Food safety infringement-Who will go to jail?

If a food sample is found to be below the standards prescribed or is not safe as per the laid down criteria, who is to be blamed? The retailer, wholesaler, distributor, the warehouse owner or the manufacturer. It is true that the onus of proof regarding food safety and quality squarely lies with the manufacturing company. Unfortunately if the company is in the public sector, cooperative sector, small scale sector or corporate sector how can the government prosecute a company? Of course government can cancel the license or impose heavy fines but if the crime is serious some one has to go to the jail after due judicial decision to that effect. Who will go to the jail? Each manufacturer is supposed to designate one person as the "fall guy" for going to jail if there is an indictment under the food safety law. Is this fair? Probably such issues are not peculiar to India as reflected by the recent debate in a country like the US regarding the rationale of sending one person to jail for the fault of the system. Read further below:

One high profile case was the prosecution of Eric and Ryan Jensen in Colorado. This case is particularly scary because federal prosecutors used the Park Doctrine to prosecute the Jensens. The Park Doctrine creates strict liability. It provides that a responsible corporate official can be held liable for a first time misdemeanor.  (and possible subsequent felony) without proof that the corporate official acted with intent or even negligence, and even if such corporate official did not have any actual knowledge of, or participation in, the specific offense. It means executives may be held criminally responsible for the short-cuts, negligence, wrong-doings of their employees, simply because they "should have" known or supervised or simply because they were in a position of authority over employees or organization that committed wrongdoing. Executives can no longer insulate themselves from prosecution simply because they aren't in the trenches. This can be a daunting proposition for executives of large corporations that are managing hundreds or thousands of employees and have the inability to monitor everyone and everything at all times.   The Jensens were the primary principals in a farming operation known as Jensen Farms in Granada, Colorado.  Jensen Farms supplied cantaloupe to the likes of Walmart and Kroger. The Jensens were tasked with, among other things, operating a conveyor system that cleaned and packaged cantaloupe from the farm.  In or around May 2011, the Jensens revamped the conveyor system that cleaned the cantaloupe. The new conveyor system was never outfitted with the chlorine spray function, which would have reduced the risk of microbial contamination of fruit.  Starting in or about July 2011, Jensen Farms sent out cantaloupe contaminated with listeria that the Government alleges and the Jensens conceded killed at least 33 individuals and caused illnesses in at least 147 people.  The Jensens pled guilty to misdemeanors and were sentenced to a five year probation terms with six months home detention. The prosecution of Eric and Ryan Jensen is significant because there was absolutely no evidence that the Jensens knew the cantaloupe was adulterated before it was sent out into commerce. Instead, all the Government could show is that the Jensens should have been aware that the cantaloupes could be contaminated because the chlorine spray was not used." 

In India a deputy manager of a large cooperative dairy was sentenced for imprisoned for 6 months in May 2014 after one of the samples supplied from his unit was not found to conform to mandatory specifications. One can only sympathize with this official because the punishment is for a lapse on the part of the production system staffed with many workers at different levels. In a manufacturing facility hundreds of workers might be working and the management system could be several tier deep and how can one particular individual be held responsible for the collective failure? After all the employees are paid to work under certain well laid down guidelines and disciplined way but does the pay include the risk involved in going to jail for faulty products from the production line? What is the responsibility of the top management or the owners of the factory when such incidences take place? As they are the beneficiary when it comes to profit taking, logically they should be the one who should go to jail. The government must separate organizations and individuals when it comes to food laws infringement. While individuals who are proved to be adulterating the food callously ignoring the health dangers of the consumer could be punished by imprisonment, organizations must be monetarily punished to the maximum extent possible which can hit them where it hurts. The impact of jailing can have long term implications as less and less persons will opt for training in food technology because of such a "Damocles sword" hanging over their career!

