Comparison of International Food Legislation
and Practices

Food Processing Industry is widely recognised as a 'sunrise industry' in India having huge potential for uplifting agricultural economy, creation of large scale processed food manufacturing and food chain facilities, and the resultant generation of employment and export earnings. India has enormous growth potential from its current status of being the world's second largest food producer to be the world's number one producer. However. there are several bottlenecks that need to be overcome for achieving such position. Part of the problems, arises from India's multiple food laws and their complicated administration structure making adherence difficult.

Comparative Study

In 1995, the Union Ministry of Health & Family Welfare, took a major initiative to streamline and harmonise food legislations by setting up a 'Task Force' under the chairmanship of former Chief Justice of India, late Mr. E.S. Venkataramaiah. The Task Force was asked to review and recommend the amendments/measures for updating and harmonising the main food legislation of India, namely, "Prevention of Food Adulteration Act, 1954" (PFA) keeping in view the internationals accepted food safety norms and practices. A total of 32 amendments were recommended by it on various matters arising out of the administration of PFA but only a few of them seem to have found acceptance of the Central Committee for Food Standards (CCFS).

While the process for carrying out formal legislative amendments in PFA is yet to be completed by the CII felt the need for organising a survey of the food legislations of a few Asian countries and present its findings for consideration before the food industry and the Government before the proposed amendments of PFA are finally carried out. With this background the author was assigned the task of conducting a comprehensive Survey of the food legislations and the best administrative practices of neighbouring Asian countries namely, Thailand, Malaysia and Indonesia. These countries were chosen keeping in view their substantial similarities in people's food habits, culture, climatic conditions and developing state of economies. Turkey was added to this Survey keeping in view its mix of Euro-Asian food habits. Responses were also solicited through a "Questionnaire on Food Safety Laws" covering various aspects of prevailing food legislations and best enforcement practices in Pakistan and South Africa.

Survey Approach

During the course of visit to Thailand, Malaysia, Indonesia and Turkey, food legislations and regulations of these countries were studied and extensive discussions held with large number of people, i.e. Senior FDA Officials and Food Experts in the Ministries of Health/ Agriculture, practising Advocate & Solicitor, Industry Chamber and several professionals connected with development, manufacturing, quality assurance and marketing of food products. The author met the Senior Government Officials of these countries for detailed discussions.

SURVEY HIGHLIGHTS AND FINDINGS

In order to correctly appreciate the major highlights and findings of this Survey, it is important to juxtapose them with the food laws related issues and enforcement problems which are a cause of major concern for the growth of food industry in India.

1. UNIFIED FOOD LAWS:

Unlike India, almost all the countries covered by the Survey, has 'unified' laws. Ministry of Health and its concerned Departments in Malaysia, Thailand and Indonesia are entrusted with the responsibility of enforcement of food safety and quality standards. Food legislations of all these countries are also unified which are mainly as follows:

• MALAYSIAFood Act 1983, and Food Regulations 1985
• THAILANDFood Act, 1979
• INDONESIAThe Food Regulations published by the Ministry of Health, Republic of Indonesia, Jakarta.
• TURKEY4 legislations covering Food Laws, Obligatory Turkish Standards, Additives Legislations and Turkish Standards for Advertising & Packaging.

In Turkey, the enforcement responsibility has, however, recently been shifted from the Ministry of Health to the Ministry of Agriculture & Rural Affairs and their aforesaid food legislations/regulations are presently in the process of being consolidated and unified. In Pakistan the food laws are unified into one central legislation called "The Pure Food Ordinance, 1960" with its enforcement left to the provincial governments within the policy and statutory frameworks of the Central legislation.

In contrast, as per the McKinsey Report, there are more than 20 laws relating to food with responsibilities for their implementation divided amongst large number of ministries and departments, including the Ministries of Health, Food & Agriculture, Food Processing, Civil Supplies & Consumer Affairs, and Industry, etc. Health and Agriculture being the State subjects, the actual enforcement of food laws rest with the State Governments and Union Territories. We have, therefore, plethora of food legislations and enforcement agencies. For example, manufacturers of packaged food products, like oils and vanaspati, jams and squashes, are obligated to comply with quality standards and label declarations prescribed under multiple legislations, such as PFA, The Standards of.' Weights & Measures (Packaged Commodities) Rules, Vanaspati and Oil Products Control Orders/Fruit Products Order, etc. Such multiplicity often results into a food factory or establishment being visited by a number of Inspectors from different Departments leaving enough room for multiple harassment and even corrupt practices. Further, such multiplicity also leads to conflicting approach, lack of co-ordination, administrative delays etc., thus retarding the growth of food industry.

