This article is written by Dnyaneshwari Patil, from RTMNU Babasaheb Ambedkar College of Law, Nagpur. In this article, she discusses the food adulterations laws in India and their evolution. The loopholes in the Acts and the major role of the judiciary in its implementation.
Adulteration is one of the thriving businesses in India in which food is an easy and major target. Adulteration is adding unwanted substances to the food substance having a similar appearance or colour to increase the volume of the product. In today’s money-minded market, an ever-growing population and their increasing needs, people are getting involved in malpractices so that they can be in a profitable position by increasing the number of products using cheap substitutes. Thus, adulteration in food substances has increased drastically. Adulteration might be profiteering for the businesses but it is hazardous to public health as it lowers the quality of the food and sometimes toxic chemicals are also added.
The Annual Public Laboratory Testing Report for 2014-15 by the Food Safety and Standards Authority of India (FSSAI) has analyzed around 74010 numbers of food samples and found 14599 numbers of samples adulterated and misbranded.
Food adulteration laws in India – an insight
In India before independence, the Indian Penal Code contained provisions to take care of noxious food. Section 272 and 273 dealt with the adulteration of foods and drinks to make them noxious, and the sale of such noxious drinks. Thus adulteration is a crime under IPC punishable with imprisonment of six months with a fine up to Rs.1000. However, the crime under IPC arises only when the food article which is adulterated has become noxious. In this case, Ram Dayal And Ors. v. Emperor (1923), the accused was selling ghee with a mixture of pig fat. The Privy Council held that the mixing of pig fat with the ghee is noxious to the religious feelings of the Hindus and Mohammedans but it would not come under the expression “noxious as food”. Noxious includes “ unwholesomeness or injurious to health but not repugnant to one’s feeling”.
Along with this, different states had different laws enacted to prevent the adulteration of foods. Thus, it made it difficult for the implementation authorities, as different territories dealt with different laws for the same subject. Therefore in 1954, the central government consolidated legal provisions and enacted the Prevention of Food Adulteration Act, 1954. It repealed all the laws regarding adulteration which were in force at that time. The main objective of the PFA was to prevent ill-health of the consumer due to adulteration, protect the nutritional standard of a foodstuff by regulating and restricting the addition of the substitute substances. These laws applied both to indigenously made food and imported food. Rules were framed by the ‘Central Committee for Food Standards‘ from time to time to make the Act more stringent. Thus the Act was amended in 1964, 1976, and later in 1986. Later there were several defects found in PFA thus to tackle the problems the central government consolidated the provisions of food safety acts and enacted the Food Safety and Standard Act in 2006 (FSSA). The PFA act was repealed and several other Acts such as the Milk and Milk Products Order, 1992, the Fruit Products Order, 1955, the Meat Food Products Order, 1973, etc got repealed.
Currently, the laws which are in force are:
- Food Safety and Standards Act, 2006
- Food Safety and Standards (Licensing and Registration of Food Businesses) Regulation, 2011.
- Food Safety and Standards (Packaging and Labeling) Regulation, 2011.
- Food Safety and Standards (Laboratory and Sampling Analysis) Regulation, 2011.
- Food Safety and Standards (Food Product Standards and Food Additives) Regulation, 2011.
Position under the Indian Penal Code, 1860
Under IPC offences of adulteration were mentioned under sections 272 and 273, punishable to the extent of 6 months imprisonment and fine to the extent of Rs.1000. However, the states like Uttar Pradesh, West Bengal made amendments to the provision in the 1970s and made the offences punishable up to life imprisonment and fine. Orissa also followed the same path and amended the provision in 1999. Taking these amendments in mind the central government made few offences punishable up to life imprisonment but all these amendments got repealed after the introduction of FSSA 2006. This 2006 Act repealed all provisions relating to food safety but did not repeal the state amendments in IPC.
In the case of M/S PepsiCo India Holdings private limited and anr. v. State Of U.P. (2010), the state government filed an FIR against the Company under Section 272/273 of IPC. This action of the state was challenged by Pepsico India Holding. Their main contention was that section 272/273 of IPC was repealed by the 2006 Act. In the case of food adulteration and food safety, the 2006 Act occupies the complete field. The High Court was of the view that the entire procedure and inquiry was to be done under the 2006 Act and invoking the provision of IPC would be unjustified. Thus applying the principle of generalia specialibus non derogant, the provision of the Indian Penal Code was held inapplicable by the High Court of Allahabad in this case.
However, in the State of Maharashtra v. Sayyad Hassan Sayyed Subham (2018), the Supreme Court held that “if an act or an omission constitutes an offence under two enactments and prescribes punishment for the same. The offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence”. Thus just because the provisions of FSSA mention penalties for the offence, it does not imply that one cannot be prosecuted under IPC.
Loopholes in the Food Safety and Standard Act, 2006
- The unorganised sectors are ignored in the Act. It contains petty manufacturers, hawkers, retailers which contribute a lot to the unorganised sector. It mainly emphasises the processing industry. The primary sector is included in the Act but the agricultural sector producing primary food is ignored.