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

SMALL SCALE FOOD PROCESSORS-UNCERTAIN FUTURE IN INDIA

The reputation of India as a lethargic, foot dragging mammoth, incapable of taking vital decisions in time or executing developmental projects with 100-500% time and cost overrun, is increasingly being felt world over. More importantly a sense of frustration and desperation is slowly creeping among the masses because of the paralysis visible in the government circles in spite of the vast potential the country has in scaling new heights and achieving unparalleled laurels. Take for instance the case of food quality and safety related administration in the country. The following excerpts from a recent report about the travails of the industry and the consumers in the food sector due to ill panned moves by the government to steamroll its callous policy on the country without anticipating its adverse impact, amply illustrate the above point.

Twenty-one Members of the Parliament from Tamil Nadu have signed a petition urging the Union Minister of Health and Family Welfare Ghulam Nabi Azad to address "shortcomings" in the Food Safety and Standards Act (FSA) 2006. The Act established the Food Safety and Standards Authority of India (FSSA) as a statutory body coming under the Health Ministry for laying down science-based standards for articles of food and regulating manufacturing, processing, distribution, sale and import of food. The petition was the result of a campaign undertaken by Tamil Nadu Foodgrains Merchants Association, which met all the 40 MPs from the State at New Delhi recently and highlighted the adverse impact the Act could have on farmers and small food business operators. Addressing a press conference in Madurai on Tuesday, association president S.P. Jeyapragasam said that rules and regulations of the FSA were heavily influenced by multinational companies and domestic corporates who dominated the 123-member committee formed to frame the standards under the Act. He also noted that this committee was dissolved by the Supreme Court on February 2011. Even M.S. Swaminathan, the Rajya Sabha MP known widely as the 'Father of the Green Revolution,' whom the delegation met in New Delhi, concurred with the traders' opinion and voiced his concern with the Union Health Minister. The Act, which replaced the Prevention of Food Adulteration Act, levied penalties in the range of Rs. 1 lakh to Rs. 10 lakh besides prescribing jail terms ranging between six months to 10 years. Further, it had retained the standards set in 1954 for most of agricultural food produce though farming practices and the environment had undergone a sea change since then. "While we welcome the intentions of the Act to provide quality and hygienic food to the public and coming down heavily on adulterated food, its rules and regulations are impractical. The Act was framed in 2006 but notified in 2011 and yet, the Government did not utilise the five intervening years to crate awareness among the business community." He also noted that Tamil Nadu was being considered as being in the forefront of implementing the Act by officials in New Delhi even as several States were yet to establish the offices for implementing agencies. Further, Mr. Jeyapragasam said, the standards of food produce would surely vary from region to region and sometimes within the region itself depending upon rains or lack of it, fixing one quality for all was not a practical move. The association also urged the Central Government to rectify the various "anomalies" in the Food Safety Act 2006.

No one doubts the intention of the policies and objectives of the Government agency concerned. However sheer callousness, shoddy drafting, lack of understanding about the dynamics of Indian food industry landscape, inebriated by the enormous power conferred on the agency, ill qualified people doing the job and the mindless insensitivity to the sufferings of the citizens have created a situation which may result in eventual collapse of the micro enterprises and small and medium scale food industries. What would be the consequences of such an eventuality? Probably people in Delhi have neither the time nor the inclination to think about such "mundane" things as they are more busy "handling" the various "scams" created during the last one decade!

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

ANARCHY IN FOOD SAFETY ENFORCEMENT-KARNATAKA'S INERTIA!

Karnataka seems to be over obsessed with the IT industry, relegating every thing else to the background. Otherwise why is that the required enabling infrastructure for implementation of the brand new food safety act of the Central Government is yet to be put in place?. Food Safety and Standards Authority of India (FSSAI) with a heavy bureaucratic, top heavy organization at Delhi seems to be sitting back happily after taking 5 years to enact the Act but no one at the state level has any idea as to how to go about fulfilling their obligations. While the old PFA is legally not valid any more to book food fraudsters, new dispensation is yet to take shape! In the mean time adulterators and peddlers of unsafe foods are having a field day. Look at the situation in Bangalore, proudly called Silicon Valley of India, as reported by the media recently.

