In this article, Nikhil Mukund Borkar pursuing M.A, in Business Law from NUJS, Kolkata discusses FSSAI new guidelines on import of Food.

Every country requires an effective food control regulatory body to safeguard and promote a trustworthy and honest food presentation and supply culture. An honest food supply chain ecosystem ensures that consumers are protected from adulterated, spoiled and contaminated foods. It is generally observed that the food law is divided in two parts: Regulations and the basic food act. The regulations pertain with detailed provisions and the Act lays down a wide array of principles.

The food law that is based on the principles that primarily deals with, but isn’t restricted to: laying down the scope and purpose, defining all the terms and concepts contained herewith, maintaining updating and communicating list of chemical and biological contaminants, protocol for inspecting samples, guidelines for labeling and packaging, protocol for amending the regulations, scope of implementation of the law. Scientific analysis and study is the core foundation on which Food Law bases itself. From the advent of the late twentieth century, a phenomenon of global harmonization and standardization of food law is being observed.

The legal frameworks of a country are rightly considered as a crucial pillar that aids effective food control system.  Most country’s food is under a regime of myriad laws and regulations, that are set out by the government and needs to be met by the local and international food supply chain operators to ensure that the food is consumable and safe. Ideally, the food law of a country should entail requirements for the total supply chain; right from provisions for animal fodder, on-farm conditions and restrictions; food processing lifecycle through to last mile distribution and consumption by the user.

As countries continue to experience population and consumption growth, there is increased pressure placed on agriculturists and farmers to increase production and yields. This increased pressure for higher yields has led to increased use of chemicals and pesticides. The storage and transport of food could also involve usage of chemicals.

The chances of contamination increases significantly as large quantities of food continue to get centrally processed. In today’s fast-paced world, there has been a huge spike in demand, mostly contributed by busy professionals, for foods that can be quickly served and consumed. However, this convenience comes at a cost; there’s heightened risk of contamination. These convenience foods also contain food preservative and additives, hence a guideline for precautions and hygiene is needed.

As the consumption increased with time, so did the trade of foods, among countries and within countries; thus, the necessity of food law arose not only nationally but internationally.  Since the Industrial revolution, the world has started getting more interconnected and food trade increased. There was little to no government intervention, and there was an implicit understanding that the producers of the food would determine their own standards and quality control measures for the food that their consumers would buy. Honorable, accountable and responsible businesses took great precautions to ensure that their consumers are protected. However, a few dishonest traders, in greed of earning a quick buck, misused the unregulated food markets and sold low quality, adulterated foods. Continued instances of such market abuse over time, prompted the governments to intervene and enact food regulations and law. The combination of food control authorities and food regulations ensure that the food that is being domestically produced, exported and imported are safe for consumption.

Constituents of the Food Law

More often than not, the food law is made up of two core ingredients;

1. Regulations
2. The Food Act

Guidelines and provisions, explained with a fair degree of granularity, that governs various types of food products. In contrast, the Food Act lays down a broad range of principles.  Many proactive and vigilant countries also regularly update the levels of chemical tolerances, food standard, provisions for hygiene, list of acceptable food additives; and include them in the food law.

In order to establish a robust food security system and ensure that there are mechanisms for enforcement, there needs to be descriptive and detailed provisions laid out. In many countries, the responsibilities of the government are mainly split into that of the executive and that of the legislative branches. While executive branch formulates and elaborates regulation that is proposed by the law administering agencies, the legislative branch enacts the basic law.

Nations that include a detailed explanation of specifications of food standards, food additives, food processing, labeling and packaging, hygiene standards and pesticides in the law may face some difficulties. As food technology advances, new scientific insights come to light, or emergencies that warrant a quick action could prompt swift revisions of regulations. These revisions can be expedited by the executive branch rather than the legislative branch.

There have been instances where countries have made their food standards as a part of the regulations; however some countries have maintained separate enactments for the same. Inevitably, these standards get included in the enforcement mechanism, with the intention of implementing basic food law.

