Through a letter dated 20 June 2018, the FSSAI has proposed amendments to the Food Safety and Standards Act, 2006. The FSS Act, 2006 came into existence to streamline the food regulations. FSSAI was set up under the Act of 2008 and now have a vast experience in the implementation of the Act. Based on this experience and the inputs received from various stakeholders FSSAI is now in the process of drafting some amendments to the FSS Act, 2006.
The FSS Act, 2006 is an important piece of food legislation and it is the joint responsibility of the Centre and State. FSSAI has, therefore, invited the State and UT administrations to thoroughly examine the proposed amendments and any additional points and suggestions for amendments are to reach the FSSAI by 2 July 2018 so that they can be forwarded to the Ministry of Health & Family Welfare for further considerations.
Below is a gist of the section-wise proposed amendments to the Food Safety and Standards Act, 2006.
- In the Preamble to the Act along with “to regulate their manufacture, storage, distribution, sale, and import …..” the word export is to be added to the definition so as to cover export in the FSS Act.
- The new definition is being proposed for Authorised Officer which is that an AO is an officer appointed by the CEO, FSSAI by an order for the purpose of different ports of entry for import of food and performing such other functions as the FSSAI may specify by the Regulations. Presently there is no definition for AO in the Act but just mentioned in Section 47 (5) of the FSS Act.
- In Section 3 (d) the definition for the word “claim” is proposed to be amended to the following to harmonise with definition in Codex
“a claim is any representation in printed, oral, audio, visual form which states , suggests, or implies that the food has particular characteristics relating its origin nutritional properties, nature, production, processing, composition or any other quality”
- Section 3 (e) Commissioner of Food Safety as appointed under Sector 30. But now along with section 30 and in addition section 10 (5) also, so as to harmonize the provision and intent of the legislature in Section 10 (5) of the principal Act.
- New section is added 3(1) (ee) which states that Commissioner of Food Safety for the Union – while exercising the powers of the Commissioner of Food Safety under Section 10 (5) the Chief Executive Officer, Food Safety and Standards Authority of India shall work as Commissioner of Food Safety for the Union.
- Section 3 (1) (f) in the definition of the word “consumer “ the words personal needs will be replaced with words own needs or for gift or donation or persons purchasing and receiving food for business (these words have been included for the protection of the consumers and others who purchase and receive food)
- Section 3 (1) (i) to the definition of “extraneous matter” the words given in italics will are proposed to be added to the definition
“extraneous matter” means nay matter contained in the article of food which may be carried from raw materials, packaging materials for process systems used for its manufacture or which is added to it including insect fragments, rodent hairs, etc. but such matter does not render such article of food unsafe after being processed.
- Section 3(1) (j) from the definition of “food” the words
“any animal feed” will be deleted
After the words including water used into the for during its manufacture, preparation or treatment “packaging material including printing ink for food packaging that comes into contact with food”
(Since printing ink on food packaging and packaging material come into contact with food so FSSAI is of the view that these items should also be included in the definition of food)
- Section 3 (1) (n) In the definition of food business the word “export” will be included as an undertaking along with manufacture, processing, packaging, storage, transportation, distribution of food, export, and import ….”
- Section 3 (1) (p) from the definition of “food laboratory” the words established by the Central or State Government or any other agency are to be omitted as the word NABL accredited accepts and promotes the role of private players.
- Section 3 (1) (q) the definition of “food safety” is changed to means assurance that the food is not unsafe and acceptable for human consumption according to its intended use (the words not unsafe have been added so that misbranded or substandard foods as being unsafe are also covered)
- Section 3 (1) (r) under “food safety audit” the word “manufacturing unit” will be replaced by food businesses
- Section 3 (1) (vv) gives a new definition to the word “Export”. Export means from India any article of food by land, sea or air.”
- Section 3 (1) (z) Ingredient means any substance, including a food additive used in the manufacture or preparation of food and present in the final product either in the same or possibly in a modified form. (the words ‘either in the same’ have been added.)