2. PRAGMATIC ENFORCEMENT APPROACH:

The 'enforcement approach' in all these east Asian countries was found to be quite 'reformative & pragmatic' rather than 'excessively punitive'. This is evident from a few "administrative practices" that are institutionalised and followed in these countries with a view to tackle and resolve the root causes of food laws related offences, rather than embarking upon just lifting the samples and "prosecuting the manufacturers/vendors" on the basis of sample failure reports. Some of these best administrative practices" are as follows:

MALAYSIA

Health Inspectors periodically lift samples of food products from factories, super markets or retail outlets. If their analysis reveals any adulteration, misdeclaration or breach of prescribed food safety and quality standards, a process of dialogue is started by the local Health Inspector with the manufacturer concerned to examine/analyse the root causes of such adulteration or breach of standards. This includes Health Inspector's visit to the factory, examination of production facilities and historical data, etc. An opportunity is also given to the manufacturer to rectify the source of such non-compliance or problem within a period of one month except in cases where analysis reveals serious health hazard to the public. Thereafter, 'statutory samples' are lifted by the Health Inspector of the 'very same product' as per the prescribed Regulations for their fresh laboratory analysis by the Dept. of Chemistry (Ministry of Sciences). If such 'statutory samples' are also found to be failing in meeting the specified quality standards or food regulations, the proceedings for seizure of offending articles, closure of production facilities and criminal prosecution of the accused manufacturer are started by the FDA, as may be warranted under the given circumstances. This administrative mechanism clearly displays the emphasis on 'reform' approach thus avoiding unnecessary prosecutions and consequent waste of costs and time.

THAILAND

FDA Authorities in Thailand place lot of emphasis on the exercise of "pre-marketing controls" by the local Health Authority and Food Inspectors in their day-to-day inspections and functioning. If a food sample is found to be non-conforming to specified food laws and quality standards before starting any punitive action, the Food Inspector,, generally follow the practice of "comparative & representative sampling" from the factories/ departmental stores/retail outlets in order to cross-check the laboratory analysis results of the first sample. If the analysis of such "comparative samples" reveals proper compliance with the specified food standards, the adverse analysis report of the first sample is ignored and no punitive action is taken. This novel administrative practice ensures fairness, transparency and checks the potential abuse of prosecution power against the food industry.

(b)Preference for 'Horizontal Control'

In Thailand there are about 39 food articles which are standardised as "specifically controlled food' and are subjected to 'vertical control'. Rest of the other food products are subjected to 'horizontal control'. This approach is broadly followed for each major food category, such as, fruits and vegetables based products, dairy products, vegetable oils and fats, etc. This, of course, requires the food manufacturers to use food additives, colouring and flavouring substances, etc. within their "maximum prescribed levels" and to follow 'codex' norms and standards so as to ensure food safety. Such broad-banding enforcement approach encourage the food industry to launch new and innovative food products beyond 39 specifically and verifically controlled food articles.

(c)Emphasis on Consumers' Awareness:

Further, FDA in Thailand undertakes the launch of consumers' awareness campaigns from time to time in print and TV media to educate the various aspects of adulterated, substandard and mis-branded foods which place considerable onus and pressure on the manufacturers and traders of food articles to comply with food quality, safety and labelling norms. For example, FDA spent about 23 million baht on consumers awareness media campaign called "Read Label Before Buying" during 1996-97.

INDONESIA

In Indonesia, FDA Authorities generally follow what they call "mushawara approach" i.e. a consultative and collaborative approach with the food industry. In case of failure of food sample, the Food Inspector would first visit the factory and examine the historical data about the quality, hygiene, standards, etc. and try to find out the possible reasons for non-compliance of quality or prescribed food safety standards for their correction. Prosecution cases are booked in rare cases only involving serious health hazards or deaths,. whereas in case of minor breaches the offending food articles are seized and destroyed.

TURKEY

Food Factories are subjected to periodical quality checks and audits by the Inspectors from local Municipal Councils/Ministry of Health to ensure that packed foods strictly conform to the specified or approved quality standards. If there is any lot or batch found to be not conforming to such standards, the Health Authorities can direct the factories to recall the sub-standard/adulterated products and re-process or destroy them as may be warranted in the best interest of public health.

