With power comes responsibility. But it’s easy to get drunk on power, and forget about responsibility. The Food Safety and Standards Authority of India (FSSAI), in its eight years of existence, seems to be hell-bent on proving exactly this. Set up with great fanfare to raise the hygiene and safety standards of food products in India, FSSAI is today, far removed from its core objectives and has ended up being just a penal authority. Why else is the industry, which generally tries to avoid being on the wrong books of the bureaucracy, repeatedly knocking the doors of the judiciary for respite against FSSAI’s diktats? And have such repeated frictions with the industry led to any introspection from within FSSAI’s ranks? Or have they only made India’s food regulator more of a confrontationist?
Naveen Kumar | The Dollar Business
Two years back, Nikhil Chib, owner of Busaba, a fine dining restaurant in South Mumbai, which uses several imported ingredients to satiate taste buds of its patrons, suddenly started facing a new problem. Every time he decided to replenish his kitchen, he found prices to have risen by a quarter. Although initially, he avoided passing on the additional cost to his customers, he saw his margins dwindle by the week as the abnormal price spikes continued.
Kabir Suri, Director, Azure Hospitality Pvt. Ltd. (of Mamagoto fame), was a bit more proactive. Seeing such frequent jumps in prices, he started looking for replacements and in fact, tweaked his offerings in order to avoid the dependency on imported ingredients. For, the ingredients that were witnessing such frequent spikes in prices were not one or two, but included confectioneries, alcoholic beverages, processed meat, poultry products, dairy products, sauces, vinegar, edible oil, mayonnaise, mushrooms and even fruits and vegetables. Giving an idea to The Dollar Business of how bad the situation had become, Suri said, “It was not only the case with distributors or suppliers, but it happened with even many embassies in India! A lot of embassies that directly import a lot of products for consumption, saw their consignments getting stuck at ports. These included items like cheese, ham and all kinds of meat.”
Such regular artificial scarcities shook up India’s food industry. For, it was not a case of a sudden rise in demand, or fall in supply, or a drought, famine or illegal hoarding, it was simply a function of these imported food items getting stuck at Indian ports due to delays and/or rejections in getting clearances from the by then already dreaded Food Safety and Standard Authority of India (FSSAI). The enormity of the problem can be gauged from the fact that according to certain reports, FSSAI related issues have already affected the supply of food items worth Rs.25,000 crore!
The big bang theory
A decade before Suri and Chib started finding out how obstructionist FSSAI had become, cricketers Harbhajan Singh and Virender Sehwag were each fined during the Indian cricket team’s tour to New Zealand. Their fault? Carrying undeclared dirty boots! This, because being a leading exporter of food items, New Zealand is extremely sensitive to bio-security, which, of course, was and is not the case with India. Anyone disputing this claim should walk up to the nearest pani puri-gol gappa stall! In fact, the main reason for Indian food item exports to have failed to attain the heights they were always expected to, are our poor hygiene and safety standards.
Without a proper food regulator, Indian food exports have always been looked at suspiciously in the developed world. Since these countries themselves follow strict food safety standards, backed by strong and transparent regulations and accreditation systems, they had a valid reason to be skeptical of Indian food item exports, which were governed by archaic laws like The Prevention of Food Adulteration Act, which was enacted in 1955 and covered only 355 food products. Mindful of this, the Government of India, had for years been trying to bring about a legislation, if not for the well being of Indians, then at least to see Indian food product exports rising.
The result of all this was FSSAI, which was set up in 2006 by an act of the parliament merging all seven existing acts, including The Prevention of Food Adulteration Act. Once it was passed, there was a mood of exuberance as India now had a food regulator to meet the challenges of the contemporary world and take the country close to the best global standards. Apart from addressing food safety standards in India, the industry was expecting the new body to regulate, train, and sensitise it to global hygiene and safety standards. FSSAI was expected to increase the acceptability of Indian food items overseas and increase their footprints across international markets.
However, despite all the good intentions, things started moving in the wrong direction almost from day one as FSSAI started primarily targeting – some claim only targeting – food imports. And this turned out to be a menace for importers as well as end-users. Speaking about this aspect, Anil Chandhok, Director, Chenab Impex, a Mumbai based importer of gourmet food products, told The Dollar Business, “Non-availability of many imported food items has become the biggest problem as you do not know when your consignment is going to be approved. How can you plan your supply chain in such uncertainty? You cannot take advance orders because in all fairness, you don’t know how your consignment will be handled at the port.”
