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.

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