Legal Metrology and Food Laws Newsletter | September and October 2024

This newsletter provides a comprehensive overview of recent developments, advisories, and key judgments related to food safety and regulatory compliance in India. From simplified registration processes for hawkers and innovative labeling initiatives to stringent measures ensuring food safety during festive seasons, these updates underline FSSAI's commitment to safeguarding consumer interests while promoting ease of doing business. Key cases highlight judicial interpretations and their implications for regulatory frameworks. Together, these updates shed light on FSSAI's proactive role in shaping a robust food safety ecosystem in India.

1. FSSAI Eases Registration Process for Hawkers:

FSSAI issued a direction dated 30th September 2024, for waiving the registration fees for hawkers, effective from 28th September 2024.

Provision 2.1.1 of Food Safety and Standards (Licensing and Registration of Food Businesses) Regulation, 2011 mandates every petty Food Business Operator to register themselves with the registering authority by submitting an application for registration in Form A under Schedule 2 of these regulations along with a fee as provided in Schedule 3 i.e. INR. 100 per year.

Now the Food Authority has decided to waive off the registration fees of hawkers and grant them the registration certificate for five years, without giving an option for selection of validity from one to five years, when applying for new Registration. This waiver of the registration fee will also be applicable for the renewal of the registration certificate by all hawkers.

Hawkers can apply under the "Food Services Hawker (Itinerant/Mobile food vendor)" category in the FoSCoS system. However, those who submitted applications before the waiver date will not be eligible for a refund of fees already paid.

This initiative aims to reduce the financial burden on small-scale vendors, making compliance with food safety regulations more accessible and affordable.

2. Special drives to check Adulteration of Sweets, Milk Products During Festive Season :

FSSAI issued an advisory to prevent food adulteration of sweet and other Dairy products during the festive season as there was a considerable increase in demand for sweets, savouries, and dairy products like ghee, khoya, and paneer, etc.

The increased demand often leads to economic incentives for adulterating such products, potentially compromising public safety. To counteract this, FSSAI had called on Food Safety Officers and Designated Officers to carry out special surveillance and enforcement drives, particularly in areas prone to such practices. Strict monitoring of manufacturing and sales activities was encouraged, along with the strategic use of Food Safety on Wheels (FSW) units in prominent markets.

These initiatives were designed to guarantee that festive food products are safe for consumption and adhere to the necessary food standards. Recent reports indicate that authorities across the country have seized a significant quantity of adulterated food, in line with the advisory.

3. FSSAI Expands Instant License/Registration Nationwide for Select Food Businesses (11.09.2024)

Earlier in the year on 1st July 2024, the FSSAI had launched the provision for Instant (Tatkal) issuance of food licenses and registrations in the state/UT of Assam, Delhi, Gujarat, Jammu and Kashmir & Kerala. Now vide an advisory dated 11th September 2024, the provision's applicability has been extended across India, except the State/UTs of Chandigarh, Himachal Pradesh, and Meghalaya.

The Tatkal scheme has been effective from 31st August 2024, allows specific food businesses such as wholesalers, distributors, retailers, and mobile food vendors to instantly obtain licenses/registrations via the Food Safety Compliance System (FoSCoS), subject to digital verification through GST, PAN, AADHAAR, and other requirements as mentioned in the earlier advisory.

The initiative aims to facilitate ease of doing business while ensuring compliance with food safety standards.

4. Clarification on 50% Testing Fee Reduction for FSSAI's Pan-India Surveillance:

FSSAI has issued a clarification regarding its earlier order on the 50% reduction in testing fees. The reduction applies specifically to the Pan-India surveillance programs conducted by the Quality Assurance (QA) Division at FSSAI Headquarters. This fee cut does not extend to surveys conducted under the National Annual Surveillance Plan (NASP) or other state-level or UT-level surveillance activities.

Before each Pan-India surveillance, the QA Division will notify the relevant laboratories about the reduced testing fees. This clarification ensures that the fee reduction is applied only to specific national surveillance efforts led by FSSAI HQ.

5. FSSAI Implements Agreement with Bhutan to Streamline Food Imports:

FSSAI has announced the implementation of an agreement signed between India's Ministry of Health and Family Welfare, FSSAI, and the Bhutan Food and Drug Authority (BFDA). The agreement, signed on March 21, 2024, at Thimphu, aims to streamline food exports from Bhutan to India by recognizing BFDA's control over Bhutanese Food Business Operators (FBOs) as equivalent to FSSAI's standards. As part of the agreement, BFDA shall issue a Health Certificate to certify that food products exported to India meet FSSAI's requirements.