This situation, which has not only resulted in many overseas suppliers moving their shipment elsewhere, but also MNCs shutting or curtailing their Indian operations, suggests that the food authority has, definitely, failed as a facilitator of trade and is, probably, far removed from ground realities.
Getting Sticky
The first round of friction between FSSAI and the food industry started with the former introducing new labelling norms in 2011. As per the new guidelines, all manufacturers of pre-packaged food items were required to mention a list, both in English and Hindi, of all ingredients used, their nutritious value, name and address of the producer, and the country of origin.
Interestingly, these new norms were not effectively enforced in the initial months and business went on as usual, until FSSAI babus suddenly woke up one fine morning from their slumber and started a witch hunt. And that’s when it all started!
Trouble-me-not
Apart from the disclosure requirements, the labelling norms also mandate the manufacturer to use different colours – green for vegetarian and red for non-vegetarian – in the packaging. What made things very difficult for importers was the fact that FSSAI no longer allowed the practice of labelling the food items after they were unloaded at Indian ports, but insisted that this be done at the place of manufacture. This left importers high and dry. Suri said, “The issue is more with the overseas manufacturers and suppliers than us as they now have to start packaging differently for the Indian market. However, since their manufacturing happens on a global scale, India-dedicated packaging pushes the cost up. As a result, they pass on the cost to us and we pass it onto the end-consumer. Ultimately, it is the consumer living here in India who suffers.” And since exports to India were just a fraction of a manufacturer’s overall exports, it hardly made any business sense for it to adhere to these norms. On the other hand, small Indian importers were in no position to bear this additional cost. The result? Containers carrying food items started piling up at Indian ports.
Testing Times
The crisis over new labelling norms was just the starting point as FSSAI thereafter moved onto testing norms by abandoning the earlier practice of randomly collecting just one or two samples from a consignment and insisted on testing one sample from every product variant. Making his displeasure regarding this aspect very clear, an agitated Amit Lohani, Convenor, FIFI (Forum of Indian Food Importers), told The Dollar Business, “There is no provision for this (in the Act). It was as if one officer suddenly got up one night, pulled out a piece of paper, put it on the wall of the FSSAI office and said, from 13th September, 2013, we will do 100% sampling.” When asked what could be the motive for such a move, Lohani said, “It was basically to help private laboratories because they were not getting enough samples and were putting pressure on FSSAI.”
Speaking his mind on the sampling issue, Chandhok said, “Earlier, if you had 10 different flavours of biscuits, they would draw one or two and test them. So, you had to pay for the cost of testing just one or two samples. Now, they are drawing one from each flavour, which takes the sample size to 10. If one testing costs Rs.3,600 and your consignment has 10 flavours of biscuits, you end up paying Rs.36,000 just for testing. If the import value of your consignment is (say) Rs.4 lakh, then the cost has gone up by 8% just because of extra testing.” He further added, “Every shipment is now delayed. If a shipment used to earlier take seven days to get the clearance, including the testing by the Public Health Officer (PHO) and Customs, today, it is taking 3-4 weeks. It means even demurrage goes up, because the longer you keep it waiting for clearance, the higher the rate of demurrage that is charged. And if you consider refrigerated cargo, the amount of demurrage becomes enormous.”
After speaking to Chandhok, it’s not hard to imagine the kind of problems an importer of frozen foods goes through today. In fact, at times, just the demurrage cost of frozen food becomes more than the value of the product itself. Validating Chandhok’s claims, Laxmikant Kejriwal, Head, Sea Import Cargo Operations, Narendra Forwarders Pvt. Ltd. said, “In some cases, because of the delays, refrigerated products have to be kept in the open, which affects their quality and reduces their chances of clearing the tests.” In the case of importers, this is definitely an unhappy situation that makes for a healthy business sense.
Government Gimmicky
As compared to more than 3,500 categories of food products that are listed and regularly updated in global food standards like Codex, FSSAI has a list of just 377 approved food products. What this means is that more food items are off the list than on the list. Lohani said, “If you ask FSSAI what new category standards have they created in the last seven years of their existence, the answer would be two – caffeine based drinks and oil standard for crude olive oil and canola oil. Beside these, no new standards have been added as of now.”
