The controversy surrounding Maggi has diverted the attention of everyone to two things. First to Nestle and second to the Food Safety & Standards Authority of India (FSSAI). People have come to know there exists a government organisation which is supposed to ensure the safety of the food we consume. While FSSAI has been in the news for quite some time now—especially in relation to the import of food items—but its name reached the masses with the Maggi controversy.
The duty of FSSAI is to regulate and monitor the manufacturing, processing, distribution, sale and import of food items, so as to ensure safe and wholesome food to the public. Under the Food Safety & Standards Act (FSS Act), FSSAI is empowered to make regulations, but the body can come out with the regulations only after the prior approval of the Centre and the same has to be laid before each house of Parliament for approval.
Of the various regulations brought by FSSAI, the Food Safety and Standards (Food Products Standards and Food Additives) Regulation has been a subject matter of dispute in many cases. This regulation provides standards for different kinds of inputs and additives allowed to be used in food articles. A reading of the regulation suggests that only those kinds of food items and additives are allowed which are specifically mentioned under the regulation. However, interestingly, under the regulation, an entry of “proprietary food” is also mentioned, which is defined to mean a food that has not been standardised under the regulation.
As of date, most legal issues and disputes have arisen due to the term “proprietary food”. Because of this definition of “proprietary food”, one cannot conclude that non-standardised foods are not allowed to be manufactured, imported or sold. However, at the same time, it can also not be concluded that all non-standardised food items are allowed to be manufactured, imported or sold. Only 377 food items are standardised and the rest would go under the term “proprietary food”.
This has led to various legal disputes. These cropped up especially because, at the time of transition from the Prevention of Food Adulteration Act to the FSS Act, the food standards and additive regulations were imported without a serious review. Therefore, as of date, what we have is an old regulation which was adopted some 40-50 years ago. The world over, different countries have included in their food safety laws a minimum of 5,000-10,000 standards and we are stuck with 377 only. If FSSAI wanted to correct this mistake, it would have had to go to Parliament for the approval—according to Section 93. So, it came out with a short-cut called product approval scheme.
This scheme was launched through an advisory and not through a regulation, which ideally should have been the case. Through this scheme, FSSAI tried to achieve three objectives.
One, the body improved its financial situation because the fee for each product approval was fixed at R25,000 (an additional R25,000 is payable when it is referred to the scientific panel). As only 377 products were standardised, soon FSSAI was flooded with product approval applications and the much-needed money.
Two, it started collecting the data on different kinds of foods thorough these applications, which probably India never had and for this had to incur no money; in fact, it was getting money for the same.
Three, the body tried correcting its gravest mistake of not updating the standards at the time of transition from the Prevention of Food Adulteration Act to the FSS Act.
The scheme also suited the industry as it allowed them to continue their businesses, which otherwise might have shut down or would have been highly susceptible to corruption. This arrangement suited both the regulator and the regulated until a company called Vital Neutraceuticals decided to the challenge the same before the Bombay High Court. The court held the scheme as ultra vires because the procedure laid under Section 92 and Section 93 was not followed, i.e. it was not placed before Parliament and approval was not taken. On appeal, FSSAI approached the Supreme Court. The result: the judgment of the Bombay High Court was stayed and the matter is pending for final hearing. So, as on date, the product approval scheme is running and FSSAI does not allow anyone to manufacture, import or sale non-standardised food products without product approval. It is because of this stand of FSSAI that Nestle was forced to withdraw “Maggi Oats Masala Noodles with Tastemaker”.
Here, one very important thing went unnoticed—the nature of the product approval scheme. If one analyses the product approval system existing in different countries, then one would see that such a system exists only for novel food items or ingredients. Meaning thereby, from a particular date, the food authority notifies the list of food articles, ingredients and additives, etc, which are known to have been used as food and are considered safe. If any food item, ingredient or additive is sought to be included by food business operator, then it will have to apply for product approval and it would also have to pay a fee which would be utilised for analysing the safety of a particular food item.
But FSSAI did not bother to come out with any such list of known food items, ingredients and additives. The body asked everyone to apply for product approval of even those food items, ingredients and additives which were already in use at the time of implementation of the regulations. The purpose of doing the same could have been to create a database at the cost of food business operators.
However, through this scheme, FSSAI is unduly enriching itself at the cost of food business operators. Under Appendix A of the Food Standards and Additive Regulations, food-category-wise usage of additives has been specified. In the same manner, FSSAI should update the list of accepted additives. However, FSSAI is not doing so and is asking every manufacturer and importer to take approval separately for the same additive to be used in similar products. The reasoning given for this is that the said food product is exclusive to the applicant and FSSAI is restrained from sharing the same.
Prima facie, it might look convincing, but the logic is incorrect for the reason that the job of FSSAI is to specify whether a particular ingredient or additive is allowed to be used in a particular kind of food or not and, if yes, then in what quantity.
Here, FSSAI is not specifying to the food business operators as to what all ingredients or additives are allowed and, taking advantage of this fact, it must be earning money for approving the same ingredient or additive from 10 or 100 different food business operators.
FSSAI has been lethargic and inefficient in the past and it can be because of many reasons such as financial constraints, untrained manpower, etc. But now it has started to pick up. In the last 2-3 months, one can definitely see a change in the working of FSSAI; its website appears more active and seems to be giving more clarity to the industry and consumers. Despite this, there is lot more to improve and one would hope that soon FSSAI starts quoting its own advisories in its orders rather than relying upon that of some other country.
The author is an advocate and can be contacted at kunal@jlfs.in
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