Ideally, a country’s basic food law should consist and focus on the principles stated below:

• The scope and the intention of the law
• Basic concept definitions
• Capacity for legal implementation.
• Labeling and packaging
• Enforcement procedure and polices, magnitude of penalty
• Procedures to be followed to prepare and amend the regulation
• Inspection facilities and analytical processes
• Guidelines and regulation for pesticides, additives and contaminants.

The intention of the food law is to provide, by means of a mark or certification, of assurance to consumers of food that it is wholesome, edible and manufactured in hygienic facilities. Most country’s food law is empowered to prohibit the import and distribution of adulterated food products and foods with labels which are misleading or untrue in any way.

A strict adherence to these provisions of the food laws encourages compliance that leads to adoption of fair trade practices. It ensures and safeguards the interest of the honest manufacturer of food products from unethical businesses that create an unfair competition. This prompts and incentivizes the participants to adhere to scientific guidelines which lead to acceptance of food products and overall development of the industry.

A crucial facet of the food law is the clear definition of terms like food additives, food contaminants, adulteration, imitation food, natural food, and pesticide residue and food fraud.

For example, an ideal food law could describe and ascertain food illegality if:

• If the food product contains a harmful, poisonous, natural element or substance that, when consumed, would be injurious to health.
• If any part of the food product is decomposed or stale.
• If the food product contains a harmful, poisonous element or substance that, when consumed, would be injurious to health.

Furthermore, exact description of what amounts to an offense must be included in the food law, which would increase penalties. Offense that should be covered are mentioned below:

• Misleading and fraudulent labels on food products
• Intentional adulteration of foods
• Promoting and advertising the consumption of foods that contain illegal or harmful substances
• Non-compliance to hygiene requirements
• Non-compliance of standards set by the food law

The scope of Food Regulations

Discussed previously, we know that food regulations inevitably dictate the food law enforcement mechanism. Ideally, the food regulations should cover:

• Pesticides
• Food labeling and packaging
• Food hygiene
• Food Marketing
• Regulations
• Food standards
• Food additives

These regulations entail detailed guidelines for the enforcement practitioners. This contains regulations pertaining to official steps, such as protocol for sample collection, inspection guidelines, ascertaining the magnitude of penalty in case of non-compliance, handling of foods collected during seizures.

General Regulations also contain guidelines and regulations pertaining to permits; which type of companies must be registered, type of foods that require permits and registrations, the conditions and requirements to acquire a permit.

Now that we’re familiar with the basic food law and regulation, let us have a deeper look at the food import policies of India.

FSSAI Food Import Regulations

The Food Safety and Standards Authority of India (FSSAI), in order to simplify and streamline the clearance process, issued a notification on import regulations.

A risk based framework that reviews risks associated with imported food products periodically, is a core component of the food regulator’s risk-based inspection process.

The FSSAI welcomed all the stakeholders of the food import and distribution supply chain to voice their opinions and concerns. After a thorough consultation process, the Food Safety and Standards (Import) Regulations, 2017 was notified.

The food regulators assured that with these new regulations, not only would the consumer interests be safeguarded but also facilitate ease of doing business and ease of trade.

Various provisions pertaining to a license mechanism for food importers and guidelines for clearing the passage of imported foods into India have been laid down in the regulations. This includes guidelines and best practices pertaining to food storage, food sampling and inspection, food labeling and packaging guidelines for importing food products and food clearances for specific reasons.

The Food Safety and Standards Authority of India could, after consultation, introduce a mechanism to regulate import of food products by means of a pre-arrival document review.

The Indian food regulator is also said to be in talks to enter into memorandums of understanding with food agencies of countries with which India has significant trade volumes and relations, to accelerate clearance of import of food products from those countries to facilitate ease of doing business.

The Indian food regulator, the Food Safety and Standards Authority of India (FSSAI) is also in the process of identifying trustworthy laboratories in countries that have substantial volumes of food products exported to India; for a pre-screening and testing of food product samples before those products make way to India. The Indian food regulator has also hinted that it could periodically issue food alert notifications depending on the extent of the risk found to be associated with the food products; this includes ban of food products for a specific period of time or enforcing a product recall.