What’s also interesting is the fact that today, there’s almost a paranoia about FSSAI and not many importers come forward to speak against the regulator. So, a senior official from an MNC having operations in India and an affected party of product approval delays requested anonymity while speaking about FSSAI. He said, “For any new product that comes in, one has to go through the product approval process. We do not have any problem with that, but the time taken to get that approval is very long and can sometime be as long as one, two or even three years.” He attributed the product approval delays to the lack of expertise at FSSAI. He also added that there are 11,000 pending applications with FSSAI as of today, but the government agency doesn’t have the capacity to deal with more than 10 or 11 applications a day. Kejriwal seconded this view and said, “FSSAI is working to give faster results, but is short of staff and qualified personnel from the food industry.”
The Small Fall
When higher compliance expenses made lives difficult and several MNCs that have had a long presence in India discovered that the situation was worsening, they formed a group to raise their concerns with FSSAI. Surprisingly, this worked. So, as is almost always the case, it’s the small and medium Indian businesses that were left to fend for themselves, with none to hear their grievances. Lohani said, “You (FSSAI) are supposed to promote domestic production and are not there to promote international brands in India. But what you are doing is helping international brands because they have the money power to adhere to your labelling norms and get approvals. Small Indian manufacturer don’t.” However, it’s worth noting that several MNCs like Lindt, Ferrero, Diageo and Pernod Ricard couldn’t adhere to these new norms and have been constantly in the news either for shutting shop in India, curtailing Indian operations or diverting their shipments to foreign markets.
Egg on face
There has been many several allegations of arbitrary, adhoc and ridiculous decision-making by FSSAI officials, one of the best examples of which is the one involving canola oil. Thinking that canola oil is a brand name and not a product, FSSAI wanted it to be re-labelled as ‘rapeseed oil – low erucic acid’. However, importers did not agree with this, which resulted in FSSAI not clearing their shipment. Consequently, one of the biggest importers of canola oil in India, Dalmia Continental challenged FSSAI in the court and got a ruling against the ban from High Court of Bombay. Even the Supreme Court, following FSSAI’s challenge to the High Court Bombay verdict, gave a ruling against FSSAI’s appeal and removed all restrictions imposed on canola oil imports. The entire canola oil episode is a great example of FSSAI’s style of functioning and the hardship it puts importers through. It also tells us how in the name of improving safety standards, FSSAI is getting itself involved in unnecessary and irrelevant issues, maybe just to show who the boss is!
While the canola oil episode came as a big boost to the importer community, the main question on their minds is whether it will be an eye opener for FSSAI. For, while Dalmia Continental had the resources to take delays and losses in its stride and drag the food regulator to the judiciary, not many do.
Authoritative
The way of functioning of FSSAI can put even the worst of dictators to shame. For, there is no internal provision within FSSAI to appeal against its policies or challenge the actions taken by its officials. Even the testing done by FSSAI affiliated laboratories cannot be challenged. The only way to get your voice heard is by approaching the judiciary. Speaking about this aspect, Chandhok said, “There is no appeal mechanism in FSSAI. Suppose a natural product fails the test due to just 1% more moisture content, it doesn’t mean it has become unsafe or is not consumable. But one cannot go and reason this with FSSAI because there is no appeal mechanism. In this case, they will simply reject it and once they reject something, they will not allow you to either import, or label it. If their laboratories make an error or do a wrong test and fail your product, there is no recourse. They just don’t accept that their laboratories can, at times, go wrong.”
No Nitpicking
After being dragged to the court on several occasions and heavy media criticism of FSSAI’s way of functioning, there are indications from Ministry of Health that it is working to streamline the food import clearance process and is trying to come up with a time-bound approval system. Talking about some such positive developments and giving his own suggestions, Kejriwal said, “Currently, logo, importer name/address and veg/non-veg labelling norms have been relaxed by FSSAI and these can today be affixed on arrival but prior to clearance. This should be further relaxed to allow the same at importers premises, thereby enabling additional savings. FSSAI should also be lenient in minor cases like using ‘Manufacturer Name’ instead of ‘Manufactured By’ title.” He further suggests that FSSAI should appoint qualified staff and give a waiver from sampling of repeat products as it would enable a smoother clearance. He also wants the food regulator to reduce the time involved in sampling and providing NOCs and wants it to share product analysis reports.
Food for Thought
Speaking about the big picture, Chandhok said, “Actually, we should make sure the food that is produced in India is hygienic and safe for consumption. People in small businesses need some training, some handholding and help in order to improve their hygiene. This is what impacts a majority of our population.” Talking about the need for some flexibility in labelling norms, he said, “What I have been telling them (FSSAI) for a long time is that when there are minor labeling errors, which do not impact the safety of a food item, they should permit rectifications at least one time, even if that comes with a penalty.” After all Harbhajan and Virender were just fined and not sent back from New Zealand, isn’t it?