To ensure smooth implementation, FSSAI has instructed the concerned officers to grant No Objection Certificates (NOC) for food consignments from Bhutan that are accompanied by the prescribed Health Certificate, which must be issued by BFDA's authorized signatories. A list of approved Bhutanese establishments and their scope of approval is also provided.

This initiative aims to facilitate easier trade and ensure compliance with food safety standards between India and Bhutan. Key areas of focus include aligning regulatory frameworks, simplifying food import procedures, and strengthening capacity-building initiatives. FSSAI will recognize BFDA's control over food business operators in Bhutan, thereby FSSAI will approve food imports from Bhutan based on health certificates issued by BFDA for approved establishments. Both sides emphasized their shared commitment to maintaining high food safety standards, facilitating smoother trade, and addressing implementation challenges.

6. Central Government Urges Edible Oil Associations to Maintain MRP Amid Duty Changes

As per the press release issued by the Ministry of Consumer Affairs, in September 2024, the Food & Public Distribution the Secretary, Department of Food and Public Distribution (DFPD), held a meeting with the Representatives from the Solvent Extraction Association of India (SEAI), Indian Vegetable Oil Producers' Association (IVPA) and Soyabean Oil Producers Association (SOPA) to discuss the pricing strategy.

In the said meeting the Government of India has advised edible oil associations to maintain the MRP of edible oils until stocks imported at lower customs duties (0% and 12.5%) are exhausted.

This follows a recent increase in Basic Customs Duty (BCD) on crude and refined oils, effective from September 14, 2024, to support domestic oilseed farmers. The BCD on crude oils has risen to 27.5%, while refined oils now face a 35.75% duty. These measures aim to bolster domestic oilseed prices and protect farmers as new crops enter the market. These adjustments are part of the government's ongoing efforts to bolster domestic oilseed farmers, especially with the new soybean and groundnut crops expected to arrive in markets.

The oil industry has been advised from time to time to align the domestic prices with the international prices so as to reduce the burden on the consumers.

7. The Re-operationalization Labelling Regulations for Food Safety :

On August 30, 2024, FSSAI issued a directive under Section 16(5) of the Food Safety and Standards Act, 2006, regarding the re-operationalization of the Food Safety and Standards (Labelling and Display) Amendment Regulations 2022.

The regulations were notified on November 30, 2022, for public input from stakeholders. However, the FSSAI observed that the finalization of these draft regulations is likely to take some time, therefore, by a directions dated January 6, 2023 and direction dated June 5, 2024 it had re-operationalized these draft amendment regulations. Originally framed in 2022, the draft regulations have undergone several operational updates, with the most recent re-operationalization occurring on June 5, 2024.

While the final amendment regulations have received preliminary approval, the notification process is still underway, prompting FSSAI to move forward with the implementation of the provisions from the 5th June 2024, directive. This re-operationalization will take effect from 1st July 2024, although it will exclude the provision regarding tolerance limits for declared nutrients on labels.

The Draft Food Safety and Standards (Labelling and Display) Amendment Regulations 2022 aims to enhance food labelling requirements in India. The regulations mandate that labels include essential information such as ingredients, nutritional details, and allergen warnings, while also applying specific labelling rules for non-retail containers and minimally processed foods. Warning statements regarding health risks must be clearly stated for certain products, like pan masala. Additionally, compliance for declared nutrients will allow a tolerance limit of ±20%, pending further approval.

8. Re-operationalization of the Draft Regulations for Health Supplements and Nutraceuticals:

FSSAI has announced the re-operationalization of the draft regulations concerning Health Supplements, Nutraceuticals, Foods for Special Dietary Use, Foods for Special Medical Purposes, and Prebiotic and Probiotic Foods. This decision follows the previous directive issued on 5th June 2024, aimed at implementing these regulations.

Given that the finalization of the draft regulations is anticipated to take longer than expected, FSSAI will continue to apply the provisions specified in the 5th June 2024, directive, effective 1st July 2024. This re-operationalization ensures that relevant guidelines remain in place while the regulatory process is completed.

The regulations define the categories of health supplements and nutraceuticals, specifying their intended uses and health claims. They establish safety and quality standards, including permissible ingredients, labelling requirements, and the need for scientific substantiation of health claims. Additionally, the regulations emphasize the need for proper manufacturing practices and compliance with safety standards to ensure consumer protection.

9. FSSAI Convenes Meeting Aimed towards Strengthening Fortified Rice Standards and Compliance

The FSSAI is intensifying efforts to ensure the quality of pre-mixes used in Fortified Rice Kernels (FRKs), following reports of substandard products. In a key meeting with FRK manufacturers and rice millers in Hyderabad, FSSAI CEO also highlighted the need for stringent guidelines for pre-mix and FRK manufacturers, especially since many pre-mixes come from China. FSSAI is promoting awareness at the ground level and requiring lab reports for pre-mixes and FRKs to be uploaded on a dedicated portal before distribution.

