The Food Safety & Standards Act, 2006, which was formed for laying down science-based standards for articles of food and regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto.The food authority and the state food safety authorities specified in Sections 30(1), 36(1) & 37(1) of this Act shall be responsible for the enforcement of the provisions of the Act. It empowers the said authorities to monitor and verify that the relevant requirements are fulfilled by food business operators, maintain a system of control, public communication on food safety and risk, food safety surveillance and other monitoring activities covering all stages of food business. It empowers the state government to appoint commissioner of food safety for the state for efficient implementation of food safety and standards and other requirements laid down under the Act or the rules and regulations made thereunder. No person shall commence or carry on any food business except under a licence issued by a designated officer authorised by the commissioner of food safety. Petty manufacturers, retailers, hawkers, itinerants, vendors, small scale, cottage & tiny food business operators are exempted from licensing. They are required to be registered themselves with appropriate authority. An appeal against the order of the designated officer shall lie with the commissioner of food safety. The designated officer may serve an improvement notice if he has reasonable grounds for believing that the proprietor or a food business operator has failed to comply with any regulations and in the event of failure to comply with such improvement notice, the licence may be suspended or cancelled. It empowers the court to issue prohibition orders in cases where the food business operator is convicted of an offence under the Act. It empowers the commissioner of food safety to appoint food safety officers in consultation with the state government, by notification, for such local areas as it may assign to them for the purpose of performing its functions under the Act. It enumerates in detail, the powers of the food safety officer, which include taking of a sample of any article of food seizure of any article intended for food which appears to the food safety officer to be in contravention of the Act or the regulations or orders made thereunder, power to enter and inspect any place where article of food is manufactured, or stored for sale, etc.
It seeks to provide punishment for carrying out a business of manufacturing, selling, storing or distributing or importing any article of food without a licence by any person or a food business operator either himself or by any person on his behalf, who is required to obtain a licence under the Act.
It makes enabling provisions for establishment of tribunals to be known as the Food Safety Appellate Tribunal consisting of one person only as the presiding officer of the Food Safety Appellate Tribunal to be appointed by the Central government or the state government as the case may be.
The deadline for licensing & registration has been extended by six months. So far, Maharashtra has already issued 1,70,000 licences collecting a revenue of around Rs 44 crore. In Mumbai alone around 30,000 licences were issued and a revenue of Rs 8.5 crore collected.
Petition
The petitioners filed by the Bombay food traders said that the conditions or surroundings required as a pre-condition for obtaining a licence is virtually impossible. According to the petition, failure of the state government/ local authorities or industries to maintain areas free from environmental pollution and industrial activities cannot deprive licence to the food business operators (FBOs).
The petitioners said that such provisions were an obligation of state/ local municipal corporations over which FBOs has no control. Same is the case with drainage and sewage. The petition also points at a clause which states, if FBOs fails to comply with the improvement notice, the DO may, after giving the licensee an opportunity to showcause, cancel the licence granted to him.
While an opportunity to show cause is provided before the DO may cancel the licence granted, the section makes no provision for the period of notice or for grant of personnel hearing to make the provision inconsonance with the principles of natural justice as enshrined under Article 140 of the Constitution of India.
Interim injunction
The Madras High Court has granted an interim injunction restraining the commissioner of food safety of Tamil Nadu from enforcing the provisions of the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations 2011 against the members of the Tamil Nadu Hotels Association.
In the petition, the petitioners challenged the validity of certain regulations framed under the Food Safety and Standards Authority of India for laying down scientific standards for food articles and regulating their manufacture, storage, distribution, sale and import.
The petitioners said the association members were running non-star restaurants, eateries, mess, sweet stalls, bakeries and coffee stalls. The regulations were "really draconian" in nature as the conditions laid down were virtually impossible to be implemented. They would result in "devastation of local food industries which were in the nature of small-scale or cottage industry and the entire food business would be conquered by multi-national companies and multi-national industries."
National survey
The National Survey on Milk Adulteration, 2011 was conducted by the regional offices of FSSAI in Chennai, Mumbai, Delhi, Guwahati, and Kolkata. A total of 1,791 samples were collected from 33 states. The Food Safety Standards Authority of India (FSSAI) study claimed that 70 per cent of milk samples picked up failed to confirm to standards. It had also claimed 50 per cent of the samples were found to be contaminated with glucose and skim milk powder.
