In an earlier post we had dealt with the ‘Corrigendum to the FAQs on Proprietary Food Products’, wherein the Food Safety and Standards Authority of India had replaced certain provisions contained in a set of FAQs, which were used by the FSSAI to patch up the new standards for proprietary food products, earlier introduced in terms of a notification during January 2016. The FSSAI has now, in terms of a direction dated August 22, 2016, issued what they term as ‘finalised standards’ in relation to proprietary food products.
It is interesting to note that the standards set out in terms of the January notification were valid only for a period of six months, i.e., till July 15, 2016. If a straightforward interpretation of the provisions of the Food Safety and Standards Act, 2006 is to be taken, then there were no revised standards for proprietary food products for the period between July 15, 2016 till August 22, 2016 and the provisions as were initially contained in the Food Standards Regulations would apply. It must be noted that the original standards are much broader in scope as compared to the standards that the FSSAI has evolved. However, one could also argue that as on date there are no new standards and the original standards continue to apply, in view of the questionable manner in which the direction has been issued (discussed in detail below).
As the standards set out in the January notification were valid only till July 15, 2016, the FSSAI issued a set of draft regulations, which contained the new standards. The draft regulations were issued by the FSSAI following the proper procedure in terms of the Food Safety Act and proposed to amend the Food Standards Regulations (i.e. the regulations which set out the initial standards for proprietary food). The FSSAI invited comments and suggestions from the public, in relation to this draft and the same was to be provided by May 27, 2016.
The FSSAI should have ideally issued the regulations amending the Food Standards Regulations, after considering the comments and suggestions. However, neither was any amending regulations issued, nor was any clarity provided by the FSSAI in this regard.
In an attempt to plug the gap mentioned above, the FSSAI has issued the direction on August 22, 2016, in terms of which it has stated that it has now finalised the standards in relation to proprietary food products and is making the same operational on and from August 22, 2016. These finalised standards have been enclosed with the direction issued by the FSSAI and all enforcement officers have been instructed to enforce these new standards. The FSSAI has stated that it is in the process of issuing the final notification in terms of which it would amend the Food Standards Regulations.
The finalised standards issued by the FSSAI, are a mix of the earlier standards issued in terms of the January notification, the FAQs, and we presume, the comments and suggestions received by the FSSAI on the draft regulations. While most of the provisions are similar to the ones set out in the earlier standards and the FAQs, one drastic change that the FSSAI has introduced is in relation to ‘health claims’. As mentioned in our earlier post, the FSSAI had prevented food products that contained added vitamins and minerals from making any health claims. This, we felt, was clearly against the other provisions of the FSSA, for the reasons earlier stated by us.
The FSSAI has now gone a step ahead and has stated that all proprietary food products are not permitted to make any health claims whatsoever, and the same is not related to the use or addition of vitamins and minerals. One can now only wonder why the FSSAI has gone so far in restricting the use of scientifically substantiated health claims which is otherwise permitted by the FSSA and the regulations made thereunder.
In our view, and from a legal perspective, the finalised standards issued by the FSSAI as a ‘direction’ seeks to direct enforcement officers to enforce the finalised standards as set out in the direction. The question that now arises is whether these finalised standards, in the absence of a final notification, could be enforced given that such finalised standards could only be brought in by amending the Food Standards Regulations, through the due process of law.