Category Archives: Amendments and Updates

Dual/ Differential Maximum Retail Sale Price

Consumers, in India, have in the recent past had a concern in relation to FMCG and, in particular, food products being made available by manufacturers, at different prices in different places. The complaints have been with regard to products being sold at cinema halls, malls, airports etc., at higher prices as compared to the same products at regular retail shops. The Department of Legal Metrology has, in the recent past, pulled up such sellers but was unable to bring these matters to logical closure as the Legal Metrology Act, 2009 and the Legal Metrology (Packaged Commodities) Rules, 2011 (PC Rules) did not provide for the regulation of dual/ differential pricing.

The Ministry of Consumer Affairs, through a recent amendment to the PC Rules, introduced a provision regulating the dual/ differential pricing of products. This provision prohibits manufacturers, packers or importers from declaring different prices on identical commodities. The prohibition is, however, subject to the pricing being arrived at by adopting restrictive or unfair trade practices as have been set out in the Consumer Protection Act, 1986.

The above would mean that a manufacturer, packer or importer is prohibited from using a dual/ differential maximum retail sale price in relation to an identical commodity, by using restrictive or unfair trade practices as per the Consumer Protection Act. As a consequence, it would appear that a manufacturer, packer or importer may continue to have differential prices in relation to an identical commodity as long as there is an adequate justification for the same, which results in an increased cost from the factory to the shelf, provided the same is not coloured by unfair or restrictive trade practices.

The amendment is being brought into force from January 1, 2018 and manufacturers would, from such then on, have to ensure that all their products are in compliance with this provision.

Smart Consumer App – FSSAI

The Food Safety and Standards Authority of India (FSSAI) is attempting to ensure that consumers receive the maximum information in relation to the products that they intend to purchase. In this regard, the FSSAI is establishing a network integration with the ‘Smart Consumer App’, which would provide consumers with the desired information.

The ‘Smart Consumer App’ has been developed by the Ministry of Consumer Affairs in the year 2016 along with GS1 India (a body that has been set up to issue barcodes), and the function of the app involves a consumer scanning the bar code set out on any package or entering the Global Trade Index Number (GTIN), and receiving information in relation to the product. The information could relate to the statutory declarations required to be set out on a package or information in relation to a package of food being recalled by the manufacturers etc. The detailed intention of the FSSAI has been set out in a press release issued by the FSSAI on September 12, 2017.

The FSSAI is encouraging manufacturers, suppliers and such persons to start providing the required information to GS1 India so as to integrate the barcode and the GTIN with the information, for the consumer information and use.

Conflict – Minimum Height of Letters and Numerals

A packaged product is required to convey certain consumer relevant information through its label. The lettering used to set out such information has been subject to regulation by the Department of Legal Metrology, and in case of food products, the FSSAI as well. These regulations presently prescribe a minimum size of the letters and numerals based on either the net quantity of the product, or the area of the principal display panel.

The Legal Metrology (Packaged Commodities) Rules, 2011 (PC Rules), as mentioned in an earlier post, has now been amended in relation to the minimum height of such letters and numerals. The recent amendments to the PC Rules, which come into effect from January 1, 2018, require that the minimum height of the letters and numerals are to be determined solely on the area of the principal display panel. The manner in which the area of the principal display panel is required to be calculated is also set out in the PC Rules.

The above amendment poses a challenge, specifically in relation to food products, where the minimum height of the letters, under the FSSA, in relation to all the declarations are required to be maintained at 1 millimetre, regardless of the size of the package of the product, whereas the minimum height of the letters in relation to the declarations under the PC Rules would change depending on the area of the principal display panel. This would mean that the declarations being set out on a package would be of different sizes thereby compromising on the aesthetics of the same.

In addition to the above, the PC Rules previously had provided an exemption whereby in the event that any other law governed the minimum of height of the letters and numerals of a declaration, the said law would be applicable as against the PC Rules. This exemption has been retained, however, with a qualification, whereby certain declarations have to mandatorily comply with the PC Rules, notwithstanding the fact that the minimum height of the letters and numerals of the same are also governed by another law.

An example of the above would be the ‘net quantity’ declaration which is a mandatory declaration, both under the FSSA and the PC Rules, and the minimum height of the letters and numerals of the same are governed by both the laws. The question that would therefore arise is in relation to which law is required to be complied with, i.e., whether the requirements under the FSSA or under the PC Rules. Whilst the key to this may be looked for in the principles of statutory interpretation, it appears that this conflict has been overlooked while amending the exemption provision set out in the PC Rules.