Most importers The Dollar Business spoke to were unanimous in their demand that FSSAI should work towards making standards that are harmonised to globally accepted food standards like Codex. Getting closer to Codex would make the list of approved products and/or categories exhaustive, thereby requiring less manual approvals or interventions. Apart from this, there is a widely felt need to establish an internal and external appellate mechanism, so that the industry’s grievances can be heard without troubling the judiciary. After all, none in his/her sane mind can have an issue with the idea that only safe food items should be allowed to get into the country. But that doesn’t require iron gloves. Or does it?
“Transition could have been managed better” - Nikhil Chib, Owner, Busaba
About a year back prices of all imported food items were raised arbitrarily by our vendors. When I enquired one, he told that his shipment worth Rs.2-3 crore was stuck with customs because of some labelling issues. In fact, it was the case with most of our suppliers. Since then our margins have gone down by 5%, which is a sizeable loss for fine dining restaurants like us.
If the government unexpectedly comes up with new regulations without taking the industry into confidence it does not serve any purpose. If an importer has already placed an order for the next 3-6 months then changing the rules with immediate effect certainly hurts and is not fair. Transition could have been managed better if the importers were given time to adapt to new rules. If that would have been the case, there would have been no problem.
“Consumers are the ultimate sufferers” - Kabir Suri, Co-founder, Azure Hospitality Pvt. Ltd.
The problem has been going on for quite some time now and it has affected everyone in the food and beverage industry. Change in labelling norms by FSSAI has resulted in shortage of several imported food items in the Indian market. In fact, new norms are also creating a lot of problems for end users like us. Our cost of procurement has increased substantially. We import products directly from manufacturers. But, since manufacturers now have to do India specific labelling, as directed by FSSAI, they are passing on the cost to us. Hence, it is the consumer who is the ultimate sufferer. FSSAI could have managed the transition better. They could have allowed whatever had reached Indian ports and should have come up with a mandate that in the new financial year or calendar year new norms or guidelines have to be followed. This could have saved end users like us from a lot of trouble.
Process of Food Import Clearance
Documents required for Food Import Clearance
The list of documents required (submission through online FICS) for importing food items into India is as follows (If required, original to be produced as directed by the Authorised Officer at his/her office or at the time of inspection):
Note: The product being imported should have a residual shelf life of at least six months.
Documents required for product approval
Product approval is the process by which a product gets approved by FSSAI in which the ingredient(s) and / or additive(s) are not as per prescribed standards in FSS Act 2006 or for which there are no standards notified in the FSS Act 2006. The list of documents required for product approval is as follows:
Details of fees to be enclosed
“They don’t have the manpower or skill-power to do something good” - Amit Lohani, Convenor, Forum of Indian Food Importers (FIFI)
He feels “the licence raj is back and when you give licences it results in a long queue. And that’s what is happening.” In an exclusive interaction with The Dollar Business, Amit Lohani, MD, Max Foods, and Convenor of Forum of Indian Food Importers (FIFI), discusses at length the problems Indian food importers are currently facing and blames FSSAI for the situation. Excerpts:
TDB: What is the real issue that has impacted Indian food importers?
Amit Lohani (AL): The major issue has been the ambiguity in the law. The interpretation of the law at various ports has been very different. A product has been coming into India for the last 15 years and is being sold in India without any reasonable doubt, and then all of a sudden the FSSAI comes up and says that the product does not conform to the Indian standard. In fact, these are the standards which are a part of the PFA (Prevention of Food Adulteration) Act 1954. These are very old standards and have not been updated. Things have changed since then and a lot of innovations have come in. What was considered a good product in 1960 might not be considered a healthy product now. Moreover, in various segments product labelling is one of the issues under contention. FSSAI says that if they do not understand the product then it needs to go for a product approval. Incidentally, what they are doing is asking us to pay for making new standards. Nowhere in the world a food safety authority uses standard of 1954 and expects importers or manufacturers to pay for making new standards.
TDB: As Convenor – Forum of Indian Food Importers (FIFI), have you made representations to FSSAI? What was the outcome?
AL: We have made more than 100 representations for product approvals, for updating standards, for removing ambiguity from the law, on powers given to authorised officers. We have also pointed out that there is no appellate authority and there is no single-window system in place. I would say the licence raj is back and when you give licences it results in a long queue. They have been giving extensions for the last five terms and I think for the next 10 terms they will keep on giving extensions only. They do not have the manpower or skill-power to do something good.