- Section 3 (1) (ZD) Manufacturer definition is proposed to be changed to “manufacturer means a person engaged in the business of manufacturing an article of food or its ingredients including food additives or processing aids or packaging material including printing ink used for packaging which come in contact with food for sale and includes any person who obtains such article from another person and packs and labels it for sale or only labels it for such purposes. (the words in italics have been added to make it all-inclusive and prevent any misinterpretation)
- Section 3 (1) (zh) proviso for “package’ has been added to the definition which is given in italics “package” means a pre=packed box, bottle, casket, tin, barrel, case, pouch, receptacle, sack, bag, wrapper or such other things in which an article of food is packed provided that Central Government may specify special packaging and requirements for an article of food by regulations.
- The definition for “reference Laboratory” is proposed to be added in Section 3 (1) (zll)
Reference laboratory means laboratory notified by the food safety and Standards Authority of India under Section 43 (1) or Section 43 (2) which are accredited as per appropriate ISO/IEC standards for method development, method validation, proficiency testing and training by National/International accreditation body signatory to the International Laboratory Accreditation Cooperation (ILAC) or the Asia Pacific Laboratory Accreditation Cooperation (APLAC) or an equivalent accreditation body.
- The definition for “traditional Food” is being proposed under Section 3 (1) (zxa) “traditional food is food prepared using recipe and methods passed on from generation to generation using local ingredients, representing gastronomic heritage and authenticity.
- Section 4 (2) to the definition of Food Authority after the words “sue or be sued” the words through the Chief Executive Officer shall be inserted
- In section (5) (1) there is an amendment to the members of the Food Authority. The Food Authority shall consist of the Chairperson and the twenty-three members and out of the members referred to in clauses (b), (c), (d), (f) and (g) one third shall be women namely…”
The word Agriculture and symbol (i) shall be replaced by the words (l) Agriculture and Farmer’s Welfare.
The word and symbol (vii) Small Scale industries will be substituted with (vii) Department of Animal Husbandry, Dairying & Fisheries.
After (vii) (a) new sub-clause will be added (viii) Department of AYUSH Ministry of Health & Family Welfare
- Section 5 (1) (h) to be added which states that ‘the Chief executive Officer of the Food Safety and Standards Authority of India shall be a Member Secretary of the Food Authority.
- Section 6 (1) speaks about how members can also be appointed under clause (e) of sub-section (1) of section 5 will constitute a Selection Committee
- New Section is being proposed as Section 7A which defines the powers of the Chairperson
- The new section is being proposed as Section 10 (1) (h) which relates to financial matters of the Food Authority.
- Section 10 (5) the Chief Executive Officer shall also exercise the powers of Commissioner of Food Safety for the Union.
- Under Section 16 (1) duties and function of Food Authority, it shall also in addito9n regulate and monitor “export” besides others mentioned
- Section 16 (2) ( f ) the words “and exchange of information among enforcement authorities” is omitted as that cannot be regulated
- Section 16 (2) (g) conduct survey of the enforcement and administration of the Act in the country is Omitted as merely survey is not useful
- Section 16 (3) (h) the following words have been added to the definition “by itself or through any other agency “ (about training programmes)
- Section 16 (5) the Food Authority will give “directions” will be replaced with the word “Guidance”
- Section 18 (2) (d) the time period for finalization of regulation will be “for a period of one year and extendable for a period of six months for reasons to be recorded.
- Section 19 No article of food shall contain any ingredient, food additive or processing aid unless it is in accordance with the provisions of this Act and regulations made thereunder. (ingredient has been added)
- Section 21 (2) the word “directly” has been omitted and will read as “no insecticide will be used on any article of food…….
- Section 22 (4) the definition of proprietary food has been given as “food which has been standardized and which may contain additives as permitted for the categories or sub-categories in the regulations but does not include any ‘novel food’ food for special dietary purposes, functional food, nutraceuticals and health supplements.
