All posts by Subaya & Janini

Pending Cases – Repealed Enactments

The Food Safety and Standards Act, 2006, on its coming into force, repealed various existing enactments and orders, including the Prevention of Food Adulteration Act, 1954, the Fruit Products Order, 1955, the Meat Food Products Order, 1973 and the enactments/ orders set out in the Second Schedule to the FSS Act.

The Food Safety and Standards Authority of India has taken note of the fact that a large number of cases under these enactments/ orders are pending before various courts and tribunals, across the country. In a circular issued to all the Commissioners of Food Safety, the FSSAI had stated that in many of these cases the offences committed are not very serious and further the penalties/ punishments that have been prescribed are also not substantial and that the pendency of these cases, in addition to creating a burden on the judicial system, also requires the time and the resources of the Government in pursuing the matters. The FSSAI is keen on ensuring that these resources are used towards the implementation of the FSS Act such that consumers receive safe and wholesome food.

The FSSAI has therefore asked all Commissioners of Food Safety to examine the pending cases under the repealed enactments/ orders and ascertain as to whether the said cases may be withdrawn. The findings of the Commissioners of Food Safety are however yet to be made public.

This move of the FSSAI comes across as a practical solution to reducing the number of outstanding cases thereby enabling the FSSAI to channelise its energies and resources in the right direction. The circular, that was issued earlier this year, is however not to be confused as a mass amnesty scheme and it should be clearly understood that there would no automatic withdrawal of pending cases.

 

Caffeinated Beverages – Standardised Food Products

The Food Safety and Standards Authority of India has issued a notification dated December 2, 2016, and published in the Official Gazette on December 6, 2016, in relation to amending the provisions of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, to include standards for caffeinated beverages.

The standards are being set out under the category of ‘Beverages Non-Alcoholic – Carbonated’ in the Standards Regulations. The inclusion of these standards, for caffeinated beverages, would mean that products which fall within this category may now be manufactured as ‘standardised food products’ in terms of the FSS Act.

The notification states that while the standards would come into effect from December 6, 2016, food business operators are required to be in compliance with the provisions of the regulations by July 1, 2017.

Use of Newspaper as Packaging Material

The Food Safety and Standards Authority of India has, today, issued an advisory cautioning the use of newspapers to wrap, pack and serve food products. The FSSAI recognises that it is common practice to use newspapers as packaging material, however, it has stated that the same is resulting in consumers being slowly poisoned in view of the ink, colours and pigments used in the newspapers.

The FSSAI has recognised the fact that newspapers could be contaminated with metallic contaminants, mineral oils and other harmful chemicals, which could cause serious medical problems, especially with older people and children.

The FSSAI has stated that newspapers must not be used to wrap, cover or serve food products and must also not be used as absorbent paper for absorbing the excess oil in case of fried foods. The FSSAI has requested all Commissioners of Food Safety in the states and union territories to initiate a campaign to generate awareness amongst the people and to discourage the use of newspapers in relation to food products.

Proprietary Food – The Final Regulations

In a previous post, we had discussed a direction issued by the Food Safety and Standards Authority of India, in August this year, in relation to the ‘finalised standards’ for proprietary food products. The post, among other things, discussed the gaps in the direction, specifically in relation to whether the same was enforceable and was issued by the FSSAI in accordance with the procedure and requirements of the Food Safety and Standards Act, 2006.

The FSSAI has now, as on October 13, 2016, issued a final notification which amends the provisions set out in the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, which specifically sets out the meaning and standards for proprietary food products. These provisions will now be the final provisions that would apply to proprietary food products and would supersede earlier notifications, orders and directions issued by the FSSAI.

The provisions of this notification are the same as compared to the earlier direction issued by the FSSAI, with the exception of the provisions in relation to health claims. While the earlier direction prohibited all types of health claims to be made in relation to the products, whether on the label or otherwise, this notification now permits health claims to be made, whether on the product label or otherwise, as long as the same is substantiated with adequate and scientific evidence.