Diving deeper into the Food Import Regulations

The Food Safety and Standards Authority of India (FSSAI), on the 14^th of January 2016 published regulations pertaining to import of food products, known as the Food Import Regulations, 2016. The regulation is to be implemented with immediate effect and binding on all companies in the food import supply chain and distribution. A draft document was put out by the food regulator for comments from the various stakeholders in July, 2013. An analysis of the two documents suggests that significant revisions were incorporated.

Major and notable highlights of the Food Import Regulations, 2016 are discussed below:

1. License requirement for Food Business Operators (FBOs) and Food Importers:

• The regulation requires the Food Business Operators/Importers to register themselves with the Directorate General of Foreign Trade (DGFT)
• Businesses engaged in the import of food must have an import license granted by the Central Licensing Authority.
• Having a valid Import-Export code is necessary for the Food Importer.

2. Regulations pertaining to Shelf-life of the products:

• Food products that declare a shelf-life of less than seven days, according to Schedule II, an authorized officer, would sample the food products and grant a No-Objection Certificate (NOC) to the Customs and Clearance authority, without having to wait for the laboratory’s analysis report. The Customs Authority would receive communication regarding the analysis done by the laboratory and the NOC, when the products conform the standards laid down by the FSSAI.
• If the food samples are found to be in violation of the standard, the authorized officer would inform the Customs House Agent /importer to recall the said food consignment and within 24 hours, furnish a compliance report to the FSSAI. After which the FSSAI would issue alerts to officers stationed at all ports of entry to be on the vigil for the questionable food product and consignment of products of the same manufacturing company as a whole.
• Every food importer is obligated to inform the AO/DO regarding the details of their Customs House Agent (CHA) and what authority is granted to them. In case of curtailment of authority or modification of the status of the CHA, the companies must inform about the same within 3 days of the modifications.
• The procedure to appoint a CHA by a food importer is provided under Schedule 1. The application requires furnishing the following details:
• Food item that would be imported
• Name of the Customs House Agent.
• The Custom House Agent’s license number
• Name, Address and contact details of the Importer
• Country in which the food product consignment originates

3. Import Clearance based on Risk Framework and Inspection

The Food Safety and Standards Authority of India (FSSAI) has proposed to adopt a mechanism that would clear the imported food product depending on a risk-based inspection and a risk -based framework.

In order to achieve this, the FSSAI would create a database by collecting data of the various stakeholders like, Clearing House Agents, Manufacturers Food Importers, Imported food products, country of origin, ports of entry , compliance history of the company and other factors and parameters that would better estimate the product risk.

For regulating the imports, the FSSAI is also in process of introducing the Pre-Arrival Document Review (PADR). As the risk-based framework becomes operational, the sampling procedure would improve significantly.

The procedure and documentation required for the clearance of food consignment is discussed below:

1. An application for clearance of Import consignment must be submitted by the food importer or his CHA. The application must contain details of the CHA and/or the Food importer; namely, address, email id, CHA’s license number, Food importer’s code etc.
2. The application must contain the details mentioned below:

• Date of packaging and/or manufacturing of the food product
• Best before date and/or expiry date.
• Exporting country’s name
• Manufacturing Country
• Dispatch date of the food product from the exporting country.
• Description and Quantity of food product consignment
• FSS code of the food product as mandated by the FSSAI
• Food Product Consignment Invoice Value in INR

A list of documents as mentioned below, are mandatorily required to be submitted along with the application form:

• Details as required in Form ‘A’
• Central Board of Excise and Custom’s EDI system generated Examination order and Bill of Entry.
• A plan of recall
• Declaration of End Usage
• Certificate f Country of Origin (COO)
• A laboratory report of the food product from an authorized laboratory from the country of origin.
• The regulatory status of the food product, along with the Free Sale Certificate (FSC) and safety assurance report of the food product from the origin country must be declared.

4. MOUs with Trade Partners:

The Ministry of Commerce and Industries (MCI) and the Food Safety and Standards Authority of India (FSSAI) would jointly try to seek entering into Memorandums of Understanding (MOUs), which would work on a reciprocal basis, with agencies and allied service providers in exporting countries to accelerate the process of clearance of consignments of food products from such countries. This could also entail shortlisting scientific laboratories that specialize in food technology in exporting countries for pre-sampling and testing of food product prior to their import to India.

