Implications of Non Compliance with the Provisions of FSSAI

Ashish M. Shaji

12 Jan, 2021

Overview

Have you ever wondered about opening up a restaurant or a food outlet? If you are planning to do so, then you are strongly advised to go through the FSSAI provisions. Today you see many food industries growing in business, and you may also think of setting up a food outlet, but this may be a complex task as you require adhering to every provision of the food regulations. After all, it’s about the safety and well being of the consumers. Since the safety of consumers is paramount; therefore, every food industry must strictly follow the guidelines, and non-compliance with FSSAI Act may invoke penal provisions under it. This article identifies the offences and the penal provisions under the FSSAI Act, but before that, we need to understand the meaning and the object of the FSSAI.

What is FSSAI?

Food Safety and Standards Authority of India (FSSAI) is a self-governing body that regulates and monitors the food business in India. It is established under the Ministry of Health and Welfare, Government of India. FSSAI is responsible for raising the standards of food safety in India. It makes sure that the food product undergoes quality checks before being consumed by the general public. It helps in the prevention of food adulteration or the sale of sub-standard food products. FSSAI is responsible for licensing and registering food business operators in India.

Objective of FSSAI

The main objective of FSSAI is to:

• Provide safety of food
• Prescribe science-based standards for articles of food
• Regulate and ensure proper manufacture, distribution, storage, import, and sale of food.

Apart from these, the FSSAI shall obligate the food business operators to follow its compliances to ensure safe and wholesome food for the consumption of people. Any non-compliance with FSSAI shall be punishable. It is also the only source of providing guidance and issuing advisories for matters related to food safety. 

Offences and Penalties for non-compliance with FSSAI

Just like any other industry is required to comply with concerned authorities, food industries also need to be compliant with the laws and the guidelines of the FSSAI. In case the provisions are not complied with, then strict penalties would be imposed on the violators as the matter is concerned with the health and safety of people. The provisions of penalties are specified under sections 49 to 67 of the Food Safety and Standards Act.

The Act identifies offences under section 48 as adding, using, subtracting, or subjecting any article, substance to the food that may cause injury to health as non-compliance with FSSAI. Section 49 states that before an arbitrator decide on the quantum of penalty, he or she must consider a few points:

1. Consideration of the illegal advantage or the amount of profit made by infringement.
2. Recurring aspect of the violation or the infringement
3. Loss caused due to the infringement
4. Or any other valid point.

Let’s study the offences and penalties in detail under the Food Safety and Standards Act, 2006 (hereinafter mentioned “FSSA 2006”).

