Jolt for FSSAI as Nagpur bodies move HC against “unconstitutional” FSSA

Challenging the constitutional validity of the provision of the Food Safety & Standards Act, 2006 (FSSA 2006), Nagpur-based Vidarbha Taxpayers Association (VTA) and Nagpur Residential Hotels Association (NRHA) have filed a Public Interest Litigation (PIL) with the Nagpur bench of the Bombay High Court.

The PIL has been filed against the Food Safety and Standards Authority of India, (FSSAI), the union ministry of health and family welfare, ministry of law & justice, legislative department, and the Food and Drug Administration, Maharashtra.

Calling certain provision of the FSSA unconstitutional, the PIL also challenges the legality, validity and propriety of the Regulation No. 2.1.2 of the Food Safety & Standards (Licensing and Registration of Food Business) Regulations, 2011.

According to the petition filed by Tejinder Singh Renu, secretary, VTA and NHRA, the provision engrafted in the FSS Act appear to harm even innocent traders and others. It said that the law is passed without the traders, merchants, businessmen, etc., concerned in this field. “It is good to have such a law but at the same time it is very difficult to imagine that such a law can be implemented in a most haphazard manner or in a haste shutting eyes to the pragmatic practices and the practices of food business prevalent in India,” said the petition.

The PIL has accused the Authority of enforcing a law which is immensely vague. It is a settled democratic principle that, every wing of the government be it the executive, the legislature or the
judiciary has to separate grain from chaff in respect of issues before it. While drafting a law like the FSS Act, 2006, the target persons must be the one who are engrossed in food adulteration and
black-marketing. However, in catching hold of such persons, the FSS Act, 2006, sounds to be a good prospect but, it may cause more harm than good by implementing the penal, harsh and draconian provision even against the bona-fide food business operators due to its immense vagueness, the petitioners said.

Before the FSSR was enacted (Aug 5, 2011) the petitioners had sent suggestions to the FSSAI in framing regulations and specifying standards under the Act. They suggested that the FSSA, in spite of its niceties, was a glaring example of absurd provision vaguely worded. Further, it treated all food business operators at par without taking into account the prevalent practices in the country. “By and large, the FSSA would provide a fresh lease of life for Inspector Raj and this would increase the rate of corruption chaotically,” the petitioners said.

The FSSAI did not acknowledge the suggestions and comments sent to it for a long time. Till then on August 5, 2011, the FSSR had already been brought into force.

The petitioners then moved an application under the RTI Act, 2005, seeking information about the provision of the FSSR, 2011, etc. as also about the suggestions, objections, comments, and hearings etc., invited by it on the Act, Rules and Regulations. The FSSAI’s reply revealed that no hearing was ever called upon before preparation of the Rules & Regulations under the FSS Act, 2006. The PIL has called this as illegal and improper. It said that the framing and implementation of the FSS (Licensing & Registration of Food Businesses) Regulations, 2011, is per se contrary to the provision of Section 18(2)(d) and 18(2)(a)(i).

Section 18(2)(d) of the FSSA says that the Food Authority shall, while framing regulations or specifying standards under this Act, shall ensure that there is an open and transparent public consultation, directly or through representative bodies including all levels of panchayats, during the preparation, evaluation and revision of regulations, except where it is of opinion that there is an urgency concerning food safety or public health to make or amend the regulations in which case consultation may be dispensed with, provided that such regulations shall be in force for not more than six months. Further, Section 18(2)(a)(i) of the FSS Act, 2006, reads that the Food Authority shall, while framing regulations or specifying standards under this Act, take into account the prevalent practices and conditions in this country including agricultural practices and handling, storage and transport conditions.

The PIL said that the FSSAI has enforced the FSSR 2011 without ensuring that there is an open and transparent public consultation either directly or through representative bodies including all levels of panchayats.

The petitioners claimed to have made a representation wherein they suggested variegated changes in the drafts etc. of these regulations but the FSSAI neither acknowledged the same nor granted any opportunity of hearing to any person. “It is difficult to imagine that, in a country having a population of 1.2 billion and more not even one person wanted a consultation on these Regulations more particularly when the FSSA 2006 and the Regulations take within their sweep all the food business operators at all levels whatsoever,” read the PIL.

In its reply to the RTI filed by the petitioners, the FSSAI categorically admitted that no hearings on the objections were called for and no personal hearings have been conducted for any suggestions/comments. “In light of this statement of the FSSAI, the FSSR is unsustainable in law and need to be struck down forthwith,” the PIL said.