12. Dual Labelling Proposed for Food Wrapping Materials:

The Ministry of Consumer Affairs, Food, and Public Distribution is considering a new labelling requirement for food wrapping paper and aluminium foils.

The proposal recommends that packaging include both weight (in kilograms) and dimensions (in meters/centimeters) to give consumers a clearer understanding of the product's quantity. This move aims to standardize labelling practices and improve transparency. At present, products are sold based on either weight or length measurements. The Ministry invited public feedback on this proposal, to finalize the new guidelines in line with existing legal metrology regulations.

13. Mandatory Use of Test Reports Formula

Under Section 43(1) and 43 (2) of the Food Safety and Standards Act, 2006, the FSSAI has instructed all the food testing laboratories to follow the test report formats given under the Food Safety and Standards (First Amendment) Rules, 2022, in order to issue test reports for surveillance and enforcement samples.

With regard to imported food products, laboratories are directed to provide the analysis report in the 'FORM - 2', as per Food Safety and Standards (Import) Regulations, 2017. Additionally, as the laboratories are accredited as per ISO/IEC 17025:2017, they are required to use the NABL symbol in the test report, for tests that are covered under their scope of accreditation, as per guidelines specified in NABL 133 ("Policy for Use of NABL Symbol and/or Claim of Accreditation").

14. Mandatory PAN Compliance for FSSAI License/Registration:

The Food Authority has now mandated linking PAN Card with FSSAI License and Registrations effective 22nd October 2024, while applying for a new License/Registration, or for its renewal or modification.

The above directions are issued based on the recommendation made by the Department for Promotion of Industry and Internal Trade (DPIIT) with respect to 'PAN' as Business Identity.

All the existing Licensed or Registered FBOs are directed to update their PAN details on the FoSCoS website under the User Profile Section at the earliest. In case, any FBO applying for License/Registration does not possess PAN, such FBO shall submit a declaration for non-possession of PAN.

15. FSSAI New Shelf-Life Guidelines for E-commerce and Quick Commerce Entities

The FSSAI recently directed e-commerce entities selling food items on their platforms to ensure a minimum shelf life of 30 per cent or 45 days before expiry at the time of the delivery. According to an official statement, FSSAI convened a meeting with e-commerce entities to reinforce compliance requirements for e-commerce FBOs.

Owing to the sudden surge in complaints against online food delivery companies by several consumers stating that various e-commerce companies are not mentioning the "expiry date" or "best before date" or "use by" date on the grocery and food product, the FSSAI conducted a meeting with representatives of online food delivery companies.

In the said meeting, FSSAI directed online business operators to ensure a minimum shelf life of 30 percent or 45 days before expiry at the time of the delivery and also to launch training programmes for their delivery staff, ensuring they are well-versed with the food safety guidelines. FSSAI also cautioned online food operators against making any unsupported claims possessing misleading information causing infringement to the consumer's right.

FSSAI has also highlighted the importance of Legal Metrology (Packaged Commodities) Rules, 2017 and has strictly instructed e-commerce and quick commerce to ensure each claim made on e-commerce platforms must align with the information provided on the product labels and in adherence to FSSAI's food safety guidelines.

16. FSSAI Ensures Strict Rules on Antibiotics in Food Item

FSSAI has revised antibiotic residue norms for meat, milk, poultry, eggs, and aquaculture to reduce growing antimicrobial resistance. The revised limits will be applicable from April 2025.

This step aims to control antibiotic residues in food products such as meat, milk, poultry, eggs, and aquaculture, and to address the critical issue of Antimicrobial Resistance (AMR).

The FSSAI via this regulation aims to tackle the growing problem of "superbugs", drug-resistant bacteria and fungi due to misuse of antibiotics and other medication. The authority is also trying to reduce the inadvertent consumption of antibiotics through the diet, which can lead to the development of resistant bacteria in humans.

Key Judgments:

I. Pepsico India Holdings Pvt. Ltd v State of Kerala - (Crl.M.C. No.8950 of 2016)

The Kerala High Court has directed the Central Government to look into the lacunae in the Food Safety and Standards Act of 2006 and its Regulations. The Court stated that it is the duty of the government to have a foolproof Act and Rules to ensure that citizens are given unadulterated food.

Facts of the Case

In this case, PepsiCo India Holdings Private Limited, along with other accused parties, faced charges under the Food Safety and Standards Act (FSS Act), 2006 (FSSA). The issue arose when a consumer purchased bottles of Mint & Lemon Flavoured Green Iced Tea, which were found to contain saccharin (a sweetener) and caffeine, both of which were not properly labelled, violating food safety laws.

