As the Indian food safety regulator has
just announced that it would finally draft new norms for maximum lead and other heavy-metal content in foods, Advocate Kunal Kishore explains why food regulation has been neglected for far too long. The
whole controversy surrounding Maggi has caught everyone’s attention on
two issues. First, Nestle and second the Food Safety and Standards
Authority of India (FSSAI). People now realise that a government
organisation exists that is supposed to ensure the safety of the food we
consume. FSSAI has been in the news for quite some time now in relation
to imported food items, but its name has now reached the common man
with the Maggi controversy.
FSSAI was established under section 4
of the Food Safety and Standards Act, 2006 (FSS Act). It consists of a
chairperson and 22 members. Members are appointed from various
ministries related to food and also include representatives from the
food industry, consumer organisations, food scientists/technologists,
farmer’s organisations and retailer’s organisations. FSS Act also
provides for the appointment of a Chief Executive Officer who is the
legal representative of FSSAI, responsible for day-to-day administration
and various other works. There is also a central advisory committee,
scientific panels and a scientific committee.
The duty of FSSAI
is to regulate and monitor the manufacture, processing, distribution,
sale and import of food so as to ensure safe and wholesome food for
public consumption. Under the FSS Act, FSSAI is, inter alia, empowered
to make regulations prescribing standards for food items including
limits on food additives, crop contaminants and pesticide residue.
However, FSSAI can only come out with these regulations after receiving
the approval of the Central Government and each house of parliament.
The
mandate of the FSS Act is enforced by both FSSAI and state food safety
authorities. State food safety authorities consist of food safety
officers, designated officers and commissioners of food safety.
Food Product Standards and Food Additives Regulations
FSSAI
came out with various regulations including the Food Safety and
Standards (Food Product Standards and Food Additives) Regulations (the
regulations). These regulations provide standards for different kinds of
food articles and additives that are allowed to be used in food
products. It also provides tables wherein different kinds of food items
are mentioned, along with the additives that are allowed to be used.
This
suggests that only those food items and additives that are specifically
mentioned under the regulations are allowed. However, interestingly
under the regulations an entry of
“Proprietary Food” is defined to mean
a food that has not been standardized under the regulation. Further, it provides that in addition to the labelling requirements provided under
these regulations, a proprietary food shall also conform to the following:-
Conform to the labelling requirements specified under
these regulations (it appears that the expression “
these regulations”
refers only to Food Product Standards and Food Additives Regulations”
and it does not refer to labelling regulation) Name of the
describing
shall be as clearly as possible Nature or composition of the food
shall be mentioned on the label The food shall comply with all other
regulatory provisions specified in
these regulations and
appendices A and B (Appendix A provides tables wherein permissible usage
of food additives are mentioned and Appendix B specifies
micro-biological requirements)
But why are only 377 food items
standardised? Are 377 food items sufficient to cover all categories
of food items? What happens to those food items that are not mentioned
under Appendices A and B? How will the additives used therein be
regulated? How are food items that existed at the time of the
implementation of the regulations, and fall within the definition of
“Proprietary Food”, regulated? How are food items that are standardised food but use extra additives treated?
To date most of the legal issues and disputes have arisen due to the term
“Proprietary Food”.
From the definition one cannot conclude that non-standardised foods are
not allowed to be manufactured, imported or sold. However, at the same
time it also cannot be concluded that all the non-standardised food
items are allowed to be manufactured, imported or sold. Only 377 food
items are standardised, with all remaining food items falling under the
term
“Proprietary Food”. Given this background, the following questions arise:-
There
are many questions like these that leaves us to wonder how they can be
allowed to crop up in the first place and where does the answer lie.
These questions arose because, at the time of transition from the
Prevention of Food Adulteration Act (PFA) to FSS Act, the regulations
were imported without serious review.
So today what we have are
old regulations which were adopted some 40 to 50 years ago. Different
countries across the world have included at a minimum 5000 to 10,000
standards in their food safety laws, yet we are stuck with only 377.
Now, if FSSAI wanted to correct this mistake they would have to go to
parliament for their approval as per section 93. So instead they came
out with a short-cut called product approval scheme (the scheme) .
Product approval scheme
The
scheme was launched through an advisory process not through regulation
which ideally should have been the case. Through the scheme, FSSAI have
tried to achieve three objectives.
First, they improved their
financial situation by fixing the fee for each product approval to Rs
25,000. As only 377 products were standardised, FSSAI was soon flooded
with product approval applications and much needed money.