Further on Regulation No. 2.1.2 of the FSSR (Licensing & Registration of Food Businesses) it said that it was contrary to the principles of equality enshrined U/A. 14 of the Constitution of India. It may be noted that, wherever arbitrariness steps in Article 14 comes into picture.

Regulation 2.1.2 of the FSSR talks about obtaining a valid licence or registration for food business operations. The requirements of Schedule IV, as per the regulation, appear to be mandatory for every food business operator irrespective of whether a food business operator already carries on such a business or a new venture is proposed to be commenced by a person.

According to the PIL, it is nothing but arbitrary to treat the food business operators who are already carrying on their businesses and the food business operators intending to commence their businesses at par. There must be separate guidelines for them. Thus Regulation No. 2.1.2 is violative of Article 14 of the Constitution of India.

Further, the broad width and contours of the FSSA try to include food business operators at all levels be it a street food vendor or a seven-star rated hotel. In other words, the settled principle of law of equality that injustice arises when equals are treated unequally and when unequals are treated equally, is flagrantly violated by the provision of the FSSA and the FSSR. Thus, for not appreciating the rational intelligible differentia in framing and implementing the FSSA and the FSSR the PIL has asked that these regulations, more particularly Regulation No. 2.1.2, needed to be struck down as they were unconstitutional and violative of Article 14 of the Constitution.

For the same analogy and argument, Section 31 of the FSSA needed to be effaced from the Statute Book.

Further, the PIL said the entire quasi-judicial structure of authorities set up under the FSSA for implementing the provision of the Act was contrary to the test of impartiality. The theme and scheme of the FSSA revealed that a quasi-judicial institutional structure had been set up thereunder with powers to unilaterally decide the non-compliance with the provision of the Act.

“It is difficult to imagine that the authorities, entrusted with the function of discharging quasi-judicial functions prescribed under the Act, can act independently and with impartiality,” the petition said.

It is a fairly settled law all over the globe that an accused is presumed to be innocent till his guilt is proved. However, the authorities entrusted under the FSSA and the rules and regulations made thereunder were the limbs of the FSSAI and were bound to presume that a person accused of any delinquency under the Act was guilty and must establish his innocence.

Further, the PIL pointed out that certain provision of the Act were vague. For example, Section 50 of the FSSA 2006 read: “Penalty for selling food not of the nature or substance or quality demanded. Any person who sells to the purchaser’s prejudice any food which is not in compliance with the provisions of this Act or the regulations made thereunder, or of the nature or substance or quality demanded by the purchaser, shall be liable to a penalty not exceeding five lakh rupees. Provided that the persons covered under sub-section (2) of section 31, shall for such non-compliance be liable to a penalty not exceeding twenty five thousand rupees.”

The wordings of this Section are vague. According to the petitioners, the expression nature, substance and quality demanded by the purchaser is not capable of independent adjudication as considering the prevailing Indian practices it is difficult to imagine that there can be any proof of what purchaser demanded and what was sold to him.

Also, the purchaser is likely to take undue advantage of the expression underlined in Section 50. When the Act was meant to be fair by the food business operator it was also needed that consumers and purchasers be fair to them reciprocally. Hence, such provision, particularly the expression underlined in Section 50, needed to be struck down as arbitrary and unreasonable. This Section violated the right to carry on business, trade and occupation as enshrined U/A. 19(1)(g) of the Constitution of India.

The PIL has also pointed that certain provision of the FSSA and the rules and regulations give unfettered discretion to the Authorities. These should be scrapped for the simple reason that if the officers do not exercise their discretion in a sound and judicial manner the aggrieved person would be rendered remediless.

“It is erroneous to say that the Food Safety Appellate Tribunal set up under the Acts can give an independent decision to such a person,” said the PIL.

Notably, there is no provision under the FSSA earmarking the accountability of the commissioners and other officers appointed to ensure the execution of the provision of the Act.

Hence, this provides a space for sowing the roots of corruption. The FSSA, though not unsustainable in totality, needs to be reviewed and until the same is done by Parliament the implementation of its vague provision must be stayed during the pendency of the present petition else it would result in causing irreparable loss to the food business operators.

The PIL is listed for hearing on April 10.

