Adjudication under the Food Safety and Standards Act, 2006

“Legislation and adjudication must follow, and conform to, the progress of society,” so said Abraham Lincoln.

With the much-awaited transition from a plethora of food laws and manifold control points to the single-integrated Food Safety and Standards Act 2006 (hereinafter referred to as FSSA) regime, there has been a critical shift in the process of adjudication as well envisioning expeditious disposal of cases related to food safety issues.

Special courts, summary trials and appellate tribunal have been provided for. The Food Safety and Standards Rules, 2011, deals inter alia with adjudication proceedings, procedure for appeal to tribunal, qualification of the presiding officer of the tribunal etc.

Five judicial forums for trial / adjudication have been provided for under the FSSA and Rules thereunder - Adjudicating Officer, Food Safety Appellate Tribunal, Judicial Magistrate of the First Class / Metropolitan Magistrate, Special Court and the High Court.

Adjudicating Officer
Section 68 of the FSSA provides for the appointment of an Adjudicating Officer (not below the rank of Additional District Magistrate) by the state governments. He has powers of civil court and limited jurisdiction of criminal court too.

The Adjudicating Officer has been empowered to hold an inquiry for purpose of adjudicating the following offences - selling food not of the nature or substance or quality demanded (Sec 50), sub-standard food (Sec 51), misbranded food (Section 52), misleading advertisement (Sec 53), food containing extraneous matter (Sec 54), failure to comply with the directions of Food Safety Officer (Sec 55), unhygienic or unsanitary processing or manufacturing of food (Sec 56), food products possessing adulterant (Sec 57), contraventions for which no specific penalty is provided (Sec 58), subsequent offences (Sec 64), compensation in case injury of death of consumer (Sec 65), offences by companies (Sec 66) and penalty for contravention of provisions of this Act in case of import of articles of food to be in addition to penalties provided under any other Act (Sec 67).

For holding an inquiry for the purpose of adjudication as to whether any person has violated any of the provisions of FSSA as mentioned above of which the offence is alleged to have been committed, the Adjudicating Officer is mandated in the first instance to issue a notice indicating the nature of offence alleged to have been committed and the date of hearing (along with a report of the Food Analyst) to such person giving him an opportunity to make a representation in the matter within a specific period.

The Adjudicating Officer has been empowered to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any relevant document. The state government may also appoint a presenting officer from amongst the panel of advocates of the court of local jurisdiction, in an inquiry.

The Adjudicating Officer may impose appropriate penalty to violators after due consideration of the evidence produced.

Food Safety Appellate Tribunal
Section 70 of the FSSA provides for the constitution of one or more Food Safety Appellate Tribunal(s) by the state government to hear appeals from the decisions of the Adjudicating Officers. The tribunal consists of a single member designated as “Presiding Officer” mandated to have occupied the position of a District Judge and attained the age of 65 years on the date of appointment.

Any person aggrieved by the decision of the Adjudicating Officer may file an appeal before the Appellate Tribunal within a period of 30 days from the date on which the copy of the order against which the appeal is filed, is received by the appellant. The provisions of Limitation Act, 1963, shall be applicable to an appeal made to the Tribunal, except otherwise provided by the FSSA.

The Tribunal has vested with the same powers, which a civil court has under the Code of Civil Procedure 1908 (5 of 1908) (hereinafter referred to as “CPC”) while trying a suit, in respect of - (a) summoning and enforcing the attendance of any person and examining him on oath; (b) directing the discovery and production of documents or other electronic records; (c) receiving evidence in form of affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for non-appearance of the appellant, or deciding it ex-parte; (g) any other matter prescribed by the Central government.

The Tribunal is not bound by the procedure laid down by the CPC but should be guided by the principles of natural justice. It can regulate its own procedure and decide on the place of its sittings. The Tribunal has vested with certain powers of criminal courts too under the FSSA.

Any person aggrieved by an order of the Tribunal may file an appeal to the High Court of the state concerned. Normally this appeal is to be filed within 60 days from the date of communication of the decision or order of the Tribunal to him though the High Court can grant a further period of 60 days on reasonable reasons.

While adjudging the quantum of penalty, the Adjudicating Officer or the Tribunal is mandated under Section 49 of FSSA to follow the general provisions as follows - (a) the amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention, (b) the amount of loss caused or likely to cause to any person as a result of the contravention, (c) the repetitive nature of the contravention, (d) whether the contravention is without his knowledge, and (e) any other relevant factor.

Civil Courts not empowered
The FSSA bars a Civil Court for entertaining any suit or proceeding in respect of any matter which an Adjudicating Officer or the Tribunal is empowered by or under the FSSA to determine (Section 72).

Special Courts
Section 74 of the FSSA empowers the Central government or the state government to constitute Special Courts for the trial of offences relating to "grievous injury or death of the consumer" for which punishment of imprisonment for more than three years has been prescribed. A public prosecutor and one or more Additional Public Prosecutor may be appointed for every Special Court. Special Public Prosecutor can also be appointed for any particular case or class or group of cases.