Second,
they started collecting data on different kinds of foods through the
applications. India had probably never had this information before and
it didn’t cost them anything. In fact, they were getting money for it.
Third, they tried correcting their gravest mistake of not updating the standards at the time of transition from PFA to FSS Act.
The
scheme also suited the industry as it allowed them to continue their
business, which otherwise might have shut down or would have been highly
susceptible to corruption. This arrangement suited both the regulator
and the regulated until
Vital Neutraceuticals decided this before
the Bombay high court. Bombay high court held the scheme as ultra vires
because the procedure laid out in section 92 and 93 was not followed,
because it was not placed before the parliament and approval was not
obtained.
In appeal, FSSAI approached the Supreme Court and the
judgment of the Bombay high court was stayed and the matter is pending
final hearing. So, to date, the product approval scheme is running and
FSSAI does not allow anyone to manufacture, import or sell
non-standardised food products without product approval.
It is
because of this stand that Nestle was forced to withdraw Maggi Oats
Masala Noodles with Tastemaker. But one very important thing went
unnoticed, being the nature of the product approval scheme.
Analysing
product approval systems existing in different countries, such a system
generally exists only for novel food items or ingredients. Meaning from
a particular date, FSSAI notifies the list of food articles,
ingredients and additives that are known to have been used in food and
are considered safe.
If a food business operator seeks to
include any food item, ingredient or additive they will have to apply
for product approval and pay a fee. The fee would be utilised to analyse
the safety of the particular food item. However, our FSSAI did not
bother to come out with any such updated list of known food items,
ingredients and additives. Instead they asked everyone to apply for
product approval, even for those food items, ingredients and additive
that were already in use at the time of implementation of the
regulations.
The purpose of doing this could have been to create
a database at the cost of manufacturers, importers and sellers of food
items. However, through this scheme, FSSAI is unduly enriching
themselves at the cost of food business operators.
Under
Appendix A of the regulations, the usage of additives has been specified
by food category. In the same manner, FSSAI should update the list of
accepted additives. However, they are not doing so and instead are
asking every manufacturer and importer to obtain approval separately for
the same additive used in similar products. The reasoning given is that
the food product is said to be exclusive to the applicant and the food
authority is restrained from sharing information.
Prima facie,
it might look convincing but the logic is incorrect. The job of FSSAI is
to specify whether a particular ingredient or additive is allowed to be
used in a particular kind of food or not. And if yes then in what
quantity.
Here, first, FSSAI is not specifying to food business
operators what ingredients and additives are allowed. Rather they are
taking advantage and must be earning money for approving the same
ingredient or additive for possibly 10 or even 100 different food
business operators.
Maggi Fiasco
Given this
background, we will now look at the much discussed case of the present
day, Nestle’s Maggi case. Here, we analyse some of the issues which went
unnoticed:-
Effect of registration/licensing
Each
packet of Maggi contained the FSSAI license number along with its logo.
Does this not give an impression to the consumer that this food business
operator is under the purview of the food safety authorities? Can
consumers not assume that food safety authorities would have taken due
inspection to ensure the quality?
During the whole Maggi
episode, not even once did the FSSAI come out with a statement
explaining how violations were allowed to take place at such a large
scale. Forget about the explanation, even a future course of action has
not yet been announced. This may mean that FSSAI is going to cancel
Nestle’s license or it may mean that after a few months everyone will
forget about it and Nestle will carry out its business as usual or with
some improvement.
Non-identification of the source
Nestle
never came out with a list of particular units where violations took
place. Such a declaration would have helped them in restricting food
recall to the Maggi manufactured in only such units and saved them to a
great extent. At the same time, in the absence of any such declaration,
inference can be drawn against them that violations took place at all
units.
Food recall procedure
In the past weeks, print
and electronic media has been flooded with news of the recall and it is
being projected as one of the largest recalls ever. It may surprise
readers to know that FSSAI has not implemented any food recall procedure
to date.
The draft regulations in this regard were circulated
for public discussion only 2-3 days prior to this Maggi fiasco. In the
absence of these regulations how will FSSAI ensure the proper recall of
the sub-standard Maggi packets? They might have to rely solely upon the
declaration made by Nestle, which has already been widely published.
Let’s hope they do not rely solely on media reports, and instead try and
verify the data themselves.
Labelling violations
One
of the reasons for banning Maggi was because “No Added MSG” was
mentioned on the packet label. As per the FSSAI, this is mis-leading and
they have relied upon a document of the US Food and Drug Administration
to support their argument.