TDB: Why can’t we follow global standards like Codex?
AL: It is clearly being said that we will not follow Codex. The reason being given is that if we have to follow Codex it has to come through Parliament. In the PFA Act there are 377 categories of products mentioned and these are the only products for which FSSAI has standards. For anything beyond that they don’t have any standard. We have been hearing about Codex for the last 5 years now, but nothing has happened in real terms that can be translated into an Act.
TDB: Have the new standards been brought in without considering the impact they might have on food imports?
AL: This is a myth that there are new standards. In 2006 what they did was they picked up 6 Acts and compiled it to one and called it FSS Act 2006, passed in 2008. In fact, in the last 7 years of their existence FSSAI has come up with new standards for just two categories. One was for caffeine based drink and the second, which they have just updated, was the oil standard for crude olive oil and canola oil. Besides that no new standard has been added till date.
TDB: It’s very difficult to assess the extent of loss which the Indian food importers or overseas exporters have suffered due to new regulations? What, according to you, would it be?
AL: As per quoted media reports, Rs.25,000 crore worth of products are lying or have been destroyed or re-exported or have had problems in coming into India. I think Rs.25,000 crore is a very modest number. Situation is even worse. Several major brands, which wanted to invest in India, have postponed their plans. And it is certainly a big loss.
TDB: What has been the issue with “100% sampling”?
AL: No notification from FSSAI says that there will be 100% sampling, but it was done because the officials wanted it. They have been conferred a lot of power, and they just want to exercise it. In fact, it was like an officer waking up suddenly one fine night and saying that he wants “100% sampling” to start from 13-09-2013. In my view, this was basically done to help private labs which were not getting enough samples and as such were putting pressure on FSSAI. Initially, we were told that it is a 3-month pilot project to collect data, but this is not the case. It has been going on since then.
TDB: Do you see things getting better for importers and manufacturers anytime soon?
AL: The problem is that our industry is divided. From small players to large manufacturers to MNCs, we have different issues and aspirations. We are not united. While big MNCs with big budgets can afford to say that they need standards, local production houses want relatively easier laws. Further, it all depends on authority’s intentions. The authorities are supposed to promote domestic production and not international brands. But what they are actually doing is promoting international brands that have the money power.
TDB: What, according to you, is the way forward?
AL: The authority should have regular meetings wherein industry’s issues and concerns are taken up and resolved. Further, you have to give equal voice to people at all levels. You will have to look at lowest common denominator and not just the big chunk.
“There is no appeal mechanism” - Anil Chandhok, Director, Chenab Impex
New FSSAI norms have forced several importers to to take a hit on their margins. Anil Chandhok, Director, Chenab Impex, is one such importer. The Dollar Business caught up with him to understand the issues faced by the food importers community and what could be a way out of this situation
TDB: What is your take on the new guidelines on food imports by FSSAI?
Anil Chandhok (AC): On imports front they have become more aggressive, rather I should say regressive. FSSAI was set up in a very positive environment and the idea was to modernise the Indian food industry and to make international food brands available to Indian consumers. But this has not happened because they are still using the rules which were made in 1950. The world has moved on so much that to comply with the old rule now is really tough. It all started with ensuring that labelling meets the parameters as set in the PFA Act of the 1950s. So, only those food items which have got the food standards in that book are permitted. In the last 10-15 years a lot of food imports have been taking place which were perfectly normal. However, in the FSSAI guideline it is now required that as far as permission for import goes they should have an Indian standard. If Indian standards are not available, they will not allow the import.
TDB: These days several importers are experiencing delay in shipment clearance at various Indian ports. What has been your experience?
AC: Every shipment is now delayed. Earlier a shipment used to take 7-8 days to clear the process, including the testing by the Public Health Officer (PHO) and the Customs. Now every consignment takes at least 3-4 weeks. It means that demurrage goes up because the longer you keep it waiting for clearance the higher the rate of the demurrage charged. So, the demurrage has now become a very significant part of the cost. When it comes to frozen food, they say one can take NOC (No Objection Certificate) to move the consignment out of the port. However, they don’t practice it. The reality is very different. Importers are not allowed to take NOCs saying that the testing report will come within a week. But that never really happens. It takes a minimum of 15 days for the test reports to come. Such a long delay in clearing a refrigerated cargo means the demurrage goes up substantially. In fact, in some cases it has even exceeded the cost of the shipment.
