The Food Safety and Standards Authority of India (“FSSAI”) amended the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 (“Regulations”)1 in August 2020 to incorporate menu labelling requirements, which are to be followed by food service establishments (“Amendment”).2 The Amendment added regulations dealing with ‘Display of information in food service establishments’ (“FSEs”).
The FSSAI has highlighted the benefits of providing such information to consumers, such as informed food choices, portion control, and promotion of the healthcare regime. It also helps restaurants, specifically quick service restaurants (“QSR”), gain a competitive advantage by casting their establishment as a ‘healthy place to eat’ to consumers.3
The Amendment applies to FSEs that either possess a central license or have outlets at 10 or more locations and extends to hotels, restaurants, clubs, canteens, caterers, cloud kitchens and dhabas that satisfy these requirements. Moreover, e-commerce food business operators, on satisfaction of either of the above-mentioned criteria, are included under the purview of the Regulations. In addition, information on these platforms can be directly sourced from the owners and updated on the platforms, or the platforms can provide a feature where respective enterprises can do so.
However, FSEs operating for less than 60 days in a calendar year, as well as mid-day meal caterers/canteens (as they operate under a centrally sponsored scheme for a specific group where food is provided based on a pre-determined calorific value), are exempted from the scope of this Amendment.
The information to be displayed for consumers is meant to be exhibited in a two-fold manner.
This information is supposed to be displayed by FSEs on food menu cards or menu boards, which include:
(i) The calorific value of the food items: Akin to requirements under US laws, the Amendment requires menu cards to promote the healthcare of an individual by stating “an average active adult requires 2,000 kcal energy per day. However, calorie needs may vary”.
(ii) Allergen-related information: The menu card should provide information regarding the presence of certain allergen items through clear symbols. These ingredients as provided in the Regulations are cereals containing gluten, crustacean, milk, egg, fish, peanuts, tree nuts, soybeans, and the products which are made from such ingredients. Such information would also be required to be provided in the event of sulphite concentrations of 10mg/kg or more.
(iii) Logos for vegetarian and non-vegetarian items: The specific logo for vegetarian and non-vegetarian items as provided under the Regulations will need to appear in front of the name of the dish, as applicable.
It is important to note that these declarations need not be made for condiments that are provided free of charge, and for specially modified meals provided at the request of the customer.
FSEs are also mandated to provide additional information to the customers at their request, via booklets, websites, or digital applications. Such information can be categorised under the following heads:
(i) Nutritional Information: As provided under regulation 5(3) of the Regulations, the consumer is obligated to be informed about the quantity of various nutrients present in the food items such as sugars, fats, added sugars, dietary fibres, protein, carbohydrate, or any other nutrient. Deviation of up to 25 per cent in the information declared is permitted. For the calculation of such nutritive value, two methods are primarily provided, namely (a) laboratory testing and nutrient analysis method, and (b) manual calculation of nutritive value method. The latter refers to the calculation of nutritional value by utilising the nutritive/calorific value of each ingredient. Such value must be scientifically backed, and the documentation of all scientific sources utilised must be maintained.
(ii) Declaration of specific ingredients: As highlighted under Schedule-II of the Regulations, any artificial sweeteners, monosodium glutamate, caffeine etc., if utilised, would have to be declared.
(iii) Information on organic products or ingredients: Complete and accurate organic status of the ingredient or food used must be provided by utilising FSSAI’s organic logo.
Any derogation of the menu labelling requirement will initially attract a penalty in the form of an improvement notice from a designated officer. On non-observance of the directives provided under the improvement notice, FSE may have their licenses suspended or cancelled, as the case may be.
The Amendment is a welcome change to the food safety and standards regime as it provides consumers with more autonomy to make informed choices with regard to food consumption in restaurants and QSRs. The inclusion of such provision indicates the intention of the FSSAI to foster an environment that advocates for nutritive food choices and attempts to amalgamate healthcare and nutrition. Establishments with standardised recipes and menu items may find it less demanding to comply with the declaration of additional information required by employing methods such as laboratory testing and nutrient analysis. Establishments with dynamic menu items may have to utilise greater resources or resort to other methods such as manual calculation. In effect, this will require such establishments to engage with top healthcare law firms to provide legal compliance services which will increase their operational costs.
Beyond its benefits, the ambiguity in its enforceability still prevails. First, interestingly, the term ‘food service establishment’ has been capitalised, but not yet defined under the Food Safety and Standards Act, 2006, Regulations or the Amendment. This creates a lacuna in the law which is open to interpretation with regards to implementation of the Amendment. To that extent, top life sciences law firms have concluded that the application of the Amendment is limited to a ‘food service establishment’ that either has a central license or has outlets at 10 or more locations. Second, in 2018, FSSAI had decided to divide the Regulations into two different regulations; the Food Safety and Standards (Packaging) Regulations, 20184; and the Food Safety and Standards (Labelling and Display) Regulations, 2020.5 While this division had been affected by the FSSAI to implement national labelling as a robust and effective process to be followed, the Amendment has been implemented to amend the old law, i.e., the Regulations, which creates a conundrum in the interpretation and the application of the law. While it has been more than two years since the effective date of implementation of the Amendment, no clarifications pertaining to the issue have been provided by the FSSAI yet.
[1] Food Safety and Standards (Packaging and Labelling) Regulations, 2011 accessed at: https://www.fssai.gov.in/upload/uploadfiles/files/Packaging_Labelling_Regulations.pdf. [2] Food Safety and Standards (Packaging and Labelling) First Amendment Regulations, 2020 accessed at: https://fssai.gov.in/upload/notifications/2020/08/5f4611c4eca96Gazette_Notification_Information_Display_Food_26_08_2020.pdf. [3] Guidance Note on Display of Information in Food Service Establishments (Menu Labelling), accessed at: https://www.fssai.gov.in/upload/uploadfiles/files/Guidance_Note_Labelling_23_02_2022.pdf. [4] Food Safety and Standards (Packaging) Regulations, 2018 accessed at: https://www.fssai.gov.in/upload/uploadfiles/files/Gazette_Notification_Packaging_03_01_2019.pdf. [5] Food Safety and Standards (Labelling and Display) Regulations, 2020 accessed at: https://www.fssai.gov.in/upload/uploadfiles/files/Compendium_Labelling_Display_23_09_2021.pdf.
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