This article is written by Mahima Sharma, pursuing LLB from Symbiosis Law School Pune. The author in this article has analyzed the concept of the right to hygienic food, and the legislative framework which governs this right, following which the author has discussed some of the important judgment on the issue.

Introduction

Food protection is a major public health issue in one of the most populated countries on the planet, India. The challenges of feeding a large geographically dispersed population, millions of whom are poor and undernourished, are immense. That has contributed to the proliferation of illicit, deceptive, and bootleg vendors, and weak policy. 

India has a “significant” hunger crisis and ranks 100th out of 119 countries in the global hunger index following North Korea, Bangladesh, and Iraq (World Hunger Index 2017). Over 20% of Indian kids under the age of 5 are of lower weight in comparison to their height. India, even after being the second-largest producer of fruit accounting for 10.8% of world fruit production, has the second-largest malnutrition population in the world. 

The increasing economic growth, rising income, and continuous urbanization has led to the change in the Indians eating habit, hence there is increased demand for more variety of food rather than the quality of food. Recently many cases of food contamination have been reported, one such case of Nestle- Maggie noodles of 2015 where the product was recalled due to the belief that it had the presence of high lead contamination which could result in a massive health hazard, similarly there have been reports of food poisoning in school meals and also heavy pesticides residues have been found in the packed food products. Hence these emerging cases of food contamination if remain unnoticed by the regulatory authority, can result in an outbreak of untreatable disease and even death. And indirectly it can also cause distress in the export market and affect the socio-economic status of our country. 

Responsibility of the regulator of food safety

Till the emergence of the 21st century, there were several different laws governing food manufacturing business in India. The prevailing laws/regulations adopted by the  State to validate the food quality and drugs prescribed a variety of standards: Feed coloring, toxins, organic flavors, preservatives, and packaging.

In order to streamline the vast array of food legislation, the Food Safety Standards Agency of India (FSSAI) has officially been set up, under the Food Safety and the Standard Act, 2006, to recommend laws and other initiatives to establish an advanced, integrated and balanced law, which would be a standard and single Point of reference for the regulation of food items.

The following are the duties and responsibility of the food authority of India-

1. To control and track the manufacturing, production, delivery, selling, and import of food in such a manner as to maintain nutritious and balanced food.
2. The Food Licensing Authority may, by its regulations, specify –Requirements and recommendations relating to food articles and establishing an effective framework for the compliance of the different standards listed under this Act;
3. Can also specify Constraints on the usage of dietary chemicals, harmful chemicals, manufacturing supports, mycotoxins, seed pesticides, chemical traces, traces of pharmaceutical medicines, antibiotics and pharmacologically active substances and plant irradiation; Mechanisms and criteria for the accreditation of regulatory bodies involved in the implementation of food health control programs for food businesses; Methods and implementation of quality assurance in respect to every item of food transported into India;
4. Methodology and guidelines for the accreditation of laboratories and the notification of accredited laboratories; System of collection, review, and sharing of information between the law enforcement authorities; Made a study of the implementation and implementation of this Act in the country;
5. The Food Regulatory Authority shall also –

(A) Provide the expert advice and then also technical assistance to the Central Government and the Governments of the State on policy-making and guidelines in regions that have a positive or negative effect on food hygiene and nutrition;

(B) For searching, collecting, analyzing, evaluating and summarizing applicable science and technological data relating in particular to –

1. Nutrition intake and vulnerability of people to hazards linked to food use;
2. The occurrence and severity of environmental hazards;
3. Contaminants in foods;
4. Residues with various contaminants;
5. Detection of possible risks;

(C) Consider taking all these measures to ensure that the public, customers, stakeholders and all tiers of panchayats acquire timely, accurate, unbiased and detailed information by adequate methods and means;

(D) Focus on providing, whether inside or beyond their region, food safety training programs and guidelines for persons who are or wish to engage in the food business, whether as food business operators or employees or otherwise;

6. The Nutrition Licensing Authority shall render it public without any delays –

the views of the Scientific Committee and the Scientific Council immediately after its adoption;

Yearly statement of concern provided by the representatives of the Food Licensing Authority, the Chief Executive Officer, the leaders of the Advisory Committee and the representatives of the Technical Committee and the Technical Panel; and the result of its scientific studies and the statistical study on its activities.