• Under Section 50 of the FSSA 2006, if any person sells food which does not satisfy the demand, quality, nature, or substance required by the purchaser, then the person who sells such food shall be liable for non-compliance with FSSAI and will be penalised with an amount not exceeding Rs. Five lakhs.
• Under Section 51 of the FSSA 2006, if any person, himself or through some other person, sells, stores, distributes, or imports any food article that is of sub-standard shall be liable for a penalty that may extend to Rs. Five lakhs.
• Under Section 52 of the FSSA 2006, if any person, himself or through some other person, sells, stores, distributes, or imports any food article that is misbranded shall be liable to a penalty that may extend to Rs. Three lakhs. The responsible officer shall ask the person guilty of such an offence to take corrective measures and amend the actions; otherwise, the food article shall be destroyed.
• Under Section 53 of the FSSA 2006, if any person publishes or is a party to the publication that falsely describes or advertises food and which may deceive or trick with respect to its nature, substance or quality or if it provides a dishonest guarantee, shall be liable to a penalty that may extend to Rs. 10 lakhs.
• Under Section 54 of the FSSA 2006, if any person, himself or through some other person, sells, stores, distributes, or imports any food article that consists of any extraneous matter, shall be liable for a penalty that may extend to Rs. One lakh.
• Under Section 55 of the FSSA 2006, if any food business operator or an importer commits non-compliance with FSSA Act without any basic or reasonable ground, shall be liable for a penalty that may extend to Rs. two lakhs in accordance with the directions of the Food Safety Officer.
• Under Section 56 of the FSSA 2006, if any person, himself or through some other person on his behalf, manufactures or processes any food article in conditions that are unhygienic or unsanitary, shall be liable for a penalty of amount that may extend to Rs. One lakh.
• Under Section 57 of the FSSA 2006, if any person, himself or through some other person on his behalf, manufactures, processes, imports, sells or distributes any adulterant shall be liable to:
  • A penalty of an amount not more than Rs. two lakhs in case such adulterant is not injurious to health.
  • A penalty of an amount not more than Rs. Ten lakhs in case such adulterant is injurious to health.
  • Where in a proceeding under sub-section (1), if it is found that the accused person was holding the adulterant on behalf of some other person, it shall not be considered as a valid defence.
• Under Section 58 of the FSSA 2006, if any person violates or opposes the rules and regulations as prescribed under the Act or contravenes any provision for which any penalty has not been separately prescribed or commits non-compliance with FSSAI, shall be liable to a penalty that may extend to Rs. two Lakhs.
• Under Section 59 of the FSSA 2006, if any person, himself or through some other person on his behalf, manufactures, processes, imports, sells or distributes any food article which is considered unsafe:
  • Shall be punished with imprisonment for a term that may extend to six months along with fine that may extend to Rs. One lakhs if such contravention or failure on the part of that person does not result in injury.
  • Shall be punished with imprisonment for a term that may extend to one year and shall also be liable for a fine that may extend to Rs. Three lakhs, if such contravention or failure on the part of that person, results in injury.
  • Shall be punished with imprisonment for a term that may extend to six years and also shall be liable to a fine that may extend to Rs. Five lakhs if such contravention or failure on the part of that person results in a grievous injury.
  • Shall be punished with imprisonment for a term that shall not be less than seven years but may extend to imprisonment for life and with a fine that will not be less than Rs. 10 lakhs if such contravention or failure on the part of that person results in death.
• Under Section 60 of the FSSA 2006, if any person without the permission of the Food Safety officer, removes or tampers with food, vehicle, package, equipment, labelling or advertising matter which has been seized, shall be punished with imprisonment for a term that may extend to six months and along with fine that may extend to Rs. two lakhs.
• Under Section 61 of the FSSA 2006, if any person provides any incorrect, misleading or any false information required under this Act and that the person knows it to be false, shall be punished with imprisonment for a term that may extend to three months and along with fine that may extend to Rs. two lakhs.
• Under Section 62 of the FSSA 2006, if any person obstructs or attempts to obstruct, threaten, resist, intimidate or assault a Food Safety Officer in the course of his inspection, etc., shall be punished with imprisonment for a term that may extend to three months along with fine that may extend to Rs. One lakh.
• Under Section 63 of the FSSA 2006, if any person or a food business operator who is required to obtain the license, himself or by some other person on his behalf, manufactures, sells, distributes, stores or imports any food article without a licence, will amount to non-compliance with FSSAI and will be punished with imprisonment for a duration that may extend to six months and along with fine that shall extend to Rs. Five lakhs.
• Under Section 64 of the FSSA 2006, if any person once convicted of an offence punishable under this Act subsequently commits the same and is convicted of the offence, he or she shall be liable to-
  • Cancellation of his or her licence
  • An additional fine on a daily basis which can extend to Rs. one lakh, if the offence is a continuing one
  • Twice the punishment that would have been given on the first conviction, subject to the punishment provided maximum for the same offence.
• Under Section 65 of the FSSA 2006, if any person, himself or through some other person on his behalf, manufactures, processes, imports, sells or distributes any food article causing death or injury to the consumer, it shall be legal for the adjudicating officer or as the case could be, the court to ask him to pay the compensation to the victim or to the legal representative of the victim. The amount of compensation shall:
  • In case of grievous injury, not exceed Rs. three lakhs
  • In case of death, not exceed Rs. five lakhs
  • In case of all other cases of injury, not exceed Rs. One lakh. Provided that the compensation shall be paid as early as possible and must be paid within six months from the date of occurrence of the incident; provided further that an interim relief shall be paid to the next of kin in case of death, within thirty days of such incident.

It must be noted that the adjudicating officer, in the event of a person held guilty of an offence leading to death or grievous injury, may cause the name and the place of residence of the person and the offence and penalty of the accused to be published in newspapers or in such other manner at the offender’s expense. The court or the adjudicating officer may also order for cancellation of the licence or forfeiture of establishment or property in case of a consumer’s death or grievous injury.

• Under section 66 of the FSSA, 2006, if a company commits an offence under this Act, then every individual who was in charge of such company when the offence was committed, shall be held guilty and will be liable to be punished accordingly for non-compliance with FSSAI.
• Under section 67 of the FSSA, 2006, if a person imports any food article which is in contravention of the provisions of this Act and by doing so he or she commits non-compliance with FSSAI, rules, and regulations, such person shall be liable to be proceeded against and in addition to any penalties to which he or she may be liable under Foreign Trade and Customs Act, 1962.

If permitted by the competent authority under the Foreign Trade or any other Act, any such food article shall be destroyed or returned to the importer.

Landmark Case related to Non-compliance with FSSAI

Nestle India Limited vs. Food Safety and Standards Authority of India

This case is one of the notable cases that came to the fore from a district in the state of Uttar Pradesh, where samples of Maggi noodles were found with excessive lead and MSG. It was found that the presence of lead in the noodles was beyond the permissible limit. The Food Safety and Standards Authority of India took cognizance of the matter as it found it in non-compliance with FSSAI and directed Nestle India Ltd. to withdraw and recall nine variants of Maggi noodles^[1] since it contained unsafe and hazardous content for human consumption. The authority further took some stringent measures and ordered to stop the production, processing, import, and sale from immediate effect.

The government banned the sale of Maggi noodles from May 2015 across the country. It further slapped a suit on Nestle India, seeking a compensation of 640 crore Rupees for non-compliance with FSSAI.  However, Nestle India rejected the accusation that the noodles were unsafe. Much to the relief of Nestle India, a government authorized laboratory declared the noodles in compliance with the National food safety standards, and later, Bombay High Court also permitted to export Maggi noodles.

Conclusion

Non-compliance with FSSAI is a serious offence, and it is crucial for someone looking to start a food business to go through the standard of food and safety that must be kept.  They must check the FSSAI compliance applicable and any other regulatory requirement. Every food business operator is required to adhere to the guidelines of FSSAI in order to avoid paying hefty penalties applicable to non-compliance with FSSAI.