- New Section 22 (5) defines novel foods to mean a food for which standards have not been laid and is produced by such method that has not been used previously and such food does not have a significant history of human consumption in the country
- New Section 24 (2) (d) for preventing misuse of FSSAI name and logo is proposed
(d) which creates an impression that the food article is approved by FSSAI or any Authority appointed under the Act
- Section 25 (1) (iii) the word “other” has been removed from the definition “any article of food in contravention of any other provisions of this Act….” As the word, ‘other’ is creating a misleading impression that the compliance of the provisions other than section 25 is required.
- Section 25 (2) to enable formulations of regulations to regulate imports the FSSAI proposes to add the word regulation along with standards in the definition.
- Section 25 (3) New Section added
(3) All imported food would be subject to inspection, sampling, and testing based on the risk associated with food at points of entry.
Provided that the imported food shall be further subject to surveillance, sampling, and testing of food items available in the marketplace.
- Section 26 (2) the word “ingredient” will be added to the definition “no food business operator shall by himself or by any person
- Section 27 Liability of manufacturers, importers packers, wholesalers, wholesalers, distributors and sellers (the words importers has been added)
- Section 27 (1) words importer has been added
- Section 27 (2) word importer has been added
- Section 28 (1) In place of food ‘withdraw’ by FBO the word “recall’ will be used
In all places where withdraw or withdrawal is written
- Section 29 food safety authorities will replace Food Safety Authorities
- New section 29 A (1) Each State and Union Territory shall have a State Food Authority for coordination and supervision for enforcement of this Act with a view to ensuring availability of safe and wholesome food in their respective jurisdiction.
The rest of the section is all about its formation, meetings, quorum etc.
This section has been formulated because many States/UTs do not provide adequate staff, infrastructure and facilities for enforcement of the Act and so there is felt a need to propose a special provision for the same.
- New section 29 B the Commissioner of the Food Safety for the Union (this section has been proposed to define the functions of the Commissioner of Food Safety who is also the CEO.)
- Section 30 (2) (a) the word “prohibit” has been replaced by the word “ban”
The word “import’ will also be added
The word not exceeding one year shall be substituted by the words “not exceeding three years.”
(In the interest of public health food can be banned for three years)
- Section 30 (2) (b) ‘survey of industrial units engaged in the manufacture or processing of food” will be replaced by the words special drives covering all types of food business
- Section 31 (1)
No person shall commence or carry on any food business except under the license
The word ‘license’ will be replaced by the words “Central or State License of appropriate category as specified in regulations.”
- In the proviso section 31(4) it is necessary to give effect to the concept of deemed approval so to clarify this; the words “ the license would be deemed to have been issued and the applicant may start his food business after the expiry of the said period under intimation in writing to the Designated Officer.”
- Section 31 (6) in case a single license is to be issued for one or more articles of food the words “in the same area” are proposed to be omitted.
- Section 31 (7) subsection (7) in this is omitted
- Section 33 (5) The time limit prescribed for prohibition order has been reduced from six months to three months
- Section 34 Emergency prohibition notices and orders will be replaced by “ban notices and orders under special circumstances”.
- In Section 34 all the sub-sections (1) to (6) will be replaced by the following “if the designated officers are satisfied that the health risk condition exists arising out of the emergent circumstances or due to habitual default by the food business, he may, after following the procedure as laid down, recommend to the Commissioner of Food Safety, for imposing the prohibition or closure of the food business.”
- Section 35 on reporting cases of food poisoning be medical practitioners in the area of their practice “may, by an order, prescribe mechanisms to report all occurrences of food poisoning coming to their notice to such officer as may be specified.”
- New section proposed 37 A Since there is a shortage of manpower this section has been proposed so Commissioners of food safety may authorize certain volunteers to perform duties and responsibilities as specified in regulations
- Section 37 (2) State Government Officers may authorize may select officers of the state government to perform duties or functions of food safety officers, designated officers, etc. within a specified jurisdiction and for a specific category of food products provided they undergo requisite training for the implementation of this Act.
- Section 38 (1) Take a sample (i) of any food or any substance, which appears to him to be intended for sale, or to have been sold for human consumption or the words “to have been sold” are deleted from this definition
- Section 38 (1) (c) sample “keep in the safe custody of the food business operator or carry away (words carry away have been added for FSO can carry the goods with him to keep in safe custody in his office.)