7. The Food Authority of India shall not reveal to external parties sensitive information which it collects for which confidential care has been sought and provided, except for the details that are important to be made public under the act and if the circumstances so require.

8. Many FSSAI initiatives have been introduced to spread the knowledge of safe food at home, schools, workplaces, food stores, religious places, and railway stations.

Constitutional validity

There is no reference to the term food safety in the Constitution of India. However, Entry 18 in List III of the Constitution empowers both the parliament and the state legislature to enact the law on the adulteration of food. And in this respect, various laws have been enacted. Accordingly, every citizen of the country has a fundamental right to safe and nutritious food as Article 21 imparts the right to life, and Article 47 imposes a duty on the state to raise the level of nutrition and public health by safeguarding the right to food from any adulteration. Food safety and standards are important requirements for the protection of the right to life and public health.

• Right to life under Article 21-

After the case of Maneka Gandhi vs Union of India, the scope of Article 21 has broadened and hence it has been decided in many cases to include the right to health, freedom from hazards, and environmental pollution.

In Centre for Public Interest litigation vs. Union of India & Ors it was held that it is a well-settled principle that the Right to livelihood must entail the right to live with the dignity that is to have a healthy and safe life, which is only feasible if nutritious and balanced food were accessible for human consumption. It can not be ignored that the problem of food protection and the right to nutritious food is a subject of national as well as foreign importance. The regulation on food protection should be perceived and enforced in the context of constitutional principles to obtain the intended outcome. Achievements and enjoyment of life along with the right to life and human dignity contain within its spectrum the accessibility of quality food, without insecticides or traces of pesticides, etc.

• Article 47 of the Constitution of India-

Sustaining public health, improving quality of life and nutrition are the values of directive principles of state policy. Article 47 of the Constitution of India states as ” the state shall take into account the increase in the level of nutrition and the standard of living of its people and improvement of public health, as one of its primary duties, in the particular state shall endeavor to impose a ban on the production of contaminated food, intoxicating beverages, and medicines that are detrimental to human health.

Legislative provisions governing the right to hygienic food

The Indian food processing industry is governed by a number of laws governing facets of hygiene, licensing, and other prospective bases that are required to start and run a food business. The law concerned with food health in India was the Prevention of Food Alteration Act, 1954 (‘PFA’). The PFA was in place for more than five decades and there was a need for modification due to several purposes, including the changing requirements of our food industry.

The Act replacing the PFA is the Food Safety and Standards Act, 2006 (hereinafter referred to as the FSSA) which supersedes all other food-related laws. Specifically, it repealed eight laws that were in force before the FSSA was enforced:

1. The Prevention of Food Adulteration Act, 1954
2. The Fruit Products Order, 1955
3. The Meat Food Products Order, 1973
4. The Vegetable Oil Products (Control) Order, 1947
5. The Edible Oils Packaging (Regulation) Order, 1998
6. The Solvent Extracted Oil, De oiled Meal, and Edible Flour (Control) Order, 1967
7. Milk and Milk Product Order, 1992
8. Essential Commodities Act, 1955 (in relation to food)

FSSAI is an Act to combine the laws on food and to formulate the Food Safety and Standards Authority of India to set down scientific standards for food products and to govern their manufacture, storage, distribution, sale, and import, to facilitate the provision of safe and healthy food for human consumption and related or attributable issues.

Litigation of harmful effects of soft drink in India

Referring to the latest ruling of the Supreme Court in the case Centre for Public Interest Litigation vs. Union of India & Ors. In the specific situation of the subject of the harmful effect of soft drinks on public health and the evaluation of the regulations of the FSS Act on the various principles of food safety as laid down in Section 18 and other provisions of the Act, As mentioned by the Supreme Court, it is not only a regulatory obligation for food agencies to provide a system for rendering healthy food items accessible to customers, but a constitutional necessity arising from the requirements of Article 21, and as laid out in Article 39 and Article 47 of the Constitution of India.

