Food for thought

Regulating food standards is no easy business, but something that needs to be taken seriously by the authorities concerned

When India attained independence in 1947, the need then was to provide food for the new nation and punish those who tried to benefit by dealing in adulterated food. The Prevention of Food Adulteration Act, 1955 (PFA), as the name suggests, was framed with such an intent. Over time, the need changed from policing the food industry to ensuring that that safe food was available to people. The Food Safety and Standards, Act, 2006 (FSSA) replaced the PFA.

One oft quoted example is that the PFA treated a person who adulterated milk with gutter water and one who used distilled water equally. The FSSA, thankfully, makes a distinction between such situations and provides for stringent punishment, including imprisonment, when the food sold is unsafe but contemplates a fine where there is some other violation.

The FSSA has also created the Food Safety and Standards Authority of India (FSSAI) as the regulatory authority at the national level, tasked with ensuring ‘safe and wholesome food’ through ‘science based standards’ for food.

One question that naturally arises is what is ‘food’? Under the FSSA, ‘food’ includes any substance (processed or unprocessed) intended for human consumption, including ‘proprietary and novel’ foods, genetically modified foods and health supplements.

The FSSA consolidates the laws relating to food and has overriding effect over other food related laws. The FSS regulates the manufacture, storage, distribution, sale and import of food. It provides for licensing and registration of persons involved in food business; prescribes standards and guidelines for food articles and regulates use of food additives, processing aids, colours and contaminants; prescribes packaging and labelling requirements; imposes food safety responsibilities on the manufacturers to ensure food safety at all stages; prohibits misleading advertisements and unfair trade practices for promoting the sale, supply, use or consumption of food.

Recognising the fact that is impossible to lay down the standards for every substance that humans may consume, the FSSA provided for ‘proprietary food’, which is defined to mean food for which standards have not been specified but which is not unsafe and does not contain any prohibited food or ingredient.

In most countries, there is no concept of standardised food — of food having to meet a particular standard in terms of ingredients used as long as the food does not contain any prohibited ingredients or generally contains ingredients from a list, it is permitted.

These concepts of standardised and proprietary food and the fact that the FSSAI requires every proprietary food to be pre-approved are proving to be one of the biggest challenges faced by food business operators, in particular food importers. What the pre-approval process implies is that if any person wishes to sell any food in India which does not strictly fall under with any of the standardised foods in the FSSA needs to have the food pre-approved by the FSSAI, much in the same manner as the drug controller approved drugs.

There is some debate as to whether the FSSA at all provides for approval of all proprietary food but the FSSAI is following this process nonetheless. While this process of pre-approval may be beneficial for the consumers as it ensures that all foods are thoroughly examined before being introduced in the market, it seriously diminishes the ability of manufacturers to introduce new foods quickly. Under the current process even if a manufacturer wishes to introduce a combination of two approved foods or change the flavouring in some approved food, he will again need to obtain approval from the FSSAI. This is one reason why many food products and variants that are available abroad are not seen on Indian shelves.

The second major challenge faced, again particularly by importers, is the fact many standards laid down under the FSSA are divergent from international standards. The FSSAI needs to address this rather quickly as many foods available abroad become either unavailable in India or need to be greatly modified in order to be sold here.

A third major challenge being faced, perhaps more by the FSSAI than by food business operator, is the requirement of every food business operator to have a licence/ registration. This includes every eatery and restaurant and also every shop selling packaged food. Given the fact that there are millions of such establishments in the country, issuing licences/registrations to everyone will stretch FSSAI’s resources. The deadline for this is February 4, 2014 — and frankly, the FSSAI may have bitten off more than it can chew. It is possibe that either the FSSAI may extend the deadline or most operators may not be able to obtain a licence/registration before the deadline. Notwithstanding these problems, the requirement of a licence/registration is certainly a step in the right direction. We the consumers would be reassured if we knew that the operator had been scrutinised by an authority.

A fourth challenge being faced is in proceedings that are being initiated under the FSSA. The PFA, which had been around for decades, had been subject to hundreds of court proceedings and there was an air of certainty regarding the procedural aspects of proceedings under the PFA. Under the FSSA, however, it will be some time till such certainty is reached. At present, there are examples where similar proceedings in different states are being conducted in entirely divergent manners.

Most of the challenges faced in compliance with the FSSA can be put down as teething troubles, something which would be resolved over time.

(The writer is partner, Associated Law Advisers)