A Critical Analysis on Food Safety and Food Adulteration in India
Author: Ayaan Yahya Siddique,
3rd year law student,
School of Law,
Introduction
Food safety is a requirement on which similarity is warranted irrespective of the socio- economic status of any consumer anywhere on earth at any given time. This is on the grounds that adulterated food truly influence human wellbeing and cause death toll including fatal sicknesses prompting an early end. This issue is therefore straightforwardly concerned with the right to life of an individual. The number of people in this day of age who are being affected by the adulteration of food in is alarming. In order to safeguard the processing of food, the government has introduced certain laws to prevent the adulteration of food from ill-practices of humans. The objective of this article is to check whether our country is taking the necessary steps in the prevention of food adulteration and to provide information on the current scenario of the law in this country. This article will also enlighten you with certain means and measures that should be taken to help in the methods of punishing such offenders. Even though, there are a number of laws to prevent food adulteration in our country, they still cannot be applied in all the states as they are not uniform in nature. Thus, there is a need to formulate such laws regarding adulteration of food which help in protecting the health of the people. Hence, this paper would serve as one of the first stops for information regarding the most important laws and issues in India and to understand how this law can be put to use to improve and to develop your understanding in the prevention of food adulteration.
The Legal Aspects of Food Adulteration in India
Food is one of the essential necessities for sustenance of life. Unadulterated, new and solid eating regimen is generally basic for the soundness of the individuals. It is no big surprise to state that network wellbeing is national riches. Food adulteration is the procedure wherein the nature of nourishment is brought down either by the expansion of substandard quality material or by extraction of important fixing. It not just incorporates the deliberate expansion or substitution of the substances yet natural and concoction tainting during the time of development, stockpiling, handling, transport and circulation of the food items, is likewise answerable for the bringing down or debasement of the nature of any food item.[1] Adulterants are those substances which are utilised for making the food item dangerous for human utilisation. Under the past food laws any food item with brought or debased quality utilised down to be characterised as adulterated food yet under the new laws (Food Safety and Standards Act, 2006), the word adulterated food has been named as substandard food, unsafe food or food containing the incidental issue. Food items are said to be adulterated if their quality is unfavourably influenced by including of any substance which is harmful to the wellbeing of an individual or by abstracting a nutritious substance from an individual.
Section 48 of the Food Safety and Standards Act of 2006 (hereinafter referred to as ‘FSSAI’) states various ways in which foods may be adulterated by a person, and subsequently prohibitions and penalties have been described from section 50 to section 67. The penalties have been prescribed based on the specific conduct of a person, resultant defects in the food and eventual effects on consumers. Section 48(1) provides that a person may render any article of food injurious to human health by means of one or more of the “operations”[2] (the word used in this section) namely: “(a) adding any article or substance to the food; (b) using any article or substance as an ingredient in the preparation of the food; (c) abstracting any constituents from the food; or (d) subjecting the food to any other process or treatment.” All these means of adulteration must be employed “with the knowledge that it may be sold or offered for sale or distributed for human consumption.[3] All these “operations” relate to some sort of positive actions in an implicit exclusion of omissions.
To supplement section 48(1), section 48(2) enlists relevant considerations with respect to the determination of “whether any food is unsafe or injurious to health,” such as the information provided to consumers, probable cumulative toxic effects of the food, particular health sensitivities, etc. Although section 48(1) refers to only “actions,” section 48 (2) may impliedly include “omissions” especially when it requires the court to consider:
The information given to the consumer, including data on the label, or other data by and large accessible to the consumer concerning the shirking of explicit antagonistic health impacts from a specific type of food or classification of food not exclusively to the conceivable, quick or present moment or long haul impacts of that food on the health of an individual consuming it, but also on subsequent generations.[4]
No judicial interpretation of section 48(2)(a)(ii) has been found. However, it could be logically inferred that the court may consider against the accused the misleading or deceptive information caused by “inadequate” disclosure made to the consumer. Therefore, section 48 fairly encompasses all sorts of potential actions as well as “informational omissions” in relation to food safety, which may in effect cause injuries to the health of immediate consumer or even to that of the consumer’s descendant in a longer term.[5] However, the conduct part of “omissions” still suffers from ambiguity in that it is not positively added to the actus reus component of the offences, and that the failure to remove harmful elements from a food item is arguably left out completely.