We appreciate the hard work that the
FSSAI officials have put in to make a case against Nestle. However, it
would have been appreciated more, had the guidelines been issued by
FSSAI in advance. On the one hand, FSSAI maintains a view that what is
permitted under
Codex Alimentarius and other countries cannot be
ipso facto
regarded allowed in India, and on the other hand they themselves rely
on foreign literature to make a case against a food business operator
working in India.
Conclusion
FSSAI has been lethargic
and inefficient in the past and it can be for many reasons including
financial constraints and untrained manpower. Now they have started to
pick up, however, they first need to put their house in order and then
can expect everyone to follow them.
In their overenthusiasm,
they might harm the industry and may jeopardise the jobs of many. In the
last 2 to 3 months, one can definitely see a change in the workings of
FSSAI. Its website appears more active and seems to be giving more
clarity to the industry and consumers.
Despite this, there is
lot more to improve. We hope that FSSAI soon starts quoting their own
advisories in their orders rather than relying upon that of another
country.
കൊച്ചി: 'നിറപറ' ബ്രാൻഡിന്റെ മുളകുപൊടി, മല്ലിപ്പൊടി, മഞ്ഞൾപ്പൊടി
എന്നിവയ്ക്കുള്ള നിരോധം റദ്ദാക്കിയ ഹൈേക്കാടതി സിംഗിൾ ബെഞ്ച് ഉത്തരവിനെതിരെ
ഡിവിഷൻ ബെഞ്ചിനെ സമീപിക്കാൻ സംസ്ഥാന സർക്കാർ തീരുമാനിച്ചു. പൂജ അവധിക്കു
ശേഷം അപ്പീൽ ഫയൽ ചെയ്യും. മായം ചേർന്നതാണെന്ന് കണ്ടെത്തിയതിനെത്തുടർന്ന്
സപ്തംബറിലാണ് ഉല്പന്നങ്ങൾ നിരോധിച്ച് ഭക്ഷ്യസുരക്ഷാ കമ്മിഷണർ
ഉത്തരവിറക്കിയത്.
തിരുവവന്തപുരം: കറിപ്പൊടികളില്‍ മായം കണ്ടെത്തിയതനെത്തുടര്‍ന്ന് നിറപറയുടെ മൂന്ന് ഉല്‍പന്നങ്ങള്‍ നിരോധിച്ചു. മുമ്പ് 34 തവണ മായം കണ്ടെത്തിയതിനെത്തുടര്‍ന്ന് നിറപറ പിടിക്കപ്പെട്ടിട്ടുണ്ടെങ്കിലും പിഴയടച്ച് രക്ഷപ്പെടുകയായിരുന്നു.
ഓണമായാലും അല്ലെങ്കിലും മലയാളിക്കു പച്ചക്കറി കൂടാതെ
വിശപ്പകറ്റാനാകില്ല. കേരളത്തിലെ പച്ചക്കറി ഉല്‍പാദനമാണെങ്കില്‍
കണക്കിലെടുക്കാന്‍ പോലുമില്ലാത്ത തരത്തില്‍ കുറവും. അതിര്‍ത്തി
ചെക്‌പോസ്റ്റുകള്‍ കടന്നു ലോറികള്‍ പച്ചക്കറിയുമായി എത്തിയില്ലെങ്കില്‍
മലയാളി പട്ടിണി കിടക്കുമെന്നു ചുരുക്കം. വിഷമാണ് കഴിക്കുന്നതെന്നു
കാലങ്ങളായി പറയാറുണ്ടായിരുന്നു. തികഞ്ഞബോധത്തോടെയാണെങ്കിലും
അറിഞ്ഞുകൊണ്ടുതന്നെ മലയാളി ഇതൊക്കെ കഴിച്ചു പോന്നു.
വിശപ്പായിരുന്നുപ്രശ്‌നം. ആരും ഇതു പരിഹരിക്കാനും വിഷമുക്തമായ പച്ചക്കറി
ലഭ്യമാക്കാനും ശ്രമിച്ചില്ലെന്നു പറയുന്നതാകും ശരി. ഒടുവില്‍ അതു
സംഭവിച്ചു, കേരളത്തിലെ യുവ ഐഎഎസ് ഓഫീസര്‍ ടി വി അനുപമയായിരുന്നു മലയാളിയുടെ
ഭക്ഷണ ശീലങ്ങളില്‍നിന്ന് കീടനാശിനിയുടെ വിഷരുചികള്‍ ഒഴിവാക്കാന്‍
മുന്‍കൈയെടുത്തത്.