The sample has been taken for determining whether the article of food or processing aid or substance is in accordance with the Act and Regulations made thereof within three days.
- Section 38 (1) (d) new section proposed to be added to retrieve food article required as evidence for which purpose any vehicle, equipment, packaging, labelling or advertising material linked to the food article required for evidence may be seized if required for proceedings under the Act or rules and regulations and may carry away or keep in the safe custody of the food business operator.
- Section 38 (1) (e) Notwithstanding anything contained in sub-section (2) of section 31 the FSO may search any place, seize any article of food or processing aid or substance or adulterant, if there is reasonable doubt about them being used in the commission of any offence relating to article of food or processing aid or substance and shall thereafter inform the Designated Officer of the action taken in writing, provided no search is deemed to be irregular.
- Section 38 (2) the words “processing aid or substance” has been added to all sub-sections along with ‘where the article of food’
- Section 38 (3) again here to “processing aid or substance” has been added to an article of food.
- Section 38 (4) wherever the words ‘article of food; occurs the words or “processing aid or substance” will be added
- Section 38 (4A) to be added
An article of food or adulterant seized unless destroyed shall be presented before the designated officer as soon as possible in any case not later than seven days after the receipt of the report of the food analysts.
Provided that if an application is made DO in this behalf by the person from whom the article of food has been seized, the DO shall order in writing direct the FSO to produce such article before him within such time as may be specified in the order.
- Section 38 (5) This is about powers of entry where the food safety officer may follow the provisions of the Code of Criminal Procedure 1973 (2 of 1974) when exercising powers related to search, seizure, summon, investigation and prosecution under this section.
- Section 38 (5) (A) FSO has the power to break open any package or the door of any premise which may contain a food article or where article of food is kept for sale but this power may be exercised only if the owner or the person in charge is present and if he refuses to open the package or door but all will be under-recording.
- Section 38 (6) where any article of food has mentioned the words “or processing aid or substance” will also be inserted
- Section 40 (1) if an article of food is required for analysis then the FBO must take a receipt for of the purchase from Food safety officer for fees and inform the FBO about it being sent for analysis
- Section 41 principal Act is Omitted
- Section 41 (3) new section is being proposed
Where the Food Safety Officer is satisfied that article seized has no relation to the commission of any offense relating to food, such article will be released immediately.
- Section 42 (2) food analyst on receiving the report from FSO will send the analysis report within 14 working days
- Section 42 (3) designated officer will decide after scrutiny of the report of the food analyst whether the contravention is punishable with imprisonment in which case he will send the recommendation within “fourteen days from the date on which the period for filing appeal expires or the receipt of the from the referral lab, as the case might be.”
Or after compliance of the requirements of section 46 (4)
In case there is no contravention, DO shall direct the FSO to release the article of food within three days.
- Section 43 (1)The concept of accreditation is to be benchmarked by NABL or equivalent body with sufficient expertise and credibility. (for “any other” the word “equivalent” will be inserted
- Section 43 (2) Food Authority may recognize only referral food laboratories to carry out functions of the Act and regulations which are accredited by the National Accreditation Board for Testing and Calibration Laboratories or any equivalent accreditation agency.
- Section 43 (2A) new Section to be added “the time taken for a referral laboratory for sending the report on a sample should not exceed fourteen days.
- Section 43 (3) the Food Authority many frame regulations specifying the functions of food laboratories and referral food labs. The procedure for submission of a sample to the said laboratories including the fees and such matter as may be necessary or expedient for the said lab to carry out functions effectively.
- Section 43 (4 ) new Section to be added The food Authority may recognize by notification one or more testing laboratories as a National Reference Laboratory.
- Section 44 The Food Authority may recognize “an individual” organization or agency for the purposes of food safety audit and checking compliance with food safety management systems required under this Act, rules, and regulations made thereunder.