3. DISTINCTION BETWEEN 'ADULTERATED' & 'SUB-STANDARD FOOD':

Unlike in India, a clear distinction is made in Thailand between sub-standard and adulterated food under their Food Act of 1979. In India, under PFA quality standards of about 300 food articles are prescribed which are 'recipe-oriented' with zero tolerance. These standards are very rigid and the slightest deviation or non-compliance attracts prosecution though it may not render the food article "adulterated" or unfit for human consumption. For example, moisture level in skimmed milk powder is specified as not exceeding 5.0%. If the analysis reveals minor deviation in moisture, say 5.2%, this would be treated as a case of "adulteration' under PFA though such marginal excess of moisture by 0.2% may not necessarily render the skimmed milk powder unfit or harmful for human consumption. In short, Indian food legislation does not recognise any distinction between a 'sub-standard' food and an 'adulterated' food.

In comparison, under Thailand's Food Act, a food article is deemed to be adulterated if it is not upto the prescribed quality or standards and the quality or standard of such food is found to "deviate from the upper or lower specified limit more than thirty per cent or its deviation may be harmful to the consumer" [Sec.27 (5)1. But if such deviation from the upper or lower specified limits is less than 30%, the food article is deemed to be 'substandard', and not 'adulterated' (See. 28). Moreover, as a part of. the administrative practice, FDA authorises in Thailand also permit a tolerance limit upto 10% from the specified quality or standards in order to allow margin for analysis or interpretation related errors occurring during the course of laboratory analysis.

4.SCREENING BOARD FOR PROSECUTION APPROVALS

One of the most serious problems which food industry in India has been facing for decades is about the almost indiscriminate launching of criminal prosecution cases against the manufacturers/vendors by the LHAs just on the basis of 'sample failure report' of the PA often involving faulty analysis and "subjective or erroneous interpretation" about adulteration or mis-branding. While the District Medical Officer or LHA is expected to thoroughly scrutinise each and every case of sample failures 'on merits'. There is no institutionalised system of ensuring 'objectivity and fairness' in the decision-making process prior to the launch prosecutions by LHA. As a result, food industry and trade are frequently impleaded in prosecutions for minor/flimsy reasons devoid of any substance and far from the key object of protection of public health.

During the Survey, it was found that in Thailand, there is an 'institutionalised system' to check any possibility of such misuse of prosecution authorising powers on the part of one single officer. This is implemented by the FDA through a body of decision-making group called as "Legal Affairs Group" comprising of 9 members.

We, therefore, need to consider adoption of mechanism or institution similar to that of Thailand with suitable changes for setting up a Screening Board or Advisory Committee at the State and District levels to ensure objectivity, fairness and transparency in launching prosecutions against PFA violations. This singular change will indeed go a long way in promoting the good of the food industry as well as improving the quality of enforcement of food laws in India. This will not only eliminate large part of the administrative harassment and corruption that manufacturers/vendors constantly experience due to indiscriminate launch of prosecution cases even for minor or technical breaches but also release/save considerable time, costs and manpower resources of the enforcement authorities and trial Courts who are otherwise mostly engaged in attending to these frivolous cases.

5. SECOND ANALYSIS REPORT - ITS FINALITY

In India, under PFA a manufacturer/vendor is afforded an 'option' to seek the second analysis of the food sample lifted by the food Inspector. The counterpart sample is referred by the trial Court to a Central Food Laboratory (CFL) whose report is treated as final, superseding the first sample analysis report of the Public Analyst (PA). Thus the second sample analysis report of the CFL is elevated to the status of the "Final Report" leaving no discretion with the trial Courts to hold otherwise even if there are weighty and valid reasons for not accepting the findings of the CFL's second analysis report.

However, under the food legislations of Malaysia, Turkey and Pakistan, no such 'finality' is legally attached to the second sample analysis reports. Under the Malaysian Food Act, the second analysis of sample is permitted by the trial Court at the request of the either party to such proceedings and its analysis report is treated as a "prima-facie" evidence only which is rebuttable by the aggrieved party. Similarly, in Turkey the second analysis report is not treated as 'absolute and conclusive' and the Court is vested with the discretion to seek outside expert and independent technical opinion (say, from a University Laboratory) to reach its final conclusion. Thus, the Presiding Judge in Malaysia and Turkey are conferred with the powers to be the final arbites on the evidendiary value and acceptability or otherwise of the conflicting evidence between the first and second analysis reports.

Likewise, in Pakistan the counterpart sample may be sent by the Court on its own accord or on the request of the accused for second analysis by the Chemical Examiner of Govt.'s lab and his certificate is treated as sufficient evidence of the facts stated therein until the contrary is proved.

