Who is liable and what to do if the online food delivery service provides adulterated or tampered food from the hotel?

0
95
online food delivery service

“Safe, wholesome and hygienic food will create Swasth Bharat.” said Prime Minister, Narendra Modi. Item 18 of the Concurrent List in Schedule VII of the Constitution of India deals with ‘Adulteration of foodstuffs and other goods.’ As technology advances, newer means of food delivery service providers have entered the market. It becomes imperative that the existing laws adapt to the e-trend and regulate food safety in the country.

Food Laws in India:

The legislation that dealt with food safety in India was the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “PFA“). The PFA had been in place for over five decades and there was a need for change due to varied reasons which include the changing requirements of our food industry. Hence, the Food Safety and Standards Act, 2006 (hereinafter referred to as ‘FSSA’) was passed.  It specifically repealed eight laws which were in operation prior to the enforcement of FSSA:[i]

  • The Prevention of Food Adulteration Act, 1954
  • The Fruit Products Order, 1955
  • The Meat Food Products Order, 1973
  • The Vegetable Oil Products (Control) Order, 1947
  • The Edible Oils Packaging (Regulation) Order, 1998
  • The Solvent Extracted Oil, De oiled Meal, and Edible Flour (Control) Order, 1967
  • The Milk and Milk Products Order, 1992
  • Essential Commodities Act, 1955 (in relation to food)

The Food Safety and Standards Act, 2006:

The FSSA is an Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto.[ii]

S.26 of the FSSA lays down the responsibilities of the Food Business Operator, who shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made there under at all stages of production, processing, import, distribution and sale within the businesses under his control. S.27 of the FSSA imposes liability on manufacturers, wholesalers, packers, distributors and sellers. Chapter IX provides about offences and penalties in an exhaustive manner. Penalty exists for selling food not of the nature or substance or quality demanded,[iii] for selling sub-standard food,[iv] misbranded food[v] etc. Punishment has been provided for providing unsafe food,[vi] carrying out a business without license[vii] etc.

Section 91 of the Act empowers the Central Government to make rules under the Act. Some of these rules enacted by the Government which regulates the standard of food products are:

  • Food Safety and Standards (Licensing and Registration of Food Businesses) Regulation, 2011.
  • Food Safety and Standards (Packaging and Labeling) Regulation, 2011.
  • Food Safety and Standards (Laboratory and Sampling Analysis) Regulation, 2011.
  • Food Safety and Standards (Food Product Standards and Food Additives) Regulation, 2011.

Food Safety and Standards Authority of India (FSSAI):

The Act also aims to establish a single reference point for all matters relating to food safety and standards, by moving from multi- level, multi- departmental control to a single line of command. To this effect, the Act establishes an independent statutory Authority – the Food Safety and Standards Authority of India with head office at Delhi.[viii] Food Safety and Standards Authority of India (FSSAI) and the State Food Safety Authorities shall enforce various provisions of the Act.

FSSAI has been mandated by the FSSA, 2006 for performing the following functions:[ix]

  • Framing of Regulations to lay down the Standards and guidelines in relation to articles of food and specifying appropriate system of enforcing various standards thus notified.
  • Laying down mechanisms and guidelines for accreditation of certification bodies engaged in certification of food safety management system for food businesses.
  • Laying down procedure and guidelines for accreditation of laboratories and notification of the accredited laboratories.
  • To provide scientific advice and technical support to Central Government and State Governments in the matters of framing the policy and rules in areas which have a direct or indirect bearing of food safety and nutrition.
  • Collect and collate data regarding food consumption, incidence and prevalence of biological risk, contaminants in food, residues of various, contaminants in foods products, identification of emerging risks and introduction of rapid alert system.
  • Creating an information network across the country so that the public, consumers, Panchayats etc receive rapid, reliable and objective information about food safety and issues of concern.
  • Provide training programmes for persons who are involved or intend to get involved in food businesses.
  • Contribute to the development of international technical standards for food, sanitary and phyto-sanitary standards.
  • Promote general awareness about food safety and food standards.

