Policy Circle, May 09, 2022
By George Cheriyan
The role of a food regulator is to encourage the consumption of safe, sanitised, nutritious and wholesome food and to inform consumers about the steps it takes to minimise the risks, set standards and ensure safety. The passage of Food Safety and Standards Act (FSSA) in 2006 ushered in an era of food safety in India. The FSSA is a landmark law because it consolidated all laws related to food and aligned India’s food regulations with international standards.
The Act established a national apex regulatory body, the Food Safety and Standards Authority of India (FSSAI) which came into existence in 2011 to develop and enforce science-based standards for food and regulate the sector. However, even after 16 years of the enactment of the Act and 11 years after its enforcement, FSSAI has failed to deliver in line with its objectives, highlighting the need for drastic changes in the way it functions.
Gaps in FSSAI functioning
An audit of FSSAI in December 2017 by the Comptroller and Auditor General of India (CAG) revealed gaps in the working of the body and raised several concerns over clearances and testing of food, lack of equipment, and a shortage of staff across various testing labs affiliated with it. It has also questioned the lack of guidelines and procedures to regulate the use of certain food items.
The CAG found that though it has been more than a decade since the enactment of the Act, FSSAI is yet to frame regulations and guidelines governing different procedures. The regulator does not even have a complete database on food business operators (FBOs) in the country. The audit report also found that there is an acute shortage of licensing and enforcement officers in states.
Despite several gaps in its functioning, FSSAI has many platforms to engage stakeholders and seek their views. The Food Authority itself consists of a chairperson and 22 members representing the Union ministries/ departments; states/UTs; two representatives each from the food industry consumer organisations; food technologists/ scientists; farmers organisations and one person representing retailer organisations.
The author is a member of the authority as a special invitee representing the consumers. The central advisory committee (CAC) of FSSAI is to ensure close cooperation between the authority and enforcement agencies and organisations operating in the field. It consists of all state food safety commissioners and two members each to represent the interests of the food industry, agriculture, consumers, research bodies and food laboratories. The author was a member of the CAC from 2014 to May 2019, representing the interests of the consumers. The meetings were conducted on a periodic basis with advance notice with agenda circulated well in advance.
In the recent past many of the actions of FSSAI raised doubts about the capability of the regulator to deliver its mandate with the industry influencing many of its decisions. Several food experts have highlighted the need for the food regulator to be more vigilant to ensure food quality and safety as per its mandate, keeping in mind the context of the Covid-19 pandemic.
Advice about trans-fat free logo
In the last week of March, FSSAI asked the FBOs to get the products tested for trans fats and in case the products contained no more than 0.2 g per 100 g of food, then advised to use the trans-fat free logo on the product label. This advice was absurd because already mandatory regulation is in place for all FBOs.
As per the Food Safety and Standards (Food Products Standards and Food Additives) Tenth Amendment Regulations, 2020, trans-fat is banned in all foods, oils and fats with effect from January 1, 2022. Hence, the advice is irrelevant on any food product. In fact, FSSAI and the state food safety commissioners should have ensured full compliance. By asking FBOs to display trans-fat free logo, FSSAI is accepting its failure to ensure compliance and to penalise those who are violating the law. This shows how weak the regulator is.
Front of the pack labelling in India
Non-communicable diseases (NCDs) are responsible for 62% of all deaths in India. Preventable premature deaths account for 48% of the mortality. One of the reasons for increasing NCDs is the consumption of unhealthy food that is high in sugar, salt or saturated fat. All over the world, the cost effective way of warning the consumers about the unhealthy ingredients is the use of simple and descriptive front of the pack labelling (FoPL).
Across the world, a significant number of countries have implemented FoPL in different formats. India stands to lose $4.58 trillion before 2030 due to NCDs and mental health conditions. Cardiovascular diseases accounting for $2.17 trillion and mental health conditions ($1.03 trillion) will lead to huge economic losses. However, the food regulator has totally ignored the aspect of NCDs, and their links with food high in sugar, salt and fat. It has totally ignored the role FoPL could play while choosing the FoPL format.
The FoPL debate in India
FoPL was first recommended in 2014 by an expert committee constituted by FSSAI. After years of consultations, FSSAI published a draft Food Safety and Standards (Labelling and Display) Regulations, 2018 in May 2018. In 2019, FSSAI issued draft Food Safety Standards (Labelling and Display), Regulations, 2019. In 2019 December, FSSAI delinked FoPL from general labelling regulations.
During the pandemic outbreak, a stakeholder group was formed and regular meetings were held from January 2021 to fast track the process. From the inception, the author was part of this group and its consultations. The meetings were chaired by the then Executive Director (RCD) of FSSAI. After 5 consecutive monthly meetings and summing up the discussions, the Executive Director (RCD) relinquished his position on May 31, 2021 and returned to his parent department. It should be noted here that the CEO, FSSAI never attended any of these meetings.