The above change made by the FSSAI to the regulations as were set out in the direction, comes as a welcome relief to the food industry. As we had stated earlier, it did not seem logical as to why the FSSAI was preventing such food products from making health claims while the main Act, the FSS Act, itself permits such health claims, as long as the same are capable of being substantiated with adequate and scientific evidence. It appears that the FSSAI has now kept the final regulations in tune and in line with the main Act, the FSS Act.

In addition to the above, while this notification states that the final regulations and provisions would come into force on the date of the publication in the Official Gazette, i.e. October 13, 2016, it appears that the FSSAI has provided time to food business operators to comply with the same until July 1, 2017. This would, in our view, imply that the enforcement activities in relation to proprietary food products complying with these regulations would be undertaken only subsequent to July 1, 2017.

Relaxation – Use of Old Packaging Material

The Food Safety and Standards Authority of India (FSSAI) has issued an order dated November 23, 2016 based on several representations received from various stakeholders in relation to the use of old packaging material.

In terms of the applicable requirements under the Food Safety and Standards Act, 2006 (FSSA), the name, address of manufacturers/ packers, etc., and their FSSA license numbers are required to be set out on the packages of various products. Further, in the event that any of the aforesaid details undergo any change, the said change must be reflected on the packaging material.

The FSSAI has now recognised the fact that a lot of the pre-printed packaging material with the details of the old name, address and license number gets wasted as the same is not permitted to be used in terms of the applicable laws. Keeping this in mind, the FSSAI has now stated that, on the requisite application made to it and on paying the required fees, it would permit food business operators to use the pre-printed packaging material with the old details printed on the same, for a period of 6 months which may be extended by a period up to an additional year.

This is a welcome step taken by the FSSAI as it would, in addition, to helping food business operators also benefit the environment and reduce the amount of waste being generated in view of the change of the name, address or license number of a food business operator.

Standards For Packaged Drinking Water – Substituted

The Food Safety and Standards Authority of India (FSSAI), has, as on November 15, 2016, substituted the standards set out for packaged drinking water in terms of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (Standards Regulations).

The notification states that the substitution would come into force on or after March 1, 2017.

While it is clear that the standards for packaged drinking water are being substituted and that the new standards would have to be complied with by food business operators dealing with packaged drinking water, there appears to be an ambiguity in relation to the date on which this substitution would come into force, in view of the use of the terms ‘on or after March 1, 2017’. It is unclear as to whether the FSSAI would issue another notification prior to, on or after March 1, 2017, setting out the date on which the standards would come into force. Nevertheless, food business operators, we feel, must start compliance with the new standards as soon as possible and in any event before March 1, 2017.

Food Safety and Standards (Alcoholic Beverages Standards) Regulations, 2016

fss-alcoholic-beverages-standards-regulations-2016The Food Safety and Standards Authority of India (FSSAI) has issued a set of draft regulations being the Food Safety and Standards (Alcoholic Beverages Standards) Regulations, 2016, dated September 5, 2016 and published in the Official Gazette on September 6, 2016.

The FSSAI through the draft regulations intends to regulate both distilled and un-distilled alcoholic beverages such as brandy, beer, rum, vodka, whisky, wines, etc. The FSSAI has invited comments and suggestions on the draft regulations to be sent to it within a period of 30 (thirty) days from September 6, 2016.

The FSSAI by issuing regulations in relation to alcoholic beverages and setting out standards for the same has brought such beverages within the ambit of “food” in terms of the Food Safety and Standards Act, 2006 (FSSA). It will be interesting now to wait for the final regulations and standards to be issued by the FSSAI and also to understand the manner in which the FSSAI would enforce the regulations, as there have not been specific regulations governing alcoholic beverages in the past whether the Prevention of Food Adulteration Act, 1954 or the FSSA.

 

Minimum Area of the Principal Display Panel – FSSA or Legal Metrology

Legal  MetrologyThe term ‘principal display panel’, very simply put, is that panel of a package on which all the label declarations, as required, must be set out, for the information and use of the consumer.

