Finalised Standards – Proprietary Food

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.

The New Plastic Rules – An Introduction

A new set of rules that could have various implications on the Indian food industry are the Plastic Waste Management Rules, 2016 which have been introduced and brought into force and effect during March this year, by the Ministry of Environment, Forest and Climate Change.

The new Plastic Rules supersede the Plastic Waste (Management and Handling) Rules, 2011. The Ministry has explained that the reason for the supersession is that the Government of India intends to provide and ensure a better framework for the management of plastic waste which is generated in India and to also reduce the amount of plastic waste that is being generated.

The Plastic Rules while introducing certain new concepts, with the intention of bringing about more regulation and also better managing the plastic waste being generated, also changes certain concepts and requirements that were present in the earlier Plastic Rules. One such significant change that has been introduced by the Plastic Rules is in relation to the thickness required to be maintained in relation to plastic carry bags. The earlier Plastic Rules prescribed a minimum thickness of 40 microns while the present Plastic Rules mandate a minimum of 50 microns. Further, the requirement to maintain the minimum thickness has also been extended to plastic sheets and covers made from plastic sheets. The Plastic Rules, have, however, provided an exception with compliance with the minimum thickness in cases where such thickness affects the functionality of the product.

The Plastic Rules now place more responsibility on local bodies and gram panchayats to ensure proper waste collection as well as treatment and disposal of plastic waste. The Plastic Rules also encourage waste generators, which includes any person generating plastic waste, to minimise the generation of plastic waste and to also segregate the plastic waste in accordance with the various rules that have been prescribed.

While there appear to be certain discrepancies and inconsistencies in the Plastic Rules, especially in relation to the registration requirements prescribed for various categories of persons, the introduction of the Plastic Rules is a step forward in minimising the plastic waste being generated in India. In addition, certain states are also taking up the matter more seriously by introducing a complete ban on the use of plastic items such as carry bags, spoons, plates, etc. One such state is the State of Karnataka which, in terms of a Notification dated March 11, 2016, imposed a complete ban on the manufacture and use of various kinds of plastic items such as cups, plates, spoons, banners, etc.

The Plastic Rules would have a considerable impact on the Indian food industry being one of the largest consumers of plastic material. The Plastic Rules, while keeping in mind its objective of better management of plastic waste being generated, has increased the obligations of manufacturers as well as users of plastic materials such as multilayered packaging material.

This write up is intended to provide a brief introduction to the Plastic Waste Management Rules, 2016. This write up will be followed by a more detailed one which will set out the discrepancies and inconsistencies present in the Plastic Rules as well as the increased obligations being placed on manufacturers and users of plastic materials.