Provisions relating to the compensation in case of injury or death of a consumer

According to Section 65 of chapter IX Offences and Penalty of FSSAI Act, 2006 

1. Without regard to the other conditions of this Chapter, whether by an individual or by an entity, He or she, or any other person on his or her behalf, manufactures or distributes or imports Any item of food that induces harm or death to the customer, it shall be lawful for The Adjudicator or, as the case may be, the court to order him to pay the fee to Victim or legal representative a sum,

(a) not less than five lakh rupees in case of death; 

(b) not exceeding three lakh rupees in case of grievous injury; and

(c) not exceeding one lakh rupees, in all other cases of injury: 

Provided that the compensation is paid as soon as possible but in no case later than

Six months from the day of the altercation:

Provided further that, in the case of death, a temporary benefit shall be given to the family within thirty days of the accident.

2. Where a person is found guilty of an offense leading to a serious injury or death, The Adjudicator or the Court may inevitably lead to the name and place of residence of. The person found guilty, the offense and the penalty imposed to be published on the offender. Expenses in newspapers or in a manner other than that of the Adjudicator or the Court Maybe direct and the expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.

3. The Adjudicator or the Court may also—

(a) the cancelation order of license, the recall of food from the market, the forfeiture or Establishment and properties in case of severe injury or death of the consumer;

(b) in certain situations, grant prohibition orders.

Provisions for food adulteration 

The FSSAI regulations provide for specific punishments for individuals who have adulterated food or food items as referred to in:

1. Import, produce packaging, selling, or delivery of any food item which is adulterated by enabling its consistency or purity to slip below the specified level or is misbranded or in contravention of any clause of the Act or the Rules of Procedure. The penalty for this offense is minimum imprisonment of six months that may extend up to 3 years and a minimum fine of Rs 1000.
2. Import, manufacture, storage, sale, or distribution of any adulterant that is not harmful to health. The penalty shall be a minimum prison term of six months, which may be extended to 3 years and a minimum fine of Rs 1000.
3. Preventing a Food investigator from collecting samples or exercising the power, his penalty shall be a minimum of six months ‘ imprisonment, which may be extended up to three years and a minimum fine of Rs 1000.
4. A false guarantee is issued in writing in support of any food item. The penalty shall be a fixed jail sentence of six months, which can be increased to 3 years and a total penalty of Rs 1000.
5. The production, produce, packaging, selling, or delivery of any adulterated food commodity or an adulterant that is detrimental to health shall be prohibited by statute. The penalty shall be a fixed jail sentence of one year, which can be increased to 6 years and a total penalty of Rs 2000.
6. Sale or distribution of any food item containing any toxic or other health-injurious ingredients that are likely to cause death or serious bodily harm. The penalty shall be a minimum prison term of three years, which may extend to life and a minimum fine of Rs 5000. 

Adulteration of food is described as “addition or subtraction of any material to or from food in such a way that it affects the natural state and quality of the food substance.” Adulteration may be intentional, either by removing substances from food or by intentionally altering the existing natural properties of food.

Landmark judgments

1. M/s Nestle India Limited v. The Food Safety and Standards

In the case of M/s Nestle India Limited vs The Food Safety And Standards, Maggie, a Nestle commodity, was tested by the FSSAI and faced legal implications for impermissible amounts of monosodium glutamate (‘MSG’) and lead in the noodles. FSSAI held Maggi accountable for the following reasons:

1. Excessive lead content
2. Misled customer by labeling product with ‘No added MSG’
3. Was marketing maggie without FSSAI product approval.

The High Court of Mumbai in M / s Nestle India vs. FSSAI, upon analyzing all the proposals, delivered the following judgment as a further appeal to Nestle:

1. The variations of the Maggie Noodles available to the Petitioner would be tested.
2. Five samples from each batch in their custody are to be submitted to three Food Labs approved and accepted by the NABL, Vimla Lab. (Hyderabad), Punjab Biotechnology Incubator, Agri & Food Testing Laboratory (Mohali) and CEG Test House and Research Center Pvt. Ltd. (Jaipur, Jaipur), if the results show the lead in the permissible amount of 0.25% then only the company will be permitted to start the manufacturing process.
3. Maggie products will have to go through the approval process under the FSS act and additionally the company was directed to delete  ‘No added MSG’ from the label of the product.