- The financial supply is not adequate. The majority of the money allocated was used to develop the infrastructure of the food authority and the remaining was utilized for the establishment of laboratories, which are negligible. The lack of adequate food testing laboratories to scrutinize the food manufacturing and processing industries which ensures the hygiene quality, safety in the food.
- The food authority is understaffed and underfunded and is not able to pace up with the increasing industry of food. Staff is filled with bureaucrats and non-technical persons are holding some important office not knowing how to handle some complex issues associated with the food. At the ground level, the food authorities are not competent to monitor the situation. There is also a shortage of licensing officers. Provisions under the Act which authorize the grant of a license, the penalty may lead to corruption.
- There are many undefined words and terms in the Act, which unnecessarily increase the litigation period. The limitation time is only one year, before its expiration the case has to be brought under the authority notice. Adopting international standards without realising the compliance capacity of the domestic food sector and the implementation of these international standards becomes challenging.
- There are doubts about the standard procedures followed by the laboratories while scrutinizing the products. This came into focus when lead and monosodium glutamate were found in Maggi. States like Maharashtra, Punjab, and Kerala banned the product, however, the amount of lead found in Maggi in states like Karnataka, West Bengal, Goa, and Chhattisgarh were under safe levels. Thus this questions the confusion around the procedures and standards defined in different states.
In Nestle India Limited v. The Food Safety and Standards Authority of India (2015) (the Maggi Case). In this, the petitioner- company was ordered to stop the manufacturing, distribution, etc of the 9 types of a variant of products of noodles manufactured by the company. The court expressed that the principle of natural justice was not followed. The company, a day prior to the impugned order, recalled all the products till the authorities were satisfied with the safety of the product. And it was also realised that the laboratories where the products were tested for high quantities of lead, were not accredited and recognised under the Act, and relying on their test result would not be justified.
The supreme role of the judiciary
- In Centre for Public Interest Litigation v. Union of India (2013), the writ petitioner alleged the adulteration of soft drinks. The Supreme Court observed that people are protected under Article 21 against the hazardous and injurious food article and it is the duty of the state to ensure such rights are protected under Article 47. It was held that the number of insecticides and pesticides contained in the food article was beyond the tolerable amount which is not good for children’s health and therefore directed the state authorities to effectively implement the statutory scheme and penal provisions and directed the food authority to conduct periodical monitoring of fruits and vegetable markets while taking into consideration the prevalent national and international standards and practices and shall be guided by the general principle of food safety.
- In Swami Achyutanand Tirth & Ors v. Union Of India & Ors. (2016), the petitioner filed public interest litigation highlighting the concern about the growing sale of adulterated and synthetic milk, all over India. Thus Public interest litigation was filed to seek direction from the state and central government to take appropriate steps to curb the activity. Therefore the court issued the following directions:
- The Union and state governments should take appropriate steps to implement the FSSA in a more effective way.
- To inform the dairy owners and retailers that stringent steps would be taken if any chemical adulterant is found in the milk.
- The State Food Safety Authority (SFSA) should identify high-risk areas and times when there are high chances of ingesting milk and milk products, and collect samples from those areas.
- State Food Safety Authorities should ensure that all laboratories should obtain NABL (National Accreditation Board for Testing and Calibration Laboratories) accreditation along with having well-equipped lab testing infrastructure and technical persons to handle it.
- Measures should be taken by the SFSA and district authorities for a sampling of the products including spot testing for conducting qualitative tests of adulteration in the food.
- Snap short survey tests should be conducted periodically at the state and national levels.
- State Level Committee headed by the Chief Secretary or the Secretary of Dairy Department and District Level Committee headed by the concerned District Collector shall be constituted to take a review of the work done in curbing the adulteration by the authorities.
- The concerned state department shall set up a website that will be responsible for creating awareness about complaint mechanism functioning and the responsibilities of food safety authorities. The website will have the contact details of food safety officers and a toll-free telephone number. Directing the concerned government to put a check on corruption and unethical practices by Food Authorities and their officers by evolving the complaint mechanism
- The State/ food authority/ Commissioner of food safety shall inform the general public about the ill effect on health due to adulteration, educate the children through workshops, etc. in determining adulterated components in food. In short, it’s their duty to increase awareness among people.
The laws are descriptive and considered as good laws but the problem lies in their poor implementation. The need was felt to bring amendments to the Food Safety and Standard Act. In accordance with the interim order by the Supreme Court, the government ought to review the Food Safety and Standard Act rules and regulations to address the concerns of the court regarding food adulteration and implementation of the Act 2006. Therefore the Ministry of Health and Family Welfare on September 23, 2020, framed a Food Safety and Standards (Amendment) Bill, 2020. It aims to upgrade and improve the functioning and jurisdiction of the Act. However, apart from the consolidation of the laws relating to food safety, quality and standards, the food authority should focus on the systematic and scientific development of the food industries. The implementation of the legislation is still at its beginning stage and the food authorities would require time to bring the legislation into its full force.
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