The Form and Format of the FSSAI License Number

The Food Safety and Standards Authority of India (FSSAI) amended the provisions of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 (Labelling Regulations) in June, 2013, to specifically include provisions in relation to setting out the FSSA license number on packages of food. The provision, in addition to requiring the license numbers to be set out, sets out a specific form and format for the same.

The FSSAI , to provide more clarity on the manner in which the license numbers  must be set out on labels, issued a clarification and advisory in October, 2013. This clarification and advisory was later replaced by another clarification and advisory issued in June, 2014. It must be noted here that the clarification issued by the FSSAI requires certain additional compliances/ declarations to be set out on labels, which are not, today, present in the Labelling Regulations.

To sum it up, the manner in which the FSSA license numbers are presently required to be set out is governed by the Labelling Regulations and the clarification of June, 2014. On a combined reading of the provisions in the Labelling Regulations and the clarification, one particular issue that one would notice is that the form and format of setting out the primary FSSA license number is set out in a different manner in the clarification, as compared to the Labelling Regulations.

The question that would naturally follow from the above would be as to which format is required to be adopted by food business operators, which would ensure that they have complied with the Labelling Regulations. While it could be stated that any format could be complied with, as both the formats have been issued by the FSSAI, we hold the view, that the correct format which must be followed is the one set out in the Labelling Regulations and not in the clarification. This is for the reason that, based on the principles of law, the clarification is supposed to merely ‘clarify’ the provision in relation to which it is issued and should not, ideally, set out any new provisions of the law.

The above would then, however, lead to a bigger question as to whether all the other provisions as set out in the clarification and do not find any mention in the Labelling Regulations must be complied with by food business operators. These provisions would include the manner of setting out the FSSA license numbers when multiple units are involved with a product, the minimum height of the letters and numerals, etc.

In view of the above, we strongly believe that the FSSAI, keeping in mind its history with issuing regulations and making law through guidelines and orders, should adopt the proper procedure and take appropriate steps to include the various new provisions, as contained in the clarification, in the Labelling Regulations. This would ensure that the provisions intended by it to be complied with, are indeed adequately complied with.

Import Regulations

The Food Safety and Standards Authority of India (FSSAI) has now notified the Food Safety and Standards (Import) Regulations, 2017 and has made the same effective from March 10, 2017. This effectively concludes the process initiated by the FSSAI in the year 2016 during which it had issued various notices in relation to the operationalisation of the Import Regulations and also a set of draft regulations calling for comments and suggestions.

In terms of a press release, the FSSAI has stated that the Import Regulations have been notified for the purpose of streamlining the process of clearance of imported food in an efficient and transparent manner. It would be important to note that whilst the Import Regulations have just been notified, the FSSAI has been regulating the import of food products at various ports through its ‘Food Import Clearance System’. Importers of food products have faced various difficulties, in the past, due to a lack of clarity in relation to certain aspects of imports. The Import Regulations, it is hoped, would remove these difficulties and make the process of import efficient.

The Import Regulations would be applicable to all food products being imported into India and among other things sets out the licenses required and the procedures to be followed for the import of food products, shelf  life of imported food products, the labelling declarations required to be set out on packages being imported, etc.

The FSSAI has however not provided any specific time period for compliance with the Import Regulations which would imply that the Regulations must be complied with immediately.

Guidelines – Operations of E-commerce food business operators

The Food Safety and Standards Act, 2006 (FSSA) was drafted and brought into force and effect based on the erstwhile Prevention of Food Adulteration Act, 1954. As a result, many of the provisions, as were contained in the erstwhile law were retained and the FSSA, accordingly, was founded on the traditional ‘brick and motar’ format of business, as food products were then dealt with. The FSSA therefore, as argued by many, did not expressly relate to the ‘modern’ (if it may be called) way of doing business.

The ‘modern’ way of doing business today involves consumers transacting online through laptops, smart phones and other internet enabled devices. It is not surprising that the rapid development of transacting business online, led to food business operators finding their way onto the online marketplace or ‘e-commerce platforms’, as commonly known and, today, different kinds of food products can be bought online and through e-commerce platforms, by the mere click of a button.

The question that has always perplexed many a people operating these e-commerce businesses is as to whether the FSSA does indeed apply to food business being undertaken through online stores/ e-commerce platforms. To this, we would say that going by the intent of the law makers, the FSSA would ideally apply. In view of the manner in which the term ‘food business’ has been set out in the FSSA, almost any and every kind of food business carried on, in India, will fall under and within the ambit of the FSSA.

In order to get past the uncertainty in relation to the applicability of the FSSA to e-commerce food business operators, the FSSAI has, during February 2017, attempted to provide clarity on this by issuing a set of guidelines for the operations of e-commerce food business operators. These guidelines cast obligations on e-commerce food business operators such as registration and licensing, supply chain compliance, food product listing and information, etc.

The FSSAI has however stated that the guidelines are to be read only as an explanatory memorandum and not in supersession or replacement of any of the provisions of the FSSA, the rules and the regulations. The aforesaid, unfortunately, whilst clearly establishing the intention of the FSSAI to clarify the applicability of the FSSA to the operations of e-commerce food business operators, leaves one wondering as to whether the same would have the true force of law.

On a perusal of the guidelines, it would appear that the FSSAI is, with the best of intentions, trying to make the law, in relation to e-commerce food business operators, through these guidelines. The question, therefore, would be as to whether these guidelines, which appear to be setting out the law, are required to be complied with by all e-commerce food business operators, as if complying with the law. It may be recalled that, in the past, the Supreme Court has held that the FSSAI does not have the power to issue such guidelines that have the effect of creating regulations without following the procedure mentioned in the FSSA, i.e., by placing such regulations before the Parliament, as required in terms of the FSSA.

In the interests of providing true clarity to e-commerce food business operators, it would therefore be imperative for the FSSAI to crystallise the guidelines, into a set of duly made regulations, applicable to e-commerce food business operations. The same would not only ensure due compliance but would also be the basis of creating a structured legal framework in relation to the sale of food products online.