- Section 46 (2) “samples of an article of food” will be replaced by “sample”
- Section 46 (3) the word fourteen working days will be inserted
- Section 46 (4) the appeal against the report of a food analyst shall be sent within fifteen days to a referral laboratory for an opinion.
- Section 47 (1) (c) (iii) sending the remaining part for analysis to an accredited laboratory is requested by FBO under intimation to Designated Officer will also be “within fifteen days.”
- Section 47 (4) the principal Act is omitted
- Section 47 (5) In case of imported articles of food, the authorized officer of the Food Authority shall take a sample…. (“of the food authority” is omitted here.)
- Section 49 A proviso is proposed to be included that in case of packaged foods procured, distributed and sold by a distributor or retailer, and is not tampered with, the primary pecuniary and criminal liability will lie with the manufacturer.
- Section 59 Punishment for unsafe food wherever, in the section the word ‘result’ appears it will be replaced with “may result”
- Section 59 A – New Section being proposed “any person who whether by himself or by any other person on his behalf, adds an adulterant to food so as to render it injurious for human consumption with an inherent potential to cause his death or is likely to cause grievous hurt, irrespective of the fact whether it causes actual injury or not, shall be punishable for a term which shall not be less than seven years but which may extend to imprisonment for life and also fine which shall not be less than ten lakh rupees.”
- Section 62 If a person obstructs or threatens a Food Safety Officer in exercising the functions under the Act then the quantum of punishment has is proposed to be changed where imprisonment will not be “less than six months now and may extend to two years and the fine can extend to five lakhs.”
- Section 65 (A) to be inserted which is about “recovery of fees and other expenses incidental to prosecution – When any person is convicted of an offence under the Act, the court may order that all fees and other expenses incidental to the analysis of any food or food contact article in respect of which the conviction is obtained and any other reasonable expenses incurred by the prosecution, shall be paid by the person convicted.”
- Section 66 (1)………. This rule for food safety contravention is being proposed to be amended to remove the impression that this applies to only those companies that have more than one branch/establishment so it will be “any company or proprietor may nominate a person or persons in managerial or supervisory capacity, who shall be responsible and liable for any violations of the Acts, Rules, and Regulations made thereunder.”
- Section 70 (1) Central and State Governments are empowered to establish Food Safety Appellate Tribunals to hear appeals from the decisions of the Adjudicating Officer. The proviso is being added which says “provided that where the number of cases is not very large, the State Consumer Tribunals would also be empowered by the State/ UT governments to hear cases under the Food Safety and Standards Act.”
- Section 76 (1) A person may be aggrieved by the decision or order of the Special Court to this has been added “or the Judicial Magistrate of First Class or Metropolitan Magistrate.”
Also, no fees shall be required if the person aggrieved is an office under the Act.
- Section 76 (2) (The words in italics have been added.) An appeal referred under this section if the order appealed against is of a Special Court shall be disposed of by the High Court by a bench of not less than two judges.
- Section 82 (1) (the words in italics are added) Central Government save as provided in Section 82 A may after due appropriation ……..”
- Section 82 A It is proposed to establish a fund for undertaking special programmes on food safety and nutrition for food businesses and consumers. The fund would be called the ‘Food Safety and Nutrition Fund’ and would compromise on funds collected through fee, penalty etc.
- Section 91 (2) (a) is being omitted
- Section 92 (1) proviso is proposed which says “provided that the prior approval of the Central Government would not be needed in respect of regulations to be issued under emergency under section 18 (2) (d) and technical standards under Section 92 (2) (e, h, I, j and k)
- Section 92 92 (aa) new section proposed to be added
Salary terms and conditions of service of Chairperson and Members other than Ex officio members under the sub-section 92) of section 91 and the manner of subscription to an oath of office and secrecy under sub-section (3) of section 7.
- Section 96. The penalty has been explained: Penalty includes amount compounded
- The First Schedule {Section 5 (1) (e)} this includes Telangana or any other State to be created in the future
- Second Schedule (see Section 97) restricting to order repeated under the Essential Commodities Act 1955, to food safety
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