Special Court may, on its own motion, or on an application made by the Public Prosecutor and, if it considers it expedient or desirable so to do, sit for any of its proceedings at any place other than its ordinary place of sitting. Any person aggrieved by an order of a Special Court may prefer an appeal to the High Court within 45 days from the date of serving of Order though the High Court can grant further period on reasonable reasons.

Summary trial
Summary Trial by a Judicial Magistrate of the First Class or by a Metropolitan Magistrate has been further provided under Section 73 for offences not triable by a Special Court according to procedure prescribed for summary trials in Sections 262 to 265 (both inclusive) of the CPC. In a summary trial, the Magistrate can pass a sentence of imprisonment up to one year only. If it appears to the Magistrate that summary trial is not desirable in a particular case because the nature of the case is such that a sentence of imprisonment of more than one year is to be imposed, or for other reasons, the Magistrate can pass an order to that effect after hearing the parties, and thereafter reexamine any witness and hear or rehear the case in the manner provided by the Code.
Compounding of offences
The FSSA under Section 69 also provides that designated officers empowered by the Commissioner of Food Safety can compound offences committed by petty manufacturers who himself manufacture and sell any article of food, retailers, hawkers, itinerant vendors, temporary stall-holders, by accepting from them a sum up to Rupees one lakh as compensation, and can discharge him if in custody. In such cases no further proceedings relating to that offence should be taken against him. However, offences for which punishment of imprisonment has been prescribed under the Act cannot be compounded.

Time limit for cognisance of offences
No court can take cognisance of an offence under the FSSA after the expiry of the period of one year from the date of commission of an offence. However, the Commissioner of Food Safety can, for reasons to be recorded in writing, approve prosecution within an extended period of up to three years.

(The writer is advocate, corporate law group, New Delhi)

Clearance for imported food items in India can be based on Japanese model

Delay in obtaining clearance for imported food items is a major problem for the importers, who have time and again tried to bring the Food Safety and Standards Authority of India's (FSSAI) attention to the issue. This was informed by Pankaj Shah, vice-president, the Bombay Custom House Agents' Association.

"The total time taken for clearance of imported food items is anywhere between five to 10 days, as sample testing itself needs five days. We have repeatedly approached the Authority on the issue but in vain. However, one good thing happened is that procedure for clearance has been placed online, which reduced our effort in approaching the authority a number of times," said Shah.

The situation is aggravating also because there is not enough infrastructure backup for storage of imported food items. Items which do not come in reefer vessels lie in open.

One suggestion made by Shah to the Authority was that the samples to be tested should be sent to those labs which were in the port area itself. "As Nhava Sheva port, where the imported food items land, is very far from the city, bringing the samples from there to the laboratory itself takes a day or two. If the lab is in the vicinity itself at least a day would be saved," he said.

Pankaj Jaiminy, assistant vice-president, food, health and beauty, TUV SUD South Asia, had another suggestion. He said clearance model akin to Japan could be adopted in India.

"Imported food items are cleared in Japan in a day or two, however, Indian imports take minimum five days. The system for testing of imported food items needs to be evaluated for workload.
The system adopted in Japan can be easily adopted by India for testing imported food items," Jaiminy said.

Interestingly, Japan is able to deliver results for testing of imported food items within a day or two. This is because it has approved different labs in the exporting countries. On arrival of import it would ask for the lab report from the exporting country. Then, Japanese authorities simply do a random sample testing for food items instead of testing each and every product. If the result of the sample tested does not match with that in the report received, the matter is reported to the Export Inspection Council which in turn issues an alert warning or suspends the services of the approved lab for time being.

Meanwhile, a delegation is sent to inspect the operations of the lab and the food business in the exporting country. This way cross and balances are maintained, informed Jaiminy.

“I do not feel FSSA, 2006, is within the priority of our present government”

The Food Safety and Standards Authority of India had been assigned with the implementation of a science-based uniform food law in the country that repealed several other laws and brought the industry under one umbrella—Food Safety and Standards Act. However, the FSSAI had to meet with a number of impediments even before it started to sail, a chat with Bejon Misra, consumer expert and member, FSSAI, throws more light on the issue

Tell us about your role in the FSSAI.
I was made a member of the Food Safety and Standards Authority of India in the year 2008, when it was formed and founded for the first time as the new law "Food Safety and Standards Act 2006." I was representing the interest of the consumers within the FSSAI.

What are the consumer concerns you have presented to the Authority and the outcome of your action?
Well, these would be:
a. Empowering consumers to demand safe and quality food through effective communication initiatives and making public the "Citizens’ Charter of FSSAI Consumers" to ensure accountability and transparency in its working.
b. Resources to be provided to registered consumer organisations with good track record to organise consumer education programmes.
c. A robust tracing and tracking system to alert consumers on food contamination and unhealthy food.
d. Strong labelling information on the GMOs and other harmful additives and ingredients as prescribed in the law.    The outcome has been that work has started in all the four issues but no tangible results in the interest of the consumer till date have taken place and we are still struggling to make these issues a tangible reality in India.

