Tartaric Acid and Ascorbic Acid are food additives that are permitted to be added to wines

Tartaric Acid and Ascorbic Acid are food additives that are permitted to be added to wines - Statutory authorities should act in manner that is fair, so that it encourages foreign investment which ultimately leads to economic growth: HC

MUMBAI, AUG 03, 2015: THE Petitioner Company is in the business of manufacturing, selling and importing various types of alcoholic beverages including established international brands such as "Jacob's Creek" .

By way of the present Petition, petitioner seeks an issuance of an appropriate writ for release of its wine products by the brand name of Jacob's Creek . These wine products are currently withheld by the Commissioner of Customs, NhavaSheva Port, Mumbai on the ground that Food Safety and Standards Authority of India (FSSAI) has refused to issue a No Objection Certificate (NOC) with respect to these wine products that are imported by the Petitioner. The ground on which the NOC has been refused is that the sample contains "Acidity Regulator: Tartaric Acid (INS334)" and "Antioxidant: ISO Ascorbic Acid (INS315)" which are not permitted as per Appendix A, Table No.3, Row No.14 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (hereinafter referred to as the "FSSR, 2011" ).

It is the case of the Petitioner that Tartaric Acid as well as Ascorbic Acid are ingredients that are permitted under the FSSR, 2011 and it is in these circumstances that the Petitioner has prayed that a writ of mandamus be issued directing the authority concerned to issue the NOC and further directing the Commissioner to release the said consignments.

The Petitioner holds a valid licence issued by FSSAI and has been importing Jacob's Creekbrand of wines for more than a decade and the formulation of the said wines has not changed ever since its first import. Up until October 2014, the Petitioner was given the NOC for import of this wine.

Elaborate submissions were made by both sides.

The High Court observed that the short question that needs to be answered in this Petition is whether Tartaric Acid and Ascorbic Acid are food additives that are permitted to be added to alcoholic wines under the FSSR, 2011.

After narrating the genesis of the Food Safety and Standards Act, 2006, the High Court extracted the provisions of s. 3 [Definitions], s. 19 [ Use of food additive or processing aid.] , s.22[ Genetically modified foods, organic foods, functional foods, proprietary foods, etc .].

Adverting to Regulation 3.1.1(1) of the FSSR, 2011, the High Court observed that in terms of the same, food products may contain food additives as specified in the Regulations and in Appendix 'A' and further Regulation 3.1.1(4) permitted the use of food additives in different foods and stipulated that the products mentioned therein may contain food additives permitted in the FSSR, 2011 and in Table 3 of Appendix 'A'. Inasmuch as “Alcoholic wines” are listed asitem (x) of Regulation 3.1.1(4) and, therefore,it is clear that Regulation 3.1.1(4) allowed food additives to be added to alcoholic wines.

Further, Regulation 3.1.12(ii) deals with 'buffering agents' and stipulates that they are materials used to counter acidic and alkaline changes during storage or processing steps, thus improving the flavour and increasing the stability of foods andthat in the Table appended to Regulation 3.1.12, Tartaric Acid finds a specific mention and can be added as an acidulant provided the maximum level of use is 600 ppm. The Note below the said Table also clearly states that Tartaric Acid shall not be added to any food meant for children below 12 months and, therefore,it is reasonable to presume that if the intention was to prohibit the use of Tartaric Acid for any other persons or in respect of any particular food, it would have then so provided clearly.

The High Court noted that it was not the case of FSSAIthat levels of Tartaric Acid in the alcoholic wines imported by the Petitioner are greater than 600 ppm.

The submission of the respondent that since Tartaric Acid is not an ingredient finding place in Appendix 'A', Table 3, Row 14 (alcoholic wines), the same is a prohibited product and, therefore, cannot be permitted to be used as a food additive in alcoholic wines was not accepted in view of the fact that the Regulations themselves contemplate food additives being added to alcoholic wines [Regulation 3.1.1(4)] and Tartaric Acid is specifically listed as a buffering agent which could be used in food products provided the levels do not exceed 600 ppm [Regulation 3.1.12 r/w the Table appended thereto].

The High Court also sought to place reliance on another ‘intrinsic evidence' and in this regard observed thus -

"…Some time in the year 2012, draft Regulations have been framed known as the Food Safety and Standards (Alcoholic Beverages Standards) Regulations, 2012. We must state here that these Regulations have not yet been placed before Parliament and hence do not have the force of law. However, these draft Regulations, and which have been prepared by Respondent No.2 under section 16(2) of the said Act, itself contemplate Tartaric Acid being permitted in wines as set out at item No.3 of Table 2 of the said draft Regulations. We, therefore, are clearly of the view that Tartaric Acid is permitted as a food additive to alcoholic wines and the contention of Respondent No.2 that it is a prohibited product is not borne out either under the provisions of the said Act or the FSSR, 2011 framed thereunder."

On the same reasoning, it was held that Ascorbic Acid is also a permitted food additive which can be added to alcoholic wines as an antioxidant as set out in Regulation 3.1.5(2).

Before concluding, the High Court also mentioned that its decision is supported by a decision of another Division Bench in case of Parle Biscuits Pvt. Ltd. v/s Food Safety and Standards Authority of India and others. 2013 (2) Mh.L.J. 409 : 2013 (3) Bom.C.R.314wherein it was held that Lactic Acid was a permissible ingredient in sugar boiled confectionery and that the use of the word "and" in Regulation 3.1.1(1) did not indicate that a food additive must be stated to be permissible in food products, both in the Regulations and in Appendix 'A' and that the SLP (Civil) No.1427/2013 filed by was withdrawn by the State of Maharashtra through Commissioner, on 28th January, 2013.

The High Court also had a note of caution for the respondent FSSAI. The Bench observed that it was a fit case in which costs ought to have been imposed on Respondent and in favour of the Petitioner but considering that Respondent is a statutory authority constituted under the provisions of The Food Safety and Standards Act, 2006 to ensure that safe and wholesome food is supplied to the consumers, the High Court refrained from doing so.

The High Court further added –

+ Respondent being a statutory authority cannot act in an arbitrary fashion disregarding the law under which it was constituted.

+ Respondent, being the watchdog for the consumer as well as a regulator of the food industry, ought not to take an adversarial approach. In this matter, we find that despite Tartaric Acid and Ascorbic Acid being clearly included in the Regulations, and the fact that the Petitioner's alcoholic wines have been imported in this country for over a decade without any complaint or untoward incident.

+ Respondent ought to have looked at the Regulations framed by them, a little more carefully before refusing to give the NOC to the Petitioner.

+ The only reason we say this is because in today's global reality India's borders have opened to international business. It is, therefore, important that the statutory authorities act in a manner that is fair, transparent and with a proper application of mind, so that it encourages foreign investment which ultimately leads to the economic growth of the country.

The Writ Petition was allowed.