TDB: What has been the effect of 100% sampling? Why importers are finding it difficult to adhere to?
AC: In 2013 they started doing 100% sampling and from every batch a sample was drawn. When we protested they said that it was only for three months as they were trying to collect some data after which they would go back to the random sampling process. It’s been over one and a half year since then, but the process of 100% sampling is still on. Earlier if you had 10 different flavours of biscuits they would draw one or two samples and test them. So you had to bear the cost of just one or two tests. Now, they are drawing one from each flavour, which takes the sample size to 10. If one test costs Rs.3,600 and your consignment has 10 flavours you end up paying Rs.36,000, just for testing. If the import value of your consignment is (say) Rs.4 lakh then the cost of the consignment goes up by 8%, all because of those some unnecessary extra tests.
TDB: What has been the impact of these new measures on your margins?
AC: We import a lot of items ranging from gourmet, olive oil, mustard, coffee, beans and many more. Our business has been very badly affected as growth has completely stopped in the last 2 years. Cost has substantially gone up. There is a limit to which you can pass the cost to consumers and hence our profitability has significantly come down. If you are importing fine food then your volume will not be enough to justify that an overseas manufacturer prints a special label for you. Hence, the cost increases substantially and could escalate by as much as 10-20%.
TDB: Isn’t there any recourse option available to importers?
AC: There is no appeal mechanism in FSSAI. Suppose a natural product fails the test due to 1% more moisture content, it doesn’t mean that food has become unsafe or it is not consumable. But one cannot go and reason this with FSSAI because there is no appeal mechanism. They simply reject it and after this rejection they will not allow you to import or allow you to add label or any additional information. If their laboratories make an error or do a wrong test and fails your product, there is no recourse. They just don’t accept that their laboratories can, at times, be wrong.
TDB: What according to you is the feasible solution going forward?
AC: Actually we should make sure that food, which is produced in India, is hygienic and safe for consumption. People in small businesses need some training, some handholding and help in order to improve their hygiene. This is what impacts majority of our population. What I feel is that for minor labelling errors, which do not impact the safety of the food, a second chance should be given, of course with a penalty. This will surely improve the situation.
“Avoid unbridled exercise of powers” - Rohan Shah, Managing Partner, Economic Laws Practice (ELP)
FSSAI should endeavour to administer the regulations judiciously and in a manner that does not needlessly hinder business. While insistence on strict adherence with labelling and other regulations is welcome, any arbitrary or unbridled exercise of powers should be avoided. In a few recent cases, High Courts have struck down FSSAI’s actions / orders as being arbitrary.
As far as the issue of sampling for testing and analysis is concerned, there are certain solutions which both industry and government can work towards. One could be avoiding duplication of efforts when goods have already been tested extensively in the exporting country. In many instances, food items imported into India undergo extensive testing and analysis prior to export in the exporting country. Many exporting countries have stringent foods laws. For example, food manufactured or produced in European Union (EU) is subject to analysis or testing by the EU Food Authority, including articles meant for export out of EU.
Testing and analysis of every batch once again on their importation into India amounts to duplication of efforts. Accordingly, to avoid duplication, certificate issued by the Food Authority in specified exporting countries (having stringent food laws) can be treated as certificate meeting the purpose of the FSS Act and accordingly an exemption may be granted from sampling, testing and other applicable procedures in India in respect of imported goods.
Further, the test / analysis report / certificate issued by the prescribed authority post testing can be made valid for a particular period. This would do away with the requirement of sampling every import taking place within the period covered by the certificate. There exists several global precedents in this regard. For example, a laboratory report issued by the Food Authority in EU in respect of alcoholic beverages is valid for a period of one year from the date of issue. A similar provision can be incorporated under the Indian law which provide for period of validity of the test / report certificate issued.
“FSSAI officials are not interested in providing a solution to the problem” - Viswanathan T, Principal Partner & Country Head, Lakshmikumaran & Sridharan Attorneys
While most of the Indian food importers wish to comply with the FSS Act, the lack of awareness and frequent changes in the law are a few factors which are dissuading them from doing so. In a candid talk with The Dollar Business, Viswanathan T., Principal Partner & Country Head, Lakshmikumaran & Sridharan Attorneys, throws light on the ongoing food import issue and suggests a way out
TDB: What really went wrong with FSSAI’s new guidelines with respect to packaging and labelling of imported food products?
