Tag Archives: Food Business Operators

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.

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.