Legal metrology and Food Laws Newsletter - January and February 2024

The bi-monthly newsletter is an attempt to update the reader about the recent developments in food laws and metrology laws including the compliance required by various industries / sectors.

This newsletter inter alia covers advisory for time bound processing of applications by FSSA, Delhi High Court takes suo motu cognizance on sale of repackaging of expired food products with new expiry dates, advisory issued by FSSAI for Airlines concerning Labelling of food sold in the aircrafts, Eat Right India initiative by FSSAI, Draft Food Safety and Standards (Food Product Standards and Food Additives) Amendment Regulations, compliance guidelines for usage of "ORS" term in product names and Food Safety and Standards Act, 2006 (FSSA) holds effect overriding Indian Penal Code, 1860 (IPC) in food adulteration cases.

1. Advisory for time bound processing of applications:

i. To ensure the time bound processing of the applications, marked for pre-license inspection (category other than the specified under the Risk Based Inspection category vide order number RCD-02001/9/2021-Regulatory-FSSAI dated 2nd May 2022), an advisory has been issued by the FSSA issuing direction to the Designated Officers ("DOs") that:No pre-license inspections shall be conducted in cases other than mentioned in the Order for Risk Based Inspection (as mentioned above).

ii. In the case where DO believes that it is necessary to conduct inspection in non-mandatory categories, he/she shall record the reason in writing with clear justification.

iii. Moreover, once an application is marked for inspection in non-mandatory categories, inspection should be done within 15 days. In case, inspection is not conducted within 15 days, DO should recall the application back to Document Scrutiny Stage in Food Safety Compliance System ("FoSCoS") and grant the License.

iv. In case where DO still believes that inspection is necessarily to be conducted prior to grant of license, he/she can reassign the inspection to another FSO or to himself/herself for immediately conducting the inspection without any further delay.

The above is intended to ensure the timely processing of the applications.

2. Delhi High Court takes Suo Motu Cognizance on sale of repackaging of expired food products with new expiry dates

The Delhi High Court has initiated a Suo Motu Public Interest Litigation (PIL) to address concerns regarding the repackaging of expired food items with new expiry dates and their subsequent sale in the market. This action was taken after the court apprised of the cases wherein expired chocolates were being sold after repackaging.

Taking into consideration the potential health hazard involved, the Court has directed the Delhi Police's Crime Branch to investigate the matter.

3. Advisory issued by FSSAI for Airlines concerning Labelling of food sold in the aircrafts:

Recently, an advisory has been issued by the FSSAI, to the flight operators directing them to ensure that the passengers are well aware of the FSSAI license number of both the caterer/manufacturer as well as the flight operators. It further directs mentioning of the basic details in case of prepared foods such as the name of the Caterer, FSSAI License number, Date and Time of packaging, and Use by Date and Time, needs to be ensured on the packaging along with the other details as applicable as per FSS (Labelling and Display) Regulations, 2020.

The Authority lastly mentioned, in the said advisory, that the flight operators must inform passengers about the right available with them to lodge food-related grievances on the FSSAI's Food Safety Connect App.

4. "Eat Right India" initiative by FSSAI:

FSSAI has set up a goal of promoting safe and healthy eating habits within different campuses. The "Eat Right India" is one its such initiatives which primarily aims to promote safe, healthy and sustainable food in different workplaces and institutions, including jails. The 'Eat Right' certification process involves rigorous assessment and adherence to FSSAI's prescribed evaluation criteria and meeting the set criteria. Once of the critical steps of this process includes training of Food Safety Supervisors and food handlers in the campus through FSSAI's Food Safety Training and Certification ("FoSTaC") Programme. FoSTaC is designed to impart training to food handlers on good hygiene and manufacturing practice.

In recent times over 2,900 approx. workplaces throughout the country have now been acknowledged as 'Eat Right Campuses', by FSSAI including railways stations.