Viswanathan T. (VT): While the objective of the Act is laudable i.e., to provide safety to the consumers, its implementation is very poor. It is lacking in everything as there is no proper co-ordination among various agencies implementing it. There is no proper publicity given to create awareness. All the stakeholders have not been consulted. Moreover, frequent amendment to the procedure / regulations has only added more confusion.
TDB: What kind of impact is it having on both Indian importers as well as overseas exporters?
VT: The guidelines are very rigid and have been changed without any advance intimation to the stakeholders. It is dissuading companies (overseas) from exporting goods into India. In fact, companies like Lindt Chocolates have already decided to stop supplying their chocolates to India. Whiskey and some imported items used in restaurants and food courts seem to have greatly suffered due to the approval system and requirements of bilingual labelling.
With new guidelines and selective implementation, the scenario has now changed. When importers are operating on wafer-thin margin, the holding up of the cargo at the port due to non-compliance has severely affected the entire importing community importing food items. While most of them wish to comply with the law, the lack of awareness and frequent change in law has affected the way the business is being carried out.
TDB: What is your observation when it comes to the implementation of new guidelines and its impact?
VT: Many food business organisations (FBOs) have been violating the food safety laws because of their ignorance and due to lack of effective implementation in the past, and many of them got away with it. The process of implementation would start with a drive for registration/licensing of all FBOs with the Authority, product approval of the manufactured/imported items, establishment of laboratories etc. Different committees/scientific panels formed under the Authority have now started reviewing different aspects of the food industry such as labelling, claims/advertisements etc.
Pending product approval, the goods cannot be marketed. Once a product loses half of its shelf life, (12 months out of 24, for e.g.), it cannot be allowed to be imported into India. Such goods get diverted to other countries leading to loss of forex and business. There are examples of rare cheese and sea weeds, used by pan-Asian restaurants like Mamagato, rotting at various Indian ports.
TDB: What are the drawbacks of current approval system?
VT: The FSS Act lacks an approval system and the current procedure has not been brought out using the correct procedure. The labelling guidelines are looked upon as stringent and arguably impractical. A case in point could be asking for bilingual labelling of scotch whiskey in english and hindi. Another interesting problem has been in respect of “Recommended Daily Intakes (RDI)” which is said to depend on environmental and dietary factors. So RDI of a product approved by US FDA may not be acceptable in India. There are debates about a universal RDI but without conclusions.
Since the FSS Act does not lay down a mechanism for approval, any mechanism which is proposed is supposed to be tabled before the Parliament (Sections 92, 93). However, the Product Approval Procedure Guidelines dated 17.05.2013 did not undergo any such procedure and was merely an advisory.
In Vital Neutraceuticals (Writ Petition No. 2746 of 2013), this was contested as unconstitutional and the Bombay High Court referred the matter to a third judge. The procedure was finally held to be unconstitutional. On appeal before the Supreme Court, an interim order was passed and the judgment of the High Court was stayed and the guidelines were revived. An online approval system was introduced but the problems persisted.
TDB: Which food segments have been affected the most due to these new norms?
VT: Perishable food items, chocolates and confectioneries, baby food nutrition are some of the worst affected categories. Antibiotic residue, food additives, etc. are some other product segments that will be affected badly by these new norms.
TDB: Don’t you think FSSAI moved ahead without planning for storage infrastructure to manage delay in clearance of perishable items like food?
VT: Yes, of course. The time taken for sampling and clearance is really affecting the time otherwise taken for clearance from the customs. In-adequate storage, attitude of customs, high costs charged by CFS/Port is certainly adding to the misery of importers.
TDB: Do you think FSSAI has adequate manpower and other resources to timely process all clearance requests?
VT: No. Decision-making takes a lot of time. The FSSAI officials are not equipped to take decisions effectively and efficiently. Further, they are not interested in providing a solution to the problem. Non-use of IT infrastructure effectively is also one of the factors aggravating the problem.
TDB: Why can’t FSSAI follow Codex, the global best practice, when it comes to food and related products? Where lies the concern?
VT: Codex does not cover all the Indian requirements. It needs to be slightly modified to suit Indian requirements, which always has been the case when we borrow foreign standards.
TDB: What according to you is the best way forward for both the industry and the government?
VT: Speedy clearance and trade facilitation should be the motto without hampering the interests of the Indian citizens. If the authorities keep this in mind, a lot of issues will get resolved.