In conclusion, it appears that the only possible way in which both the FSSA and the PC Rules can be complied with is if the law requiring greater compliance is followed. However, it may also be argued that as there is a specific law governing food products, and that PC Rules recognises the same, and permits certain other declarations, such as the name of the product, to only be governed by the FSSA, the PC Rules must ideally continue to recognise the same in relation to all the declarations and permit conflicting provisions in relation to food products to be governed only by the FSSA.

Legal Metrology (Packaged Commodities) Amendment Rules, 2017

The Ministry of Consumer Affairs, Food and Public Distribution (Department of Consumer Affairs), has, as on June 23, 2017, issued the Legal Metrology (Packaged Commodities) Amendment Rules, 2017. The amendments being made to the Legal Metrology (Packaged Commodities) Rules, 2011 would come into force and effect from January 1, 2018.

The Packaged Commodities Rules, in view of the amendments made, will now take into its fold various new concepts such as the concept of dual retail sale price, the buying and selling of products through e-commerce websites etc.

Licenses for Proprietary Food

The Food Safety and Standards Authority of India (FSSAI) has now set out the meaning and standards for proprietary food products very clearly in the regulations. The FSSAI has, however, not set out the resultant implications in relation to the issue of licenses required for the manufacture of such products.

Proprietary food products, as a concept, have been in existence even prior to the Food Safety and Standards Act, 2006 (FSSA) being brought into force and effect.

An obvious implication of the new meaning and standards for proprietary food products, that were set out by the FSSAI, was the requirement for food business operators to re-evaluate each of their products and ascertain as to whether they continue to remain proprietary. The FSSAI, however, did not require, by way of any law or order, for these food business operators to reapply or make any changes in relation to the license for the manufacture of the products, if they continued to be proprietary food products.

The FSSAI, has now, recently updated the online licensing system and has set out a separate category for proprietary food products, novel foods, etc. This is an excellent move by the FSSAI as now there is a clear and express route that can be used for applying for a license in relation to the different kinds of food products. The FSSAI, however, did not make any provision for those food products that were granted licenses prior to the online licensing system being updated, nor did the FSSAI provide any clarity for those food business operators who had licenses issued for products, prior to the new meaning and standards being introduced, and which products continued to be proprietary under the new law.

The FSSAI, however, now requires that these issued license holders approach the FSSAI and apply for a modification of their licenses for the reason that the proprietary food products being manufactured are not under the category as required by the updated licensing system and the FSSAI as on today. Whilst there is no order or communication in this regard, food business operators find this being required of them on approaching the FSSAI for modification of their license to include additional products or additional food business activities or while applying for a renewal of their licenses.

The above seems rather unfair to food business operators who are required to make an application for the modification of their licenses and also pay an additional fee in view of a delay on the part of the FSSAI in updating the online licensing system or in providing clarity on the matter. While the intention of the FSSAI cannot be questioned, it should take this particular matter into consideration and and consider it fair to provide a solution to these food business operators or a more efficient manner in which their licenses could be updated.

Hygiene levels of Ice

The Food Safety and Standards Authority of India (FSSAI) has now realised how unhygienic the ice being used for the transportation, preservation and storage of food products is. Ice, many a times, is made from doubtful sources of water and is transported in blocks at the back of cars, lorries, etc., with an unhygienic cloth covering it or sometimes with no covering at all. These are further delivered to their respective destinations by merely leaving the same on the ground, which in most cases could be the side of a public road, which requires no imagination to visualise unhygienic conditions that such blocks of ice go through. To make matters worse, these are also rampantly used and served by not just wayside eateries to unsuspecting consumers.

The FSSAI has understood that the ice blocks being used for the purposes of preservation, storage or transportation of food products, that are perishable, is made from water that is non-potable. Unfortunately, while the FSSAI had prescribed standards for edible ice, there were no standards for ice used in this manner.

The FSSAI, now, in view of the above, has stated, in terms of an order dated April 25, 2017, that any ice or ice blocks used in relation to the preservation, storage or transportation of food or that which comes into contact with the food must comply with the microbiological requirements that have been prescribed and set out for edible ice in the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011.

In a time where water borne diseases are rife, this is a positive move by the FSSAI to ensure the safety of ice. The FSSAI should however have also provided for the storage and transportation of such ice or ice blocks as the aforesaid could greatly affect the safety of such ice till such time it is put to its intended use.

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.

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.