On June 25, 2021, prior to the 6th meeting of the stakeholders, the CEO convened a meeting of consumer/ civil society organisations and parachuted the idea of health star rating (HSR), which was never mentioned/discussed in any of the stakeholders meetings. Though he sought the support of consumer organisations, they opposed the idea of HSR because of the experience of other countries with this label.
On June 30, a stakeholder meeting was convened and was chaired by the Chairperson. However, the CEO had taken over complete control of the meeting. In the meeting, he introduced the idea of HSR which was again opposed by COs/CSOs. While the meeting was about to conclude, the CEO presented the following as recorded in the minutes of the stakeholders meeting on FoPL held on June 30, 2021.
“FSSAI may commission a survey-based study through an institution of excellence like IIMs to analyze major FoPL models that are available across the globe with the objective to identify ease of understanding and behavioral change of Indian consumers on a national level.”
There was no space for discussion on this suggestion. It was only a suggestion by the CEO, no decision was taken to engage IIM-A for the survey. The author expressed concern about the time survey-based study will consume which may further delay the process, it was endorsed by the chairperson in her concluding remarks.
Power imbalance in favour of industry
Each of the seven stakeholders meetings, both physical and virtual, were attended by an average of 28-30 representatives other than FSSAI officials. Of this, the representatives of consumer organisations were only 4-5. Remaining 25 representatives were from the major industry associations and national/multinational food industries.
Though it was pointed out on several occasions, FSSAI was allowing the industry to participate in large numbers with a 6:1 ratio. In all the meetings, industries were dominating with a justification that they have only one response/one PPT, though it was allowed to be presented by 10-12 representatives including regulatory experts, legal experts, and health experts.
During first week of February 2022 (after 6 rounds), FSSAI requested for nomination of additional representatives from consumer organisations. Though nominated, those representatives did not receive invitations for the February 15 meeting. Those who tried to join were prevented from attending the crucial meeting. The regulator seemed to be in fear of the industry associations/ MNCs. Even the neutrality of the scientific panel was under question because it has been reported that industries have planted their people in these panels.
Unfortunate decision by FSSAI
On February 8, the author received a mail from Asst Director (RCD), FSSAI, intimating that FSSAI is holding a virtual meeting on February 15, 2022 at 03:30 pm for discussing the FoPL. It was not clear whether it was a meeting of COs or stakeholders. On February 10, I wrote an email seeking clarification and I was informed only on February 14 afternoon that it was a stakeholder meeting. Though asked repeatedly, no agenda was shared by FSSAI. A departure from earlier meetings, this was a meeting convened in the most undemocratic and non-transparent manner without any agenda or background materials.
On February 15, the stakeholder meeting was held under the control of the CEO. Two representatives from IIM-A and Dexter Consultancy presented the findings of the survey. Though asked, neither the PPT, survey report nor the questionnaire used in this survey was shared with the participants of the virtual meeting. The explanation of the CEO that he got the PPT only at 10.30 pm on February 14 and hence he could not circulate it was unbelievable. FSSAI concluded that HSR has come out as the recommended FOPL format. I along with other representatives of COs strongly opposed this decision and insisted to record descending note, which is recorded in the minutes as follows:
“Mr George Cheriyan from CUTS International and Mr Amit Khurana, CSE opposed the recommendation for use of HSR Model in India due to the reasons that health star ratings are taken with a positive connotation and do not meet the intention of FOPL regarding warning for negative nutrients, which may be overwhelmed by positive nutrients in the algorithm design for HSR.:
FSSAI reached at the decision that an initial period of four years, as recommended by the scientific panel, may be proposed for voluntary implementation of FOPL from mid-2023 to mid-2027. There was no discussion about a voluntary period for implementation in any of the stakeholders meetings. COs opined that the FoPL should be made mandatory right from the inception considering the rising number of NCDs in the country. From the outcome of the meeting, it was clear that FSSAI totally yielded to the pressure of the industry. This being the fact, FSSAI and the CEO should stop spreading misinformation to media.
FSSAI is responsible for the formulation and enforcement of food safety standards in India. It is expected to act in a responsible manner for the sake of consumers. Instead of yielding to the pressure from the industry, the food regulator should act according to its mandate in an independent manner. It must take all necessary steps to ensure that food products are healthy and safe and use the global best practices to avoid repeating mistakes. More importantly, openness and transparency should be upheld in the public body that is accountable to the people whose trust and confidence are key to its effective functioning.
(The writer is Director, CUTS International. He is a member of FSSAI as a special invitee from consumer segment and a member of stakeholder group on FoPL. Views are personal)
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