5. Operationalizing Draft Food Safety and Standards (Food Product Standards and Food Additives) Amendment Regulations:

The directions are issued by the FSSAI, via its letter dated 12th March 2024, bearing number F.No. SS-M015/1/2023-Standard-FSSAI, with regard to the direction issued vide File No. SS-M015/1/2022-Standard-FSSAI dated 30th May 2022, operationalizing Draft Food Safety and Standards (Food Product Standards and Food Additives) Amendment Regulations w.r.t. the values of Total Dissolved Solids, Calcium and Magnesium and subsequent order dated 21st June 2022 and 03rd January 2023 regarding partial modification in the above direction and extension in the date of implementation respectively.

The final amendment regulations have been approved by the Food Authority in its 42nd meeting and the same are in the process of final notification, which is expected to take more time for its publication in the Gazette of India. Meanwhile, to allow the FBOs to formulate Packaged Drinking Water (other than Mineral Water), it has been decided to re-operationalize the following provision with effect from 1st January 2024:

"Under sub-regulation 2.10.8 relating to the standards of Packaged Drinking Water, the Permissible Limits given in column (3) of the Sr. No. 5 of Table 2, Sr. No. 15 and 16 of Table 3 shall be substituted with the following:

Total dissolved solids,mg/I	75 to 500
Calcium (as Ca), mg/I	10 to 75
Magnesium (as Mg), mg/1	5 to 30

6. Compliance guidelines for usage of "ORS" term in product names:

The Office of the Controller General of Patents, Designs and Trademarks ("CGPDTM") has given his go ahead for use of the term "ORS" along with brand names. However, it has been clarified that the term "ORS" can only be used with other 'prefix or suffix' in accordance with Section 17 of the Trade Marks Act, 1999.

In addition of the above, all concerned Food Business Operators (FBOs) are directed to adhere to the following conditions for manufacturing such products:

i. Use of the term "ORS along with other prefix or suffix" as a whole, consistent with Section 17 of the Trade Marks Act, 1999.

ii. Placement of a prominent disclaimer on the Front-of-Pack stating that the product is not an ORS formula as recommended by WHO, or any similar phrase, with specified font sizes based on the product's principal display panel area.

iii. Compliance with FSS (Advertising and Claims) Regulations, 2018, by clearly stating a disclaimer on the front of the pack, emphasizing that the term used is only a brand name or trademark.iv. Ensuring compliance with the above directions effective from April 1, 2024.

7. Food Safety and Standards Act, 2006 (FSSA) holds over riding Indian Penal Code, 1860 (IPC) in Food Adulteration Cases:

The Supreme Court, in the matter of 'Ram Nath v. State Of Uttar Pradesh' ¹ has upheld the ratio laid down in the matter of 'M/s. Pepsico India Holdings (Pvt) Ltd. & Anr v. State of Uttar Pradesh & Ors'², primarily holding that after coming into force of the Food Safety and Standards Act, 2006 ("FSSA") (with effect from 29th July 2010), it would have an overriding effect on other laws including the sections of the Indian Penal Code ("IPC"), in cases of food adulteration.

The issue involved in subject matter was inter alia restricted to clarifying the interplay between the provisions of Chapter IX of the FSSA and Sections 272 and 273 of the IPC. While answering the question raised before the court, the Court emphasized that FSSA is a comprehensive legislation aimed at consolidating food-related laws to ensure food safety and standards and therefore the provisions thereof would have an overriding effect over the food related laws, including Sections 272 and 273 of the IPC.

Furthermore, the Court emphasized that Section 89 of the FSSA, which explicitly gives overriding effect to the Act over any other law in the realm of food regulation. The Court concluded that offenses under FSSA would supersede those under IPC in cases of food adulteration and therefore, disallowed simultaneous prosecution under both statutes.

Contributors to the newsletter:

• Sidhartha Srivastava, Partner
• Yasmeen Sabir, Principal Associate

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