The city is a veritable gastronome's paradise, serving up cuisines for every palate and pocket. At every corner, one can get a whiff of a favourite dish being cooked. The large clientele of these fast food joints, however, can never be sure if the food served is safe and prepared hygienically. And that is certainly a cause for worry. According to the Bruhat Bangalore Mahanagara Palike's (BBMP) modest estimate, there are around 25,000 food outlets, excluding pushcarts, tea stalls, roadside eateries and a small percentage of darshinis. However, this is just in the core area (old Bangalore Mahanagara Palike). With the city limits extending to around 800 sq. km, BBMP sources say there could be over one lakh food outlets. The BBMP's food inspectors are supposed to collect samples from the eateries and provision stores regularly and test them to ensure that they are safe and fit for human consumption. So, how often is the food from these outlets checked? Almost never, say BBMP sources. Why? Because there are only six food inspectors in the BBMP, with one invariably on VVIP duty.

Is it not a shame that the Karnataka Health and Family Welfare Service has not been able to issue the necessary guidelines on the implementation of the Food Safety and Standards Act so far? Such an inertia seems to be preventing the body from taking any action against retail outlets in the state selling unsafe, sub-standard and date-expired products. Recently, a leading shopping mall in the city was found to sell products, which were well past the expiry date. Prior to the Act, the food inspectors in Bangalore came under the purview of the Bruhat Bengaluru Mahanagara Palike (BBMP), the city's municipal corporation. Already GOI took more than 5 years to pass the FSSA Bill after taking it up in the year 2006. Besides even if the rules are framed and the state begins to implement the Act, the lack of food inspectors will continue to hamper its efficient execution. Currently, there are 6 food inspectors on deputation from the health department as BBMP has only 27 inspectors for food safety. Even by its own estimate the BBMP wants 40 inspectors from the state government to oversee its 100 wards but how is it possible to cover the entire sprawling city with such meager personnel resources is not clear. One gets the unavoidable impression that neither the state government nor the BBMP is serious about tackling the menace of food adulteration and it should not come as a surprise if Bangalore's "Silicon Valley" tag is replaced by "Capital of Unsafe Foods" within a short period of time!

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

THE NEW FOOD LAW IN INDIA-ARE THE STATES READY?

The new food safety and quality Act which is supposed to have come into effect from August 5, 2011, is projected as a panacea for all the woes consumer is facing vis-a-vis food adulteration and fraud. What is not realized is that no matter how powerful the Act, enacted by the Central Government, is, it has no chance of being effective unless the State administrative apparatus is geared to implement the same. Here is a classical example of what a well administered state can do, if it is sincere to preempt the activities of the food "criminals" who never miss a chance to exploit the weakness of the authorities to make a fast buck at the expense of the consumer.

'The next time you visit your favourite chai, pani puri or bhel puri stall, or any other small-time food seller, don't be surprised to see the vendors sport aprons and hand gloves. For, according to the new Food Safety Act, hawkers, food vendors and temporary stall owners must follow minimum standards of food safety or pay a maximum fine of Rs 1 lakh. The new Central Food Safety and Standard Act, 2006, replaces the existing Prevention of Food Adulteration Act; the State Food Safety Act came into effect in Maharashtra from August 5, 2011. With the implementation of the new rules, even vegetable or fruit sellers who use chemicals to ripen their products will be liable for punishment."

In sharp contrast look at the pitiable condition in a scam affected state like Karnataka which has not yet put in place an operative mechanism to punish the food safety violators under the new Central Act. It was amusing to read a recent news item implicating a premier Hyper Market in Bangalore which was selling date expired food products after super imposing a new expiry date and still getting away without even a warning because the local food authority could not take legal action in the absence of a corresponding state law!. To cap it the civic authority says it has only 8 food inspectors to monitor food safety for a population of more than half a million in the city! Do those sitting in the office of the FSS Authority of India realize this while talking big about its consumer safety program in the country? No chance!

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