WOES OF THE HOTELIERS-A COURT''S WISE ADVICE

Does cooking and serving food constitute manufacturing? There may not be a clear answer to this vexed question which is causing some problem for the FSSAI to enforce its Rules and Regulations primarily targeted at Food manufacturing industry. When cooking assumes commercial tone and food preparations are made in large quantities using mechanized gadgets, it may be difficult to argue that this does not constitute manufacturing. After all there is a lot of commonalities between the food made in a restaurant and processed by the main stream industry such as raw material standards, preparation environment and its safety, sanitary aspects of gadgets and other paraphernalia used, personnel hygiene, storage conditions and product specifications. Therefore the contention of hoteliers that the food laws as they exist to day in India are not applicable to them may not be valid. Recent judgment by the judiciary in Mumbai asking the Government to frame separate rules for hotels may not be justifiable. Here is a take on this court ruling which may cause some discomfort to the food safety authorities.  

The Bombay High Court today suggested the Maharashtra government to frame separate rules and regulations under the Food Safety and Standards Act (FSSA) for food service providers like hotels and restaurants. A division bench of Chief Justice Mohit Shah and Justice M S Sanklecha was hearing a petition filed by the Association of Indian Hotels and Restaurants (AHAR), which has over 6,000 members, challenging the constitutional validity of FSSA 2006 and the Rules and Regulations framed under the Act in 2011. According to the petitioner association, the provisions of FSSA are not applicable to food hotels and restaurants as they do not manufacture food. "The Act deals only with manufacturing of food articles and are mainly and substantially for manufacturing units. In hotels and restaurants food is cooked and served to customers. Cooking of food is not manufacturing," the petition states.

It is rather ingenious for one to argue that restaurant foods do not constitute "manufacturing" and hence the existing laws must not be enforced within a hotel! What if the Government amend the law to include food preparations in commercial establishments like hotels also in its ambit which may be perfectly justified? If it is a question of scale of operation, food industry has also small and cottage scale operators who are bound by the law and same should apply to restaurants also. The food laws are intended to protect the citizens from unsafe and sub-standard foods and therefore the standards should not be diluted at any cost. On the other hand there is a case for more making the rules more stringent because the vulnerability of citizens to food poisoning is much more when restaurant foods are consumed than consuming packed foods made by the food industry.

V.H.POTTY
http://vhpotty.blogspot.com/
http://foodtechupdates.blogspot.com

FSSAI'S "MAGNA CARTA"!-A HALF BAKED "CAKE" AT BEST?

It took more than 5 years for various ministries in the GOI to convert the 2006 Act into an "implementable" program and there could be justified jubilation that at last India has a unified food safety enforcement program equitable and legally sound that is beyond challenge in any court. Unfortunately this was only a pipe dream as the Rules and Regulations promulgated as a part of the Act are being challenged in different parts of the country for various reasons, some genuine and others by parties with vested interests. It is sad that the Law Ministry of GOI did not foresee this development even after "vetting" for years together and the consumer safety has become the casualty of such official callousness. Here is some aspects of FSSAI rules and regulations now being challenged in Tamil Nadu courts recently. 

"The judge stated that he was inclined to pass such orders as the High Court had already granted similar interim orders on November 8 last year in two other writ petitions. The provisions that were stayed included Sections 3(1)(a), (za), (zf), 5(1)(a), 13, 14, 23, 31, 40, 50 to 65 and 77 of the Food Safety and Standards Act, 2006. According to the petitioners, the Legislation enacted in 2006 and implemented from August 5 last year severely affected those engaged in food business. While the first three Sections that were challenged related to the definitions of adulterant, licence, and misbranded food, the other provisions related to composition of Food Authority, scientific panels, and scientific committees for implementing the Act. The Sections dealing with packaging and labelling of foods and licensing and registration of food business were also under challenge. The petitioners were also aggrieved against provisions imposing penalties, which they termed as very high. Sections 50 to 65 of the Act stipulated the penalties and punishments that could be imposed for manufacturing and selling sub-standard food, misbranded food, food containing extraneous matter and for issuing misleading advertisements".