“It’s wrong to say that FSSAI has hampered India’s trade in food” - Dr. A. K. Srivastava, Director, NDRI & Member, FSSAI
Ever since FSSAI came up with the new guidelines for food imports, there have been criticisms that all FSSAI has done is hampered India’s trade in food products. In an exclusive interaction with The Dollar Business, Dr. A. K. Srivastava, Director, National Dairy Research Institute (NDRI) and Member, Food Safety and Standards Authority of India (FSSAI), dismisses all such allegations. Excerpts:
TDB: What is your and that of other food technologists/ scientists primary role in FSSAI?
Dr. A. K. Srivastava (AKS): The primary role of food technologists/ scientists in FSSAI is to assist FSSAI in laying down science-based standards for articles of food for regulating their manufacture, storage, distribution, sale and import besides ensuring availability of safe and wholesome food for human consumption. In its endeavour to serve the society, FSSAI has constituted various scientific panels, e-working groups and task forces which support FSSAI in taking various decisions. The members of the scientific panels, e-working groups and task forces include food technologists and scientists from reputed Institutes. However, final decision in FSSAI is taken by the Food Authority – an apex body who have members representing various Ministries or Departments of Central Government viz. Agriculture, Commerce, Consumer Affairs, Food Processing, Health, Legislative Affairs, Small Scale Industries; representatives from food industry; representative from consumer organisations; eminent food technologists or scientists; members representing the States and the Union Territories; representative of farmers’ organisations and retailers’ organisations. Director, NDRI is also the member of this apex body in Food Authority and plays a vital role in approval of regulatory standards developed by the scientific committee.
TDB: How comparable are FSSAI standards to that of those by similar regulators in the developed world?
AKS: Most of the FSSAI standards are in harmony with those of other countries. In fact, there is exercise going in FSSAI to align Indian standards with Codex requirements. However, there are some differences where FSSAI standards are different from other regulators. For example, European Community Legislation imposes maximum permissible limit for aflatoxin M1 concentration as 0.05 ppb for milk and 0.025 ppb for infant formulae. However, FSSAI has set the permissible limit for aflatoxin M1 concentration at 0.5 ppb in milk as per codex as benchmark.
TDB: How would you react to the criticism that all FSSAI has done is hamper India’s trade in food products?
AKS: It is wrong to say that FSSAI has hampered India’s trade in food products. In fact, FSSAI has facilitated the trade by making standards in many food categories, thus, regulating the trade for the benefit of manufacturers as well as consumers. For certain food products where standards are not there, FSSAI allows trade of such food products under “proprietary foods”.
TDB: How often do you find yourself (and other food scientists) at loggerheads with those from trade and commerce at FSSAI?
AKS: Not much. We rarely find ourselves at loggerheads with trade and commerce at FSSAI. Industry does show its concern to FSSAI and often approach us if any change is desired in any standard which is resolved amicably. Recently, there is debate on setting up the standards for “Dairy Whitener” wherein the standards for protein, total ash and casein to whey protein ratio are being discussed. Industry and scientists in task force have different views on this.
TDB: What is FSSAI doing to take Indian food importers into confidence before coming out with laws/rules? Are you reaching out to those who are exporting food products to India and educating them about the new standards?
AKS: FSSAI has displayed on its website the requirement for importers “Food Import Clearance System” and the information is updated frequently. The main dispute, which is I believe, is on labelling requirement of FSSAI vis-à-vis requirement in importing country. These requirements are prominently displayed on the website. Whenever, any decision is taken by FSSAI, final draft copy of the standards is displayed on FSSAI website for a certain period of time for inviting comments. These comments are considered before taking final decision.
TDB: How equipped is FSSAI in terms of laboratories and workforce to check food safety standards?
AKS: Apart from its own laboratories, FSSAI has notified many private National Accreditation Board for Testing and Calibration Laboratories (NABL) accredited food testing laboratories for analysis of food samples taken in FSS regulations. In a recent notification, FSSAI has approved 12 laboratories located in various institutes as Referral Laboratories. Recently, at NDRI also a laboratory “National Referral Center for Milk Quality and Safety” has been set-up and is supporting FSSAI in terms of developing analytical methods for testing of milk and milk products.
TDB: How easy/difficult is it for exporters of food products to India to adhere to norms set by FSSAI? What do you think is the main reason for set norms being flouted?
AKS: Most of the FSSAI standards are in alignment with Codex standards. The exporters of food products to India may find difficulty with respect to labelling requirement, for example best before date or expiry dates etc. The detailed labelling requirements are mentioned in FSSAI website. However, FSSAI officials are looking at the issues that lead to flouting of set norms. FSSAI is doing everything it can to resolve such issues.
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