be avoided, feels an industry insider.
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