That food industry in general is not happy with the law of the land now being enforced is well known, though part of this dissatisfaction might be due to making some provisions some what stringent to its liking.  It is not clear what lies ahead for the consumer in this country with the operation of many important provisions being stayed by the court. Is it going to be a free for all situation where fraudsters and adulterators can make tons of money at the expense of the consumer? Another debatable point is whether the courts are justified in staying the operation of such an important legislation since "loss of business" can never over ride the safety of the citizens in the country. If at all the Law was found deficient legally, the court could always order compensation from the government in lieu of business lost. One can only hope that the legal complications surfacing now will be resolved with least delay in the interest of all concerned. 

V.H.POTTY
http://vhpotty.blogspot.com/
http://foodtechupdates.blogspot.com

THE TURKEY "SYNDROME"-CHICKENS COME HOME TO ROOST!

Recent food poisoning episode involving ground Turkey meat from one of the largest food companies in the world reflects the risks involved in food business. No excuse is adequate to cover up the laxity on the part of the manufacturer to exercise sufficient diligence in ensuring supply of safe foods to the market and retribution is inevitable in the form economic losses due to product recall and damage suits. This episode raises the critical question whether the current incidence is an accident or the manufacturer is a habitual defaulter. If the past records are any indication, it appears such breach of safety regulations has been going on with hardly any punishment meted out for these violations. In this context consumers taking the culprit to the court is nothing but logical and more such court cases can be expected arising out of the callousness of the industry.

"The family of a 10-month-old Troutdale, Oregon girl filed a lawsuit against Cargill Meat Solutions this week, alleging that the child is one of more than 107 people nationwide who became seriously ill with an antibiotic-resistant Salmonella Heidelberg infection linked to ground turkey produced by the food giant. The lawsuit was filed in Oregon Federal District Court in Portland by Seattle-based food safety law firm Marler Clark. According to the complaint, the child ate Cargill ground turkey as part of a spaghetti and meatballs dinner her father prepared in early June. By June 10, she had developed severe diarrhea and a very high fever. By June 15, following numerous visits to the doctor, the doctors determined that the antibiotic-resistant Salmonella Heidelberg had entered the child's bloodstream, and she was rushed to Doerenbecher hospital, where she was treated for seven days. The family's attorney, Bill Marler, says Cargill owes it to the family to take responsibility for its actions. "Since 1993, Cargill has been the source of contaminated meat implicated in at least 10 major outbreaks, 10 deaths, three stillbirths and 366 illnesses," said Marler, who is publisher of Food Safety News. "Considering that these illnesses are likely undercounted by a factor of at least 20, those are significant numbers. What would we say if a car company or some other product manufacturer had the same numbers for an ongoing defect,? Since1993, Cargill -- the largest privately held corporation in the U.S. in terms of revenue -- has been responsible for at least 10 major foodborne illness outbreaks, which resulted in 366 illnesses, 10 deaths, and 3 stillbirths. Public health officials have thus far have attributed 107 illnesses and at least one death to the consumption of ground turkey produced by Cargill. On July 29, the company recalled 36 million pounds of ground turkey, the largest Class I meat recall in U.S. history".

One can only admire the environment in a country like the US where judiciary is receptive and responsive to citizens' grievances and taking very little time to dispose of such consumer complaints. In contrast it takes years for getting justice in India and even government initiated food safety violation cases are in limbo because of the "tortoise" like pace of convictions of food criminals. Of course there are critics who feel that trial lawyers in the US are "over eager" to "capture" clients for getting compensation of which they share as much as 50% in many cases! Probably India should have special "Legal Food Courts" with mandate to decide on each case of violation with a reasonable time frame, say 30-60 days. The deterrent quantum of punishment also needs to be enhanced instead of the current puny fines. The so much trumpeted Food Safety Act which took 6 years to materialize from government "cupboard" may be far short of the need at the ground level, assuming it will be implemented with no fear or favor.

V.H.POTTY
http://vhpotty.blogspot.com/
http://foodtechupdates.blogspot.com