5. Guidelines for Labeling and Packaging

• The food products that are imported must mandatorily comply with the Labeling and Packaging Regulation, 2011.
• If a consignment consists of different food categories or multiple food products packed and shipped in a single container must be packaged in a manner that would make it easier for the inspecting officers to collect samples of the different food products in the consignment.
• Should the consignment of food products be found non-compliant of the packaging and labeling regulations, the consignment would be rejected upon visual inspection without collecting any samples from the consignment.
• The Labeling and Packaging regulation accounts for special exemptions of labeling of name and address of importing company, the importing company can attach the Veg/Non-Veg logo in a customs warehouse, after the import of the food product consignment .The AO can direct an order notifying the importer to undertake the labeling recertification that is permissible, within a stimulated timeframe in the customs warehouse on the condition that the importer of the food product consignment wouldn’t mask the original label information. After the recertification, the AO would carry out another inspection.
• Should the importer of the food product consignment fail to satisfactorily rectify the defects that are permissible in the Labeling and Packaging regulations, the AO is within his rights to issue an NCC and refuse the clearance of the said food product consignment.
• The imported food product from which the sample shall be obtained must have the label information as specified below:
  • Location and Date of food sample collection
  • Name of the food product
  • Sample code number
  • Sample quantity obtained
  • If preservatives are added to the food product for sampling purpose, name of the preservative.
  • Official acknowledgement of signature and name of the sender.
  • Signature and name of the Clear House Agent and/or the Food product consignment importer.

6. Storage

When in Customs warehouse no part of the product consignment is allowed to come in contact with other food products in the warehouse. Imported food products consignments requiring special storage conditions would require the Authorized Officer to first check for the availability of storage space and storage conditions in the Custom’s warehouse. If a suitable storage space isn’t found, the Authorized Officer could permit the food product consignment’s movement to a storage facility that is well-equipped, should the importer of the food product consignment choose to do so.

Every food product consignment that is imported should be stored in strict adherence to the conditions prescribed by the custom warehouse before obtaining clearance certificate from the Authorized Officer. Should the importer of his Clearing House Agent (CHA) fail to do so, the Authorized could deny granting No Objection Certificate (NOC) for the clearance of the food product consignment.

7. Process of Reviewing Application

The Food Safety and Standards Authority of India (FSSAI) has set up a grievance redressal mechanism so that the Importers of the food product consignment  can file for a review application, addressed to the reviewing officer; should the importer have been aggrieved by any orders of the Authorized Officer mentioned below:

• An order that directed the food product importer to correct the food product label.
• A report from the food analyst that states that the food product is non-compliant with the FSSAI regulations, leading to rejection.
• Any form of non-conformity with the regulations that lead to rejection of the food products from being cleared.

References

1. http://foodsafetyhelpline.com/2016/01/fssai-notifies-standards-for-food-import-with-immediate-effect/
2. http://agriexchange.apeda.gov.in/IR_Standards/Import_Regulation/2016%20Food%20Import%20RegulationsNew%20DelhiIndia1292016.pdf
3. http://www.thehindubusinessline.com/economy/policy/no-import-of-food-items-with-less-than-60-shelf-life-fssai/article9592913.ece
4. http://www.mondaq.com/india/x/459606/food+drugs+law/FSSAI+Issues+New+Rules+For+Import+Of+Food
5. https://www.eolss.net/sample-chapters/c10/E5-08-02-04.pdf
6. http://www.fao.org/food/food-safety-quality/capacity-development/food-regulations/en/
7. http://www.fssai.gov.in/home/imports/import-regulations.html
8. http://old.fssai.gov.in/Portals/0/pdf/Draft_Import_Regulation.pdf
9. https://fssai.gov.in/dam/jcr:943a1ab4-17bb-4a8e-b451-32b77da9a384/FAQs_Import_31_03_2017.pdf
10. https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&cad=rja&uact=8&ved=0ahUKEwjn0Y_-6_nVAhUITI8KHZPeD_cQFghZMAk&url=https%3A%2F%2Fwww.fas.usda.gov%2Fdata%2Findia-2016-food-import-regulations&usg=AFQjCNGAZccFunwcRRslvotwy-IzzwX_DA