6. MAXIMUM TIME LIMIT FOR PROSECUTIONS

Unlike India, Malaysian, a maximum time limit of 90 days is fixed for launching prosecution from the date of purchase or procurement of food sample by the Health Inspector. Such a time limit ensures quicker and fair trial without the sample suffering deterioration during long storage.

In India, though a time limit has been prescribed under PFA for submission of Analysis Report by the PA (40 days), as per food industry's experience, generally there is considerable time-lag between receipt of analysis report from the PA lab and final launching of prosecutions. Such a delay causes serious prejudice to the manufacturers/vendors as the consequential analysis of the second part of the sample by CFL also gets delayed. The quality characteristics of the food sample often undergo considerable deterioration or changes due to' insect infestation, absorption of moisture, discoloration, development of free fatty acid, etc. Thus, second samples often fail to comply with the prescribed quality or standards when analysed by CFL after long lapse of time. This calls for fixing of maximum time limit for launching of prosecutions from the date of draw of samples.

7. REFERENCE SAMPLE TO MANUFACTURERS/VENDORS:

Under PFA, the sample taken by Food Inspector from a manufacturer/vendor are divided into three parts, out of which one part is sent for analysis to the PA lab and remaining two parts to the concerned Local Health Authority (LHA) for future reference/re-analysis, if necessary. The manufacturer/vendor is, however, not given any counterpart of the sample for his private analysis ( in order to prepare for his defence) which is against all cannons of fairness, transparency and justice.

This practice is quite at contrast with the position followed in Malaysia, Turkey, Pakistan and South Africa where a counterpart of the lifted sample is given to the manufacturer/ vendor from whom the article is purchased or seized for his private analysis. This helps the manufacturer/vendor to adequately prepare for his defence.

8. INNOVATION FOODS:

As regards innovation of 'non-standardised foods', the practice followed in India is indeed far more "progressive and innovation friendly". Barring the infant food articles, all non-standardised food articles are allowed to be developed and marketed as "proprietary foods" subject to use of permitted food additives, colours, flavours, etc., without prior approval of their ingredients, formulations and labels by the Govt. This position is quite at variance from the practice followed in east Asian countries where all the innovation foods require prior approval of their formulations and labels by the FDA before marketing. However, such approval is normally granted within 4 weeks.

However, there is a need for some relaxation in PFA to permit certain degree of flexibility for 'innovation of standardised foods' of PFA. If a food manufacturer intends to develop or innovate an 'adjacent category' of a standardised food article in order to reduce the cost and/or deliver incremental product benefits to the consumers, like special or improved flavour, colour, stability, etc., such adjacent category innovation is not permitted by the existing law. The present categorisation of standardised food articles in Appendix-B of PFA is 'too straight-jacketed' leaving little or no incentive for manufacturers to deliver food articles of improved variety/taste to the consumers. Such straight-jacket approach needs to be reviewed and some mechanism should be provided to grant the desired flexibility and encouragement for food innovations with respect to the category of standardised '10 foods proscribed under Appendix 'B' of PFA.

9.STATUTORY PROTECTION TO
"MANUFACTURING PROCESS & TRADE SECRETS

The experience of food industry in India suggests that 'a part of the well organised and large food companies are often reluctant to approach the Govt. specified technical Bodies on food standards for want of statutory protection to their manufacturing or trade secrets. There is a need to take care of this problem for the growth of food industry in India.

In Malaysia statutory protection is granted for maintaining manufacturing/trade secrets of food manufacturers. Any 'unauthorised disclosure or leakage' of information regarding manufacturing process or trade secrets of a food manufacturer is liable to attract punishment by imprisonment for a term upto 5 years or fine or both.

Likewise, there is also a provision under the Thailand laws to check administrative abuse of powers by FDA Officers or Inspectors through administrative punishment and damages' claim.

10. GRADED PUNISHMENTS:

One of the most complex problems which characterises PFA as outdated and draconian' is the absence of graded punishment structure for different kinds and degrees of violations committed by the food manufacturers/traders under PFA.- No one within the food industry can, and would, ever oppose imposition of severe punishment on those who are manufacturing/ selling spurious, sub-standard or harmful food articles causing grave exposure to public health and life. However, at the same time, the food industry does not support the existing statutory provisions under PFA prescribing minimum mandatory imprisonment of six months (which can be reduced to 3 months for adequate and special reasons) with fine for an offence of adulteration as also for an offence of misprinting or non-printing of any label declaration constituting an offence of mis-branding.