Also addition of milk powder has also been considered as adulteration by the food Safety and Standards Act 2006, double toned, toned, standardised and full cream milk can be standardised for fat and solids by mixing SMP. During winters, the milk supply is 50 per cent in excess. So it is scientifically and hygienically converted into SMP by evaporating the water, with a view to conserve it. This is reconstituted later to meet the demand in summers, when supply is short.
Substandard milk
The CEO of FSSAI has clarified that the substandard milk being sold in India is mostly nonconforming to FSSAI standards and all nonconforming milk may not be contaminated or unsafe for human consumption. However, the survey report sensitizes the milk producer, processor and consumer to the FSSAI standards and also raises the awareness of substandard milk being sold in the country. On-going through the report, majority of the samples have failed due to the presence of Skimmed Milk Powder which by itself is not an adulterant or contaminant if added to any standardized milk sold either as Standardized, Full cream, toned or double toned milk. But, for milk being sold without any marking the law states that addition of SMP is not allowed. Also some cases of neutralizer, urea and detergent addition are also reported which is definitely of serious concern.
Food legislation is recognised as an important pre-requisite for protection of the consumer's health and facilitating free and fair trade. Other concerns addressed by the food legislation include development of quality assurance system and the ultimate development of the industry itself. The Food Safety and Standards Authority of India (FSSAI) has been created for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption. These legislationsare intended to regulate the safety and quality of foods, both domestically produced and imported. This shows the seriousness of the government in addressing food safety related issues. However, change in legislation is needed to clarify the role of different persons involved in food production especially producers, traders and manufacturers.
Unfortunately, there is no national system for monitoring of contaminants levels in foods or for regular surveillance of food-borne diseases in the country. Incidences of food poisoning are occasionally reported in the media.
Contamination
Contamination of milk with pesticide residues, veterinary drugs and heavy metals is being / has been surveyed independently by the Indian Council of Medical Research, National Dairy Development Board, National Dairy Development Research Institute, Export Inspection Council of India and Agriculture Research Institutions as per their requirements and mandate. Their results are often not published. Some consumer organizations have also surveyed contamination in milk from some specific locations occasionally. Some individual organizations do publish data based on their surveys, often limited in scope and size, on contaminants levels in milk and milk products. But published information of such surveys is limited, and sometimes presents questionable data. It is unfortunate that reliable published information on levels of different important chemical contaminants in foods, and their trends, is generally lacking. Institutions must be identified for generation of database to be used both for national and international standard formulation. A national review of research activities be undertaken involving Universities, Research and Development Institutions, Industry and consumers so as to give priority to research aiming at providing necessary data to better manage food safety.
Standards too must be updated from time time so as to reflect the present day need prevailing in the Global market as well as to harmonize with Codex Standards where ever feasible. While the onus is on the food industry to produce food that is safe and of high quality, the national food control system designed to include contemporary approaches and having due regard to Codex Stndards can play a vital role in ensuring food safety throughout the food chain. Simultaneously strategies for risk assessments and risk management must be worked out. A standing group of experts be constituted to review and update the syllabus for various training courses for senior officers, food inspectors, consumers, analysts and other stakeholders. The training syllabus for senior officers and inspectors associated with enforcement should lay more emphasize on adoption of GMP, GHP, seven principles of HACCP by the industries rather than mere sampling. A code of practice for inspection be prepared incorporating modern inspection techniques based upon HACCP principles and sampling procedure in accordance with Codex and the same be made available to the States for their guidance. The statutory training for food inspectors for a period of three months should be conducted at the Central level for the sake of uniformity in approach and better exposure.
In response to the petition, the FSSAI has submitted an affidavit and another affidavit from the Maharashtra FDA would be submitted on August 2. FSSAI's affidavit reads that the petitioners are guilty of gross delay and latches in filing the present petition are not entitled for any relief and interim relief to the petitioner.
Further, the petitioner cannot seek a stay on legislation after more than five years the same was enacted. It is only in the most exceptional of cases that a preliminary legislation may be stayed. The present case does not fall within the said category of exceptional cases.