Uttar Pradesh schools to ban sale of junk food

 

Uttar Pradesh: The move was initiated by the Secondary Education Council following instructions from the federal Health and Family Planning ministry.
The Uttar Pradesh government has asked all schools in the state to ban sale of junk food within their premises and outside, an official said today. A senior government official said the move was initiated by the Secondary Education Council following instructions from the federal Health and Family Planning ministry. In a letter addressed to principals of all schools, secretary of the UP Madhyamik Shiksha Parishad (Board of High School and Intermediate Education) asked to ban sale of all forms of junk food, carbonated cold drinks and high sugar containing food from their campuses.
The letter said consumption of such food items leads to a host of diseases, including diabetes, high blood pressure and piled up cholesterol levels. The letter specifically mentioned the high trans-fat levels in foods sold in different forms like wafers, salted and fried items. The official letter has encouraged school managements to promote healthy and nutritious food amongst school going children. The letter also warned strict action against the district inspector of schools of that area, if the orders were not implemented.

Hotels, restaurants to go on three-day strike from Apr 9

INDORE: After jewellers, it is now the turn of hotels, restaurants and groceries in the state to go on strike. The MP Food Manuifacturers and Retailers' Association will launch a three-day state wide strike from Monday to protest against the Food Safety and Standards Authority of India Act, 2006 that came into effect from August last year.
The Act that is being termed 'draconian' by the association will affect about 8400 traders in Indore and 60,000 across the state.
The Food Safety Administration (FSA) has already issued advisory to all the traders to comply with the norms. Negligence or violation of the provisions of the Act could land a trader six months imprisonment and/or Rs five lakh fine.
The Act makes it mandatory for traders to appoint a consultant, qualified not less than BSc, to monitor their activities and certify that their establishments were abiding by the norms as set by the Act.
There are more than 45 various associations of traders that are participating in the strike. Besides, they claim to have participation of malls and retailer chains too, including Reliance Fresh, Big Bazar and Easy Day. Even milkfood retailers and pan masala vendors have also joined the move.
Talking to ToI, Vikas Jain, general secretary, MP Food Products Manufacturers & Sellers' Association, said "We will march to the Parliament on April 24 if the government fails to act on our demands".
Jain claimed that the strike was getting active support from their counterparts in states like Gujarat, Maharashtra and Rajasthan. "We are already in touch with them", he added.
Rajkumar Gupta of Prakash Namkeen, said that on a daily basis, we sell salted food items to the tune of 10-20 tons in Indore alone with a daily turnover of Rs 10 crore. This would be affected by the strike.
While the chemists are also with us, they have promised to keep their shutters down for a day keeping in view the urgency of the need of life saving drugs, said Gupta.
Hotels in the city are learnt to have stopped fresh bookings of guests for the next three days. Only those who had booked for advanced stay will be able to stay in the hotels, said a source.
The MP Food and Manufacturers & Retailers Association held a meeting at Gandhi Auditorium in Indore on Saturday evening in which several traders took part by staging slogans against the Act and spotting a black ribbon on their arms in protest against the law.
Meanwhile, a heavy rush was seen at the grocery shops as people have started stocking provisions.
Milk vendors also join
Milk and food retailers too have also joined the bandwagon by joining the strike. Ashish Patodi, executive member of Indore Milk Sellers' Federation, said that on an average a milk vendor is able to sell milk products to the tune of 100-200 litre per day. So, it is impossible for them to abide by the norms which requires them to produce safety certificate every now and then to the competent authorities. Again, it is quite difficult for us to appoint a consultant, who will be a science graduate and who will provide us certificate for the product. Tell me who will be ready to do such job after getting qualified? he asked.

'Corporation should not interfere'

KOCHI: In the wake of Kochi Corporation seizing stale food from various eateries in the city, Kerala Hotel and Restaurant Association (KHRA) has come out strongly against the civic body. “The Corporation is not authorised to check the food served in eateries. According to the Food Safety and Standards Act-2006, it is the duty of the food safety authorities. When there are food inspectors to do the job, the Corporation should not interfere,” said KHRA president G Sudhiesh Kumar. “Moreover, the Corporation does not have the equipment to test the food. If the Corporation authorities can spot ‘stale food’ just by looking at the food, then why do we need laboratories to conduct the tests? The only possible reason behind the Corporation’s action is that they want to levy fines from the restaurant owners,” added Sudhiesh.
Meanwhile, the District Medical Officer (DMO), who is also the District Health Officer, noted that the District Health Authorities conduct raids in the eateries in the panchayat areas while the corporation checks the restaurants within the city limits. “The health department of the corporation regularly keeps a tab on the conduct of the eateries in the city. Meanwhile, our health inspectors take care of the eateries in the outskirts of the city and in the panchayats,” said Dr R Sudhakaran, DMO. “As far as we know, the health department of the Corporation is authorised to conduct raids in the eateries,” added Dr Sudhakaran.