Regulations for e-Commerce Food Business Operators:

In February 2018, FSSAI operationalized guidelines for e-Commerce Food Business Operators (FBOs) which, inter alia, provided for display of FSSAI license number of listed FBOs on e-Commerce platforms and an agreement between the e-Commerce platforms and FBOs to comply with the FSS Act, Rules and Regulations. However, FSSAI noted with serious concern that the compliance to these guidelines was patchy and there were complaints of restaurants/hotels without FSSAI license being listed and allowed to offer/sell food products on e-commerce food service platforms. There were also several complaints of sub-standard food being delivered to consumers through online market aggregators. Following a series of complaints related to sub-standard food being supplied by food businesses listed on e-Commerce food service platforms, FSSAI has directed 10 such platforms to debar the non-FSSAI licensed/registered food operators and ensure compliance of food safety rules and regulations. The current list includes Box8, Faasos, FoodCloud, Foodmingo, Foodpanda, JusFood, LimeTray, Swiggy, UberEats and Zomato. [x]

‘Adulterant’ as per the FSSA means any material which is or could be employed for making the food unsafe or sub-standard or mis-branded or containing extraneous matter.[xi] The question that arises for consideration is who becomes liable, hotel or online food delivery service provider, for providing adulterated or tampered food. In late 2018, a food delivery executive was found consuming food, from the packets he was about to deliver to a Zomato client. Such a video became viral in all the social media websites. Following the incident, FSSAI issued further guidelines for online ecommerce Food Business Operators (FBOs).

The FSSAI issued amendment regulations to the Food Safety and Standards (Licensing and Registration of Food Business) Regulations, 2011 to be operationalized with immediate effect. Section 1 deals with the licensing and registration of e-commerce food business operator.

Regulation 2.2.2 lays down the responsibilities of e-commerce FBOs:

1. The sellers/ brand owners/ manufacturers on the ecommerce platform shall be required to display their License / Registration obtained under the FSS Act and Regulations and hygiene grading of FBO a may be assigned by FSSAI.

2. All ecommerce FBOs are required to sign an agreement with the sellers/brand owners/manufacturers averring that they are compliant with FSSA, Rules, Regulations and the liabilities shall rest with these FBOs.

3. The sellers/brand owners/manufacturers shall ensure that a legible and clear picture of principal display panel is made available for viewing by the consumers.

4. Any food article delivered to consumer by ecommerce FBO shall have shelf life of 30% or 45 days before expiry at the time of delivery to the consumer. Provided that, in case of caters or restaurant order through electronic media only fresh food item shall be delivered to the consumer.

5. The food products offered for sale by the ecommerce FBO shall be liable to sampling at any point of the supply chain.

6. It shall be ensured by the e-commerce FBOs that the last mile delivery is undertaken by trained delivery personnel and the safety of the food product is not compromised at the time of delivery.

7. Ecommerce FBOs shall ensure that no misleading information/false claims to the product or misleading images of food products are made available or shown on their platform.

8. E-Commerce entities providing listing/directory of FBO/Food Products on their platform shall list the rating/ranking of FBO, voluntary or mandatory, as may be specified by Food Authority.

9. The e-commerce FBO shall immediately delist any food products listed on their platform, which are not in compliance with the FSSA, Rules or Regulations made there under.

10. Complaints relating to product efficacy, quality or any there such issues shall be communicated immediately by e-commerce FBO to the sellers/ brand owners/importers/manufacturing company concerned for expeditious resolution.

Conclusion

Thus, it is clear that the Indian regulator FSSAI has laid down strict norms to make both the hotel and the online food service provider liable for providing adulterated/tampered food. It is suggested that these laws be amended expeditiously as and when new methodologies of market expansion are deciphered.

Reference

[i] S.97, The Food Safety and Standards Act, 2006, read with Schedule 2.

[ii] Preamble, The Food Safety and Standards Act, 2006.

[iii] S.50, The Food Safety and Standards Act, 2006.

[iv] S.51. The Food Safety and Standards Act, 2006.

[v] S.52, The Food Safety and Standards Act, 2006.

[vi] S.59, The Food Safety and Standards Act, 2006.

[vii] S.63, The Food Safety and Standards Act, 2006.

[viii] S.4, The Food Safety and Standards Act, 2006.

[ix] https://archive.fssai.gov.in/home/about-us/introduction.html

[x] Press Release, FSSAI directs e-commerce entities to debar non-licensed FBOs, 12th July 2018, https://archive.fssai.gov.in/dam/jcr:8a1c65f9-ebaf-4b1b-a360-8e58f2abbaf4/Press_Release_E_Commerce_FBOs_License_20_07_2018.pdf

[xi] S.3(1)(a), The Food Safety and Standards Act, 2006.

LEAVE A REPLY

Please enter your comment!
Please enter your name here