2. M/s Omkar Agency v. Food Safety and Standard Authority of India

 In the case of M/S Omkar Agency vs. Food Safety and Standard Authority of India, the Patna High Court, smokeless tobacco producers tested a Food Safety Commissioner request restricting the sale of zarda, container masala, and gutka under Section 30(a) of the Food Safety and Standards Act, 2006 (“Food Act”). The makers claimed that the preclusion was not passable as such items were allowed to be sold under India’s omnibus Tobacco Control Law, 2003 COTPA. The makers additionally affirmed that they were not food business administrators under the Food Act and, in this way, were not required to submit to the Act’s prerequisites.

 The Court struck down the prohibition order, in addition to other things, that:

1. gutka and tobacco (by and large), are not food as the Food Act doesn’t endorse norms for their assembling, deal or dissemination;
2. while pan masala is food, the Commissioner didn’t depend on target proof (which he/she should do under the Food Act) to give the sweeping forbiddance on all brands of pan masala, regardless of whether they contain tobacco;
3. tobacco isn’t food and, thus, can’t be directed by the Food Act; and
4. since COTPA, which is a focal law, allows the production and creation of tobacco and tobacco-based items, smokeless items can’t be restricted.

                   

3. Academy of Nutrition Improvement & Ors v. Union of India

In the case of the Academy of Nutrition Improvement & Ors vs Union of India, The petitioners in these writ petitions are non-governmental organizations representing consumers, salt producers, medical experts, academics, etc. They oppose the compulsory iodization of salt for human consumption.

Hence the court held that where an item of food (used in the composition or preparation of human food and used as a flavoring) is in its natural form and is unadulterated and is not injurious to health, a rule cannot be made under the provisions of the Act to ban the manufacture for sale, storage or sale of such food item on the ground such ban will ensure that the populace will use a medicated form of such of food, which will benefit a section of the populace. that as at present there is no material to show that universal salt iodization will be injurious to public health (that is to the majority of the populace who do not suffer from iodine deficiency). But we are constrained to hold that Rule 44-I is ultra vires the Act and therefore, not valid. The result would be that the ban on the sale of non-iodized salt for human consumption will be raised, which may not be in the interest of public health. We are, therefore, of the view that the central government should have at least six months to thoroughly review the compulsory iodization policy (universal salt iodization for human consumption) regarding latest inputs and research data and if after such review, is of the view that universal iodization scheme requires to be continued, bring appropriate legislation or other measures in accordance with the law to continue the compulsory iodization program.

Conclusion

Our Constitution provides for public welfare and the development of people in general, ensuring this Food protection is essential to this. Unsafe food is harmful to the growth and advancement of the country. The Constitution empowers both the Parliament and the State assemblies to pass legislation against food Adulteration. In fact, it requires us to start increasing the quality of diet, the norm of diet. Life of its people and promoting good safety as one of its main duties. Providing children with a healthy environment and condition for their all-round growth is also a directive to the constitution which is inevitable without healthy and nutritious food.

Access to healthy and balanced food Nutrition is a fundamental right to life. Unsafe food infringes the freedom of the right to live with dignity. The Supreme Court and the High Court made it clear in their various pronouncements. The Supreme Court has ruled that the laws pertaining to food protection must be viewed in the context of the above Democratic priorities. The Judiciary has always made it known that food protection is a critical element of the right to life takes precedence over the freedom to trade, profession, and business appertaining to Article 19(1)(g). Trade secrets can not take precedence over the right to healthy and nutritious food. Consequently, another other Maggie debate must not bring up issues about why Maggie alone should be trotted out or addressed by filing disputes against the regulator or on the constitutional status of the Act, but that should encourage companies encumbered by corporate social responsibility underneath the law and otherwise remember that this is an era of corporate responsibility.

References

1. https://fssai.gov.in/cms/eat-right-india.php
2. https://nhrc.nic.in/press-release/right-food-fundamental-right

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