G.O FOR ENHANCED D.A

Mid-day meal incident: 120 discharged from hospitals

PUNE: Barring 12 children, 120 students of the municipal school at Janata Vasahat in Parvati, who suffered food poisoning on Saturday, were discharged on Sunday. A total of 132 students were admitted to different hospitals on Saturday after they complained of vomiting and nausea after they ate food served under the mid-day meal scheme.
"Children who are still in the hospital are likely to be discharged on Monday," said city health chief S T Pardeshi of the Pune Municipal Corporation (PMC).
The Poona Hospital had admitted 85 students. "Barring three students, all the 82 children were discharged on Sunday," said paediatrician Lalit Rawal of the Poona Hospital and Research Centre.
The three children who are still under observation at hospital are likely to be discharged early on Monday, Rawal added.
"Two of the three students vomited even after they were administered medicines. Hence, they have been kept under observation for extended period
. One student complained of nausea and vomiting on Sunday, hence he was admitted to the hospital. He will be discharged tomorrow," Rawal said.
Total 29 students were admitted to the Deenanath Mangeshkar Hospital and 18 to the Global Hospital.
Service provider didn't have FDA registration
The Sai Vyvasayik Gat, a self-help group that had been acting as a service provider to the civic-run school for mid-day meal, was found to be running the business without seeking the mandatory registration from the Food and Drug Administration (FDA).
"We are going to issue a notice to the Sai Vyvasayik Gat for not seeking the mandatory registration. A penalty up to Rs 2 lakh can be slapped for this violation under Food Safety and Standards Act, 2006," said Chandrashekhar Salunke, joint commissioner (food), FDA. Besides, a fine up to Rs 1 lakh can be separately imposed for not adhering to the hygiene standards laid down in the Act for preparing food.
"The idlis, which were served to students, were prepared in unhygienic conditions," Salunke said. According to inspection report, the food was prepared under a tin-shed in a congested 8x12 room, which had less ventilation.
The Pune Municipal Corporation (PMC) has suspended its contract with the Sai Vyvasayik Gat.

Specify contaminant level in water used for food: Panel

An expert committee on water constituted by the Food Safety and Standards Authority of India (FSSAI) has proposed that standards should specify the “maximum contaminant level acceptable for the water as an ingredient of food” and the adjacent column of “permissible limit” in the absence of “alternate source” to be deleted.

Also, with regard to the pesticide residues it has been suggested to prescribe limit of total pesticide residue of 0.0005 mg/lt as prescribed in packaged drinking water standards.

As per the FSS (licensing and registration of food business operators) Regulations, 2011, it is mandatory to provide analyst’s report of water to be used as an ingredient of food while applying for license to state/ Central licensing authority.

The expert group under the chairmanship of then CEO VN Gaur deliberated upon the Standards for Water used in Food during its manufacture, preparation or treatment.

It opined that the standards of water were drafted for the food business operators who had commercial interest and therefore it was their responsibility to source water from appropriate places and maintain the desired quality of the water.

In Table 2.2 of the draft the general parameters concerning substances undesirable in excessive
amounts the free residual chlorine mg/l max are given. It was suggested to be modified to 0.2 mg.

The expert group also suggested corrections to be made to the table 2.6 of the draft. Accordingly, for the bacteriological quality of water, the draft will now mention as below:
a. Enteric Viruses (Viz. Rota) – Shall not be detectable in any 100 ml sample
b. Protozoa (Viz. Entamoeba, Giardia, Cryptosporidium) – shall not be detectable in 10 litres of sample.

With the above suggested changes expert group recommended the draft standards for water as an ingredient of food may be placed before the scientific panel for food additives, flavourings, processing aides and materials in contact with food for further evaluation and recommendation.