Penalties and Offences
Section 48 is silent about penalties. However, this silence has been addressed separately in section 58, which mentions punishments of contraventions for which no specific penalty is provided. Section 59 of the FSSAI prescribes the highest penalties for “unsafe foods.” An “unsafe food” item as defined in section 3(zz) of the FSSAI:
An article of food whose nature, substance or quality is so affected as to render it injurious to health: (i) by the article itself, or its package thereof, which is composed, whether wholly or in part, of poisonous or deleterious substances; or (ii) by the article consisting, wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or (iii) by virtue of its unhygienic processing or the presence in that article of any harmful substance; or (iv) by the substitution of any inferior or cheaper substance whether wholly or in part; or (v) by addition of a substance directly or as an ingredient which is not permitted; or (vi) by the abstraction, wholly or in part, of any of its constituents; or (vii) by the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or (viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof; or(ix)by the article having been infected or infested with worms, weevils or insects; or (x) by virtue of its being prepared, packed or kept under insanitary conditions; or (xi) by virtue of its being mis-branded or sub-standard or food containing extraneous matter; or (xii) by virtue of containing pesticides and other contaminants in excess of quantities specified by regulations.[6]
Several offences have been created (sections 50-67 both inclusive) based upon the above prohibitions on rendering food unsafe. The highest penalty contained in section 59 of the FSSAI relates to unsafe food. Unlike the SFA-Bangladesh, the penalties in the FSSAI vary depending on the consequence of the offence committed by the accused. The ethical basis of section 59 thus seems to be utilitarianism (also called “consequentialism” or consequence-based philosophy), which justifies certain conduct in terms of its consequence (greatest good for the greatest number).[7] It does, however, incorporate the deontological ethics as well. Therefore, its ethical basis is hybrid. Section 59 reads:
Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable- (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees. (ii) where such failure or contravention results in a non-grievous injury, with imprisonment for a term which may extend to one year and also with fine which may extend to three lakh rupees; (iii) where such failure or contravention results in a grievous injury, with imprisonment for a term which may extend to six years and also with fine which may extend to five lakh rupees; (iv) where such failure or contravention results in death, with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and also with fine which shall not be less than ten lakh rupees. [8]
It shows that conviction does not require any consequence to occur under section 59(i), which is an inclusion of the ethical principle of deontology. However, the prohibited conduct committed without any resultant injuries attracts the lowest penalty, which demonstrates a special emphasis on the relationship between the consequence and legal condemnation. This is akin to the utilitarian principle of ethics. It means the penalty has been attempted to be made proportionate to the consequence of the prohibited conduct.
Alongside the provisions of punishment for the first offence, recidivism has been prescribed to be punished even more severely. Section 64 provides punishment for subsequent offences. It reads:
(1)If any person, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to- (i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence; (ii) a further fine on daily basis which may extend up to one lakh rupees, where the offence is a continuing one; and (iii) his licence shall be cancelled.
(2) The Court may also cause the offender’s name and place of residence, the offence and the penalty imposed to be published at the offender’s expense in such newspapers or in such other manner as the court may direct and the expenses of such publication shall be deemed to be part of the cost attending the c
onviction and shall be recoverable in the same manner as a fine.[9]
onviction and shall be recoverable in the same manner as a fine.[9]
Conclusion
The preceding discussion presents a critical review of the most serious offences under the major statutory laws regulating food safety in India. This investigation endeavours to find out specific drawbacks of the law of each jurisdiction, and discovers that none of the statutes is free from flaws. Recommendations should be submitted with reasons to address the loopholes in the legislation in order to make the laws more useful for combating the menace of food adulteration in their respective jurisdictions. Even if we grow increasingly aware regarding the risks of food adulteration, we are helpless to stop it. Enforcement of these laws such as the FSSAI with the highest penalty must be ensured. We additionally need increasingly effective awareness campaigns with respect to consumer rights, as well as advancement of moral practices among the business network by business pioneers, and increase the development of public health labs by training more staff to appropriately test food items for adulteration on the spot. Hopefully the concerned authority will come forward to take care of these issues as soon as possible.
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[1] S.M. Solaiman, Civil Liabilities for Unsafe Foods in Bangladesh and Australia: A Comparative Perspective on Consumer Protection, Comprehensive Reviews in Food Science and Food Safety, Issue No. 4, Vol No.13, 2014.
[2] The Food Safety and Standards Act, 2006.
[3] M/s PepsiCo India Holdings (Pvt)Ltd. v. State of U.P. (2010) HCA, writ petition no. 8254.
[4] The Food Safety and Standards Act, 2006, §48(2)(a)(ii).
[5] The Food Safety and Standards Act, 2006, §48.
[6] The Food Safety and Standards Act, 2006, § 3(zz).
[7] Paul Conway and Bertram Gawronski, Deontological and Utilitarian Inclinations in Moral Decision Making: A Process Dissociation Approach, 104 J. PERSONALITY SOc. PSYCHOL., 216, 216-235. (2013)
[8] The Food Safety and Standards Act, 2006, § 59.
[9] The Food Safety and Standards Act, 2006, §64