The initial report from the Food Analyst claimed the sample was unsafe due to the presence of saccharin, while a later report from the Referral Food Laboratory found the issue to be caffeine. The conflicting reports created a legal challenge, as under the FSSA, prosecution can only proceed if the referral lab confirms the initial findings of the Food Analyst.

Issue Involved:

In this case, the Court was considering whether prosecution could be initiated against Pepsico India Holdings Private Limited for allegedly selling unsafe and misbranded Mint & Lemon Flavoured Green Iced Tea when the reports from the Food Analyst and Food Laboratory were divergent.

Finding of the Court:

Since the two reports were divergent, the court ruled that prosecution could not be sustained.

The court also pointed out a gap in the law and stated there is no provision to handle cases where the two reports conflict. As a result, the court quashed the charges against PepsiCo and suggested that the central government consider amending the law to address this issue. It emphasized that the right to safe food is a fundamental right under Article 21 of the Indian Constitution.

II. Hindustan Coca Cola Beverages (P) Ltd. and Another v The Controller of Legal Metrology and Others (Crl.M.C.No.6147 of 2018)

Facts of the Case

In this case, Hindustan Coca Cola Beverages (P) Ltd. faced prosecution under Section 18(1) of the Legal Metrology Act, 2009 and Rule 9(1)(a) of Legal Metrology (Packaged Commodities) Rules, 2011, for allegedly failing to provide legible and prominent declarations (such as price and packaging details) on a bottle of Kinley packaged drinking water sold at a movie theatre. The prosecution claimed that the declarations, required under Rule 9(1)(a), were not clear. Hindustan Coca Cola argued that the laser printing was permitted by the law as long as the details are legible and prominent, it is compliant with the rules

Finding of the Court:

The Kerala High Court reviewed the seized bottle, which had laser-printed details, and found that the printing was indeed clear and prominent. The Court concluded that laser printing is legal and cannot be challenged therefore, quashing the case against the Hindustan Coca Cola.

III. Jagdish Prasad v. State of U.P. (2024 SCC OnLine All 3404)

Facts of the Case:

A quashing petition was filed by the applicants, who own a firm manufacturing 'Sugandhit Supari', challenging the issuance of the summons order under the FSSA. The Summons were issued after the Authority contended that during the inspection it was found that Applicant's product 'Sugandhit Supari' contained tobacco and did not meet labelling requirements. The Applicant argued that Sugandhit Supari is a tobacco product governed by the Cigarettes and Other Tobacco Products Act, 2003 ("COTPA"), and that they held a valid license.

Issue raised: Whether Sugandhit Supari is a tobacco product or food under the relevant laws, and whether the proceedings under the FSSA were justified?

Finding of the Court:

The Hon'ble Court found that Sugandhit Supari is classified as food under the FSSA, and the addition of tobacco makes it unsafe. The Court determined that the Applicant'' license does not exempt them from compliance with food safety regulations, and the proceedings initiated against them were valid.

The Court further held that Sugandhit Supari is a primary food product as defined in the FSSA, and the addition of tobacco violates food safety regulations. The Court distinguished between the regulatory scopes of the FSSA and COTPA, concluding that violations of food safety standards are punishable under the FSSA, regardless of the product's classification under COTPA.

Hence, the quashing application was dismissed, affirming the validity of the proceedings against the Applicants under the FSSA.

IV. Ramchandra Kaundinya Vinnakota v. State of Maharashtra ( Criminal Application No. 4193 of 2019 - Bombay HC)

Facts of the Case:

A criminal complaint was filed by the Legal Metrology Department regarding a violation of packaging laws under the Legal Metrology Act, 2009. During an inspection in 2018, it was found that packages of the brand "Gramoxone," did not comply with the numeral size requirements.

The Applicant filed a quashing petition before the Hon'ble Court inter alia on the grounds that under Section 49 of the Legal Metrology Act, for a director to be held liable, the company must also be prosecuted. The Applicant further argued that no specific role was attributed to him in the complaint.

Finding of the Court:

The Court observed the company should have been made a party to the criminal proceedings, and there was no specific allegation made in the complaint against the Applicant (the Director). Consequently, the Court quashed the criminal complaint against the Applicant, finding no basis for prosecuting the Applicant individually without implicating the company. It was held that the sole Applicant as a Director of the Company is not liable for the prosecution for offence committed by the Company and no prosecution as against the Applicant can be continued.

Contributors to the newsletter:

• Sidhartha Srivastava, Partner
• Yasmeen Sabir, Principal Associate

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