Similarly the draft definition of “non-carbonated water-based beverages (non-alcoholic)” was critically examined by the expert group and suggested the following changes:

a. The definition of the non carbonated water based beverages should be categorised and revised as follows:

i) Water-based beverages with added fruits/vegetables, aromatic and herbal flavours: This includes fruit flavour ades, fruit juices/pulp/puree/concentrated fruit juices, herb-based drinks (e.g. Iced tea, fruit flavoured iced tea), lactic acid beverages (buttermilk), used as single ingredient or in combination but less than 10% of fruits/vegetable content and less than 5% of lime/lemon content. Or containing extracts, essences and /or aromatic substances of herbs, edible parts of plant (considering their safety factor regarding consumption) (e.g. seeds, leaves, bark, stems, roots etc.), natural or nature identical flavour concentrates not more than 0.05% used singly or in combination with or without added artificial sweeteners permitted under FSS Regulation (3.1.3).

ii) Water-based beverage with added micronutrient: This may contain added vitamins, electrolytes, minerals with or without permitted sweeteners, additives and may also contain ingredients mentioned in category i) to be used singly or in combination but not more than the limit prescribed for these ingredients in category i).

a. It was pointed out that safety aspect of the parts of plants used in water based beverages should be added in form of a foot note. A reference of the herbs which can be used and those which are permitted should be mentioned as foot note.
b. Experts opined that special reference should be given as a foot note for psychotropic substances like opium etc. derived from plants and herbs, which shall not be used in these water based beverages.
c. Good established practices for use of the flavours, extracts, their limit of addition etc. should be a part of the foot note. Additional information on existing practice of addition of flavours in the water based beverages and its quantity in percentage may be obtained from the manufacturer's association.
d. The expert group opined that necessary addition to be done in category 2 of water based beverages that herbal water should contain flavours of natural origin only.
e. The group suggested that the statement under provision 2.10.6, para 2 “shall not be packed, distributed or sold in returnable containers”, should be deleted .
f. It was asked to collect data regarding the use of natural/ nature identical flavours in water from European Union, USA, UK/CODEX.

Further, the expert group deliberated on the representation submitted by the packer of Natural Spring water under the brand Mulshi Spring. The expert group opined that the Natural spring water was obtained directly from natural sources springs artesian well, or from an underground water bearings strata for which all possible precaution needed to be taken within the protected perimeters to avoid any pollutions or external influence on the water quality. Spring water required to be collected under conditions, which guarantee the original natural bacteriological purity and chemical composition of essential components and need to be bottled at the point of emergence of the source under hygienic conditions. It was not subjected to any chemical treatment as such as pasteurization, ionization, or ozonation. Keeping in a view, risk associated with the natural spring water specific standard need to be laid down.

In light of the issues mentioned above and deliberations of the expert group on the same, Chairperson suggested that more information on natural spring water may be obtained from the applicant and standards prescribed for the natural spring water by the international agencies / countries (USA, UK, EU, Codex etc) may be obtained and specific standard to be drafted for the appropriate consideration and recommendation by the Expert Group / Scientific Panel.

Three-day bandh in MP from today

Food product makers, wholesale dealers and retailers, restaurant owners, supported by pulse processors across the state will observe a three-day bandh in protest against the Food Safety and Standards Act, 2011.
Calling the Act “anti-trade, anti-reform, which will encourage licence and inspector raj in the country,” all retail outlets and eating joints will remain closed for three days starting tomorrow (9th, 10th and 11th April), in protest of the Act.
Speaking to Business Standard, Ramesh Khandelwal, president of MP Food Products Nirmata Avam Vikreta Mahasangh, said, “They want us to prepare an audit report, obtain clearance from state pollution control board, get no-objection certificate from municipal corporation, medical certificates of workers, graduate technologist and a separate audit report made from milk. Is it possible? In a large economy like India, it is impractical. We will observe a three-day bandh from today across the state.” Meanwhile, dal processors association has also supported the protes. Association president Suresh Agrawal has termed the Bill against trade lobby and said it will encourage babus to extract bribe from retailers, small businessmen and manufacturers. “We will fully support the three-day bandh,” said Agrawal.
The traders are opposing separate licence for each enterprise, separate audit reports for various products. For example, the pulse processors are protesting the exemptions available on wholesale of 20 kg packages. They are also protesting the mandatory licencing for micro small entrepreneurs like those who specify grades for foodgrains like wheat.
More importantly, they have strongly opposed the Act for allowing district authorities to fine at their discretion. “This would trigger further corruption and would allow government machinery to harass the processors,” Agrawal said.
“This Bill,” Khandelwal said, “would encourage monopolistic approach of multinational companies and would finish small businessmen, hawkers , street vendors even those who are into wholesale business.” “We want food safety but not at the cost of our business government must improvise the bill in Indian context and revise it further,” he added.