The FSSAI, in terms of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011, requires the principal display panel of all food products to be of a minimum size. The details of the size and other requirements have been set out in the Packaging and Labelling Regulations. However, the Department of Legal Metrology, which also requires certain information to be set out on the principal display panel of packages, does not require the said principal display panel to be of a minimum size. As a result, the food industry has been complying with the requirements in relation to the minimum area of the principal display panel, as per the provisions of the Packaging and Labelling Regulations.

A recent amendment to the Legal Metrology (Packaged Commodities) Rules, 2011 has introduced a provision, in terms of Rule 7(5), which deals with the manner in which the area of the principal display panel is to be calculated, for the purposes of determining the height of the lettering of the label declarations. This has caused a considerable amount of confusion in the food industry, with some taking an interpretation that the Department of Legal Metrology has prescribed a ‘minimum area’ to be maintained, in relation to the principal display panel.

We however tend to disagree with the interpretation that a ‘minimum area’ for the principal display panel is required to be maintained, in terms of the Packaged Commodities Rules. First, it must be noted that this new sub-rule has been set out in Rule 7, which primarily relates to the minimum height of the letters and numerals required to be set out in various declarations. Second, the new sub-rule, no where states that the minimum area of the principal display panel must be as per the method set out therein. Rule 7(5) merely states that area of the principal display panel must be calculated and decided in the manner set out therein.

A careful reading of Rule 7 indicates that the Department of Legal Metrology has set out a formula, based on which the height of numerals is required to be calculated for various declarations. Rule 7(3) in Table II sets out the manner in which the height of numerals is required to be calculated in the event that the net quantity of a particular product is set out in length, area or number. In such cases, the minimum height of the numerals, in the various declarations, is dependent on the area of the principal display panel. This concept of ‘area of the principal display panel’ was earlier not set out anywhere in the Packaged Commodities Rules and therefore led to confusion in compliance. The Department of Legal Metrology, therefore, to clarify the said concept and to set out the manner in which the same is required to be calculated and determined, introduced sub-rule (5) to Rule 7, which merely states the manner in which the area of the principal display panel must be calculated and determined.

To conclude, in our view, the Department of Legal Metrology has not prescribed a minimum area of the principal display panel but has instead clarified the manner in which the height of numerals is required to be set out, in relation to those products where the net quantity is set out in area, length or number. The minimum area of the principal display panel would continue to be governed by the Packaging and Labelling Regulations.

Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011


The Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 have been amended, with effect from August 26, 2016, in relation to the radiation of food products.

The Food Products Standards Regulations, in terms of Regulation 2.13, set out the details in relation to irradiation of food such as the dose of irradiation, the products that could be subjected to irradiation etc. The amendment now has the effect of substituting the entire regulation and new provisions have been set out in relation to the radiation of food products.

Interestingly, the provisions in the Food Products Standards Regulations also set out the specific manner in which certain label declarations are required to be set out on such packages of food. The appropriate and consequent amendments have been made to the Packaging and Labelling Regulations removing the earlier details set out in relation to the labelling of food that has been subjected to radiation.

Food Safety and Standards (Prohibition and Restriction On Sales) Regulations, 2011

Fruits

The Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011 has, with effect from August 26, 2016, been amended in relation to the prohibition of the use of carbide gas in the ripening of fruits and the manner in which blended edible vegetable oils may be sold.

The Prohibition Regulations have always prohibited the use of acetylene gas (commonly known as Carbide Gas) to artificially ripen fruits. The recent amendment to the Prohibition Regulations now permits fruits to be artificially ripened by the use of Ethylene Gas, however at a concentration of up to 100 ppm (100μl/L), depending upon the particular crop, the variety and the maturity.

In addition to the above, the Prohibition Regulations used to mandate that blended edible vegetable oil must be sold in sealed packages, with a volume of not more than 15 litres. The Regulations now have been amended whereby edible blended vegetable oil, whilst still being in sealed packages, be sold in quantities which must not exceed 15 kilograms.