What has been the biggest achievement of the FSSAI so far?
A structured office with a secretariat, several consultations and meetings with the various stakeholders including participation by the FSSAI officials at various events in India and overseas Codex Committee meetings…

Is the leadership strong enough to bring about the intended reforms?
I do not feel FSSA (Food Safety and Standards Act, 2006) is within the priority of our present government. We do not have a chairperson for more than six months and there has been a complete disconnect between the policy-makers and the implementation authority. The state governments are yet to wake up on the new law and its implementation and the Central government is unable to mobilise the support from the states on its prompt implementation. After five years the rules have got finally notified and the rollout plan seems unclear and direction-less.

Are there any difficulties in setting up the required machinery / infrastructure and pooling resources in bringing about the implementation of the Act?
Yes, lack of strong leadership with a commitment and passion for reforms in the food standards and its implementation programme. The biggest difficulty is lack of right kind of resources and involvement of technically competent experts on the subject who have the time to work at the district level of our country in an unbiased manner in the interest of all the stakeholders. We must create good models at the state level and encourage good players from the food industry who demonstrate best practices in the interest of the consumer.

Do you think members and the Authority as a whole have the right spirit to inculcate a culture of food safety in the industry and the masses? 
The involvement of the members is only confined to the three meetings during the year and invitation to some events or seminars. The members selected within the Authority are experts on their respective clusters but unfortunately their involvement is not as desired because of lack of motivation and proper working processes. Of course, the members could have done much better if the FSSAI governance would have been more efficient and effective. Lots can be achieved, only if the processes are made accountable and transparent.

Would you call the Act industry-friendly or consumer-friendly? Why?
The law is excellent in its present form but could be made more consumer-friendly by strengthening the rules on enforcements and prompt redressal on complaints and violations with deterrent penalties to ensure effective implementation of the existing law.

The Authority has been questioned for delaying the implementation of the Act. Do you agree that procedural delays could be avoided?
Yes, I agree. The implementation of the Act has got delayed beyond acceptable timeline. Of course they could have been avoided provided the chairman was more independent and was given a free hand to ensure he could select his own team and work in a manner which would provide the best results. The FSSAI should get insulated from political and bureaucratic interference. The Authority should meet more regularly and be free to use the public resource in an efficient and transparent manner.

FSSAI is completely an autonomous body. However, the Supreme Court had to intervene several times...Is there a need to have a watchdog to monitor its functioning? Why?
As I mentioned, we do not need to create another body to become a watchdog to FSSAI. We have scarce resources in our country and already have several watchdogs like CAG (Comptroller and Auditor General) and others. What we need is an independent working culture with clear accountable processes and active involvement of the members on a day-to-day basis to ensure the secretariat is working in an efficient and effective manner. We have to bring best management practices and learn from other countries which have similar regulators. We have enough bodies in our country as regulators or watchdogs, which are expensive and a burden to the consumers. What we need is lean governance with efficient outcomes in the interest of all the stakeholders.

Do you think we have a competitive team in terms of scientific panels and committees to bring in regulatory reforms for the industry?
I cannot comment on this because I have really not studied this aspect yet but I am happy that these committees are now devoid of representatives from industry who are still on their roles or engaged as consultants. All such committees should have neutral and competent persons of repute to bring reforms in the food sector in India.

What are the challenges that the Authority would now need to overcome in terms of standard-making, implementation and enforcement?
The biggest challenge is to make FSSAI the official standards-setting body in India on food and not BIS (Bureau of Indian Standards). This will ensure harmonising the process and making it accountable. The next big task is to bring all the state governments on the same page and encourage prompt reforms by providing incentives and support systems by engaging private sector with the best track record and not depend on public structures, which should be made accessible at a competitive price. The state governments should only ensure implementation and enforcement and not be service providers but service purchasers from the best entities.

Will the new Act benefit the Indian consumers in a big way?
Of course, the new Act is supposed to benefit the Indian consumer in a big way and that is why we agreed to support this new legislation but not in the manner it is handled today. By now we should have notified the best standards as per Codex Guidelines, we should have had an excellent tracing and tracking system in place, studies conducted on food contaminants and adverse effect of unhealthy food, penalties on misleading and deceptive advertisements, consumer awareness and education on access to safe and quality food and finally a strong regulatory mechanism at the Central and state level.

Are the consumer concerns sufficiently being represented to the Authority?
No. Unfortunately the consumer organisations in India lack the technical competence and resources required to intervene before the FSSAI and it is for the government to find a solution to this unfortunate state of affairs with the consumer organisations in India. Even though the Planning Commission has provided substantial budget to the various ministries on empowering the Indian consumer, I still find very little is done to institutionalise the process of intellectual intervention before the FSSAI to represent consumer concerns. Whatever representations are done are also not encouraged and implemented in the manner desired by the consumer. The law provided two consumer representatives within the Authority but their concerns are rarely heard and recognised by the secretariat of the FSSAI.