In comparison, if we look at the statutory provisions and practices of Thailand, Malaysia, Indonesia, Turkey and South Africa, we find that their punishment structure is graded according to the severity of violations involved. For example, in Malaysia an offence of food adulteration is punishable with "imprisonment for a term not exceeding five years or fine or to both". But offences of labelling not complying with prescribed food standards, false labelling or deceptive advertisements attract lesser punishment. In none of these countries, the imprisonment is made mandatory in all categories of offences as their philosophy is to first deal with the offence through imposition of administrative fines or closure of the offending factories/establishments till the proscribed standards of quality and hygiene are achieved and even if prosecutions are to be launched as a last resort, their food laws provide for imposition of heavy fines. The sentence of imprisonment is imposed only in the cases of habitual offence or serious violations.

11. COMPOUNDING OF OFFENCES:

Under PFA, on failure of sample as per PA lab analysis Report, LHA proceeds to file prosecutions against the manufacturer/vendor concerned. There is no statutory provision to serve a prior show cause notice on the accused manufacturer/vendor to seek his clarification/reply and afford him an opportunity of "compounding the offence" even for the inadvertent, minor or technical breaches (e.g., non-printing or misprinting of statutory label declarations like that of date of manufacture or code number on a food package due to human error, accident or machine failure). However, absence of such facility is quite strange particularly when such a facility for prior show cause notice and compounding (once in 3 years) is very much made available to a manufacturer/vendor under the Standards of Weights & Measures Act, 1976 and its Rules, 1977.

The Indian practice is quite at variance with a statutory provision existing under the food laws of east Asian countries and South Africa permitting a manufacturer/vendor to compound minor violations of food laws involving no risk or exposure to public health.

For example, in Malaysia certain. prescribed category of offences against the Food Act or its Regulations are permitted to be 'compounded' by the Director or any authorised Officer for payment of a sum not exceeding Ringgit 1000/- (Rs.12,000/approx.) and on such payment the seized food articles are 'destroyed' without any further proceedings against the manufacturer or vendor. Such compounding facility is also permitted in Thailand and Indonesia in respect of minor category of violations involving risk to human health or life.

12. TRIAL OF MISBRANDING OFFENCES:

The offence of mis-branding as defined under PFA are mostly 'interpretative in nature'. Food industry and trade 'believe that this category of violations could be better handled by the Consumer Forums at District levels or MRTP Commission at the Central level in the manner in which 'Unfair Trade Practices' are dealt with for protection of the consumers. Therefore, it may be worth considering to shift out misbranding. offences from the purview of PFA so as to reduce the excessive strain and burden on the LHAs[Food Inspectors, who would then have more time and resource on their hands to devote for combating the menace of food adulterations only. In Malaysian ail offences pertaining to mislabelling or misbranding of food products are separately dealt with and tried by the Ministry of Domestic Trade and not by the Health Ministry.

SUM UP

There are number of lessons that we in India may draw from the legislative provisions and best enforcement practices of these countries for adoption with suitable modifications to suit our peculiar environment and needs. Briefly stated, these provisions and practices are rebating to unified food laws, more pragmatic enforcement approach, adoption of administrative or comparative sampling system instead of launching prosecutions on the basis of the first sample failure report itself, prior screening of sample failure cases by a Screening Board or an Advisory Committee of technical, food safety and legal experts in order to ensure objectivity and fairness in prosecution approvals, vesting the trial Courts with the authority to evaluate' the evidentiary value of the second analysis report before accenting its finality, grant of compounding facility for inadvertent, minor or purely technical category of offences, grant of right to manufacturer/vendor to retain one counterpart of the sample for his own analysis/legal defence, fixation of maximum time limits for launch of prosecution, grant of flexibility for encouraging "adjacent category innovation of standardised foods", statutory protection to manufacturing process and trade secrets, gradation of punishments for adulteration & misbranding offences according to their severity, and dispensing with the sentence of mandatory imprisonment in all such cases. The experiences of the east Asian countries clearly show that while their food legislations are no less stringent in so far as their concern for protection of public health and consumers interest are concerned, yet they are quite pragmatic and flexible in their enforcement approach so as to ensure that food industry and trade are not subjected to unnecessary harassments or frivolous prosecutions.

Therefore, there is a crying need for change in our mindset' in order to modernise', harmonise and revamp our food legislations and evolve transparent, fair and pragmatic enforcement practices without compromising on food safety standards and public health.

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