FSSAI – Enforcement Drive on Packaged Drinking Water

Packaged drinking water, or bottled water in common parlance, is among the most regulated products in India. Justifiably so, given that water, a basic essential could cause untold damage if it is not fit for human consumption. The Indian government has therefore mandated that the products of packaged drinking water must comply with the standards prescribed both by the Food Safety and Standards Authority of India and the Bureau of Indian Standards. Accordingly, packaged drinking water can only be manufactured and sold in compliance with the standards prescribed under the Food Safety and Standards Act, 2006 and under the certification mark of the BIS.

The BIS is a body which sets out standards in relation to various products and encourages such products to comply with the standards. A product with the BIS certification mark on it, only instils additional confidence in a consumer. It is also relevant to note that the standards prescribed by the BIS are voluntary, unless made specifically mandatory for certain products, as has been done in the case of packaged drinking water.

The FSSAI, not too long ago, issued an order in relation to bottling plants, manufacturing and selling ‘packaged drinking water’ in an unauthorised manner. The FSSAI had received multiple complaints that these concerned units have not obtained the appropriate licenses under the FSSA and the certifications from the BIS in terms of the Bureau of Indian Standards Act, 1986 (proposed to be repealed by the Bureau of Indian Standards Act, 2016).

The FSSAI has, based on the various complaints made, been undertaking the required checks in relation to water bottling plants and has, during the last week, issued a press release stating that the products of Aquafina, Kinley and Bisleri are being manufactured with the appropriate licenses and certification under the FSSA and the BIS. The press note also states that such checks would continue, in relation to other water bottling plants, to ensure the availability of safe packaged drinking water.

FSSAI Notice – Use of Food Additives

The Food Safety and Standards Authority of India has issued a notice on its website, on June 20, 2016, in relation to the operationalisation of standards of food additives for use in various food categories. This Notice seeks to substitute Regulation 3.1 of and Appendix A to the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and has to now be complied with in relation to all food products. The FSSAI has indicated that the Notice is required to be complied with till such time that appropriate amendments are made to the Standards Regulations in relation to the use of food additives. In addition, subsequent to the issue of the Notice, the FSSAI has also issued an order in terms of which it has directed all enforcement officials to implement the provisions of the Notice.

The FSSAI now requires food business operators to determine the food additives, which may be used in food products, on the basis of the details set out in the Notice. Notwithstanding this, the FSSAI has, interestingly enough, stated that all current provisions in relation to food additives, in relation to standardised food products, as set out in the standards in the Standards Regulations, would be suspended (except standards for foods for infant nutrition).

The uncertainties that now arise is whether, firstly, the FSSAI intends to suspend only those provisions which specifically permit the usage of food additives in specific food products, or also such provisions, set out in the specific standards, which expressly prohibit the usage of food additives in such food products; and, secondly, whether food products, in relation to which food additives were neither expressly permitted nor prohibited, may now contain such food additives.

A possible way of looking at this would be that all standardized food products may contain food additives, whether permitted or prohibited by the specific standards, provided that the food additives to be used are as permitted for that food category, in terms of the Notice. Further, those products for which nothing expressly was stated may also contain the permitted food additives. The flip side to this, however, would be that the scope of standardized food products would be altered in its entirety, which in all probability is not what the FSSAI intended.

Corrigendum to the FAQs on Proprietary Food Products

The FSSAI, during January 2016, brought about certain changes to the meaning and standards of “proprietary food products”, in terms of an amendment to the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. Subsequently, during March 2016, the FSSAI published a set of FAQs, on its website, in relation to proprietary foods, with the intention of providing certain clarifications on the meaning of the same. However, in addition to providing the clarifications, the FSSAI, through the FAQs, set out certain additional standards for proprietary food, such as in relation to the ingredients, food additives, etc., that may be used in the same. The position on proprietary foods was further complicated when the FSSAI, during the month of June 2016, issued a corrigendum in relation to the FAQ set out in relation to the kinds of ingredients that may be used in proprietary foods.

The corrigendum has the effect of providing that the addition of vitamins and minerals to proprietary foods may be allowed, up to a level of 100% of the Recommended Daily Allowance, provided there is no health claim on the label.

The Food Safety and Standards Act, 2006, mandates that the labels of food products shall not contain any statement or claim, concerning the food product, which is false or misleading. The same is reflected in the Food Safety and Standards (Packaging and Labelling) Regulations, 2011. In the absence of any specific prohibition, the obvious corollary is that a label may contain claims or statements, concerning the food product, so long as it is not false or misleading. This is an accepted industry practice since time immemorial and it would appear absolutely illogical to prevent a manufacturer from setting out any health related claims or benefits, for the information of consumers. Further, the FSSAI also requires such claims, if being made, to be capable of being substantiated with appropriate scientific evidence and places the onus of making true and scientifically sound claims on the person making the claim.This further questions the approach being taken by the FSSAI, by way of the corrigendum, where it is attempting to prohibit operators from making claims.

The question that now arises is whether a food business operator is bound to follow such an unreasonable direction issued by the FSSAI, which is against the provisions of the FSSA itself. Probably not, is what we would feel. The legality of these additional provisions in the FAQs and the corrigendum is highly questionable in view of the fact that the FSSAI has not followed the due procedure, as prescribed in the FSSA in relation to introducing the new provisions as set out therein. It is not very long ago that the Supreme Court in the Vital Nutraceuticals case struck down the FSSAI’s product approval process as being invalid and without the force of law, as the entire product approval mechanism was put together through advisories, clarifications and FAQ’s issued by the FSSAI, without following the due procedure.

Memorandum of Understanding – FSSAI & The Advertising Standards Council of India

The Food Safety and Standards Authority of India and the Advertising Standards Council of India, a self regulatory body committed towards protecting the legitimate interests of consumers, have recently signed a memorandum of understanding, to track and report misleading advertisements.

In terms of a press release, the FSSAI has stated that the ASCI would be able to take up and process consumer complaints in relation to misleading advertisements. In case of any non-compliance with the recommendations of the ASCI, based on its findings, the ASCI would report such non-compliance to the FSSAI, who would in turn take appropriate action against such food business operator under the Food Safety and Standards Act, 2006.

The alliance between the FSSAI and the ASCI should definitely bring about professionalism in relation to evaluation of advertisements, given that the ASCI comprises of members of high repute from the advertising industry. The ASCI, has so far had an impressive track record and a positive impact, in relation to misleading advertising, with more than a majority of advertisers having modified or withdrawn their advertisements, pursuant to complaints against such advertisements being upheld by the ASCI.

The memorandum of understanding, however, does not address the action that may be taken by the FSSAI against misleading advertisements, whether withdrawn or modified, based on the decisions of the ASCI. The FSSA clearly prohibits advertising of food products which are misleading or deceiving and a violation would result in the penalties set out there under. Thus, it may be concluded that the violation of the FSSA in relation to misleading advertisements would not be condoned by withdrawing or modifying the advertisement based on a decision of the ASCI.