HC judgment on food products opens a can of worms

Is it the duty and responsibility of the government to prevent the sale of substandard food items in the market? Or as a consumer, is it one’s own choice and responsibility to ensure that one does not buy substandard food items, which might very well be available in the market?

Is it legal to sell a food product even if it is substandard as long as it does not pose a serious health hazard?

A recent judgment passed by the Kerala High Court, setting aside a ban imposed by the Commissioner of Food Safety on the manufacture, sale, and distribution of the Nirapara brand of chilly, turmeric, and coriander powders, as these contain extraneous starch and thus do not conform to the standards, seems to have opened a can of worms.

Commissioner T.V. Anupama issued the ban order on the Nirapara brand of spices, manufactured by KKR Food Products, Kalady, on September 3, under relevant provisions of the Food Safety and Standards Act 2006 (FSSA) to protect the interests of consumers. The ban was imposed, as after several notices sent under Section 46 (4) of the FSSA, adjudications filed and fines imposed from Rs.10,000 to Rs.5 lakh, the manufacturer continued to sell the adulterated product.

Since September 2013, at least 34 cases of the same nature had been registered, 25 of which are currently pending before adjudicators in different districts in the State.

In the petition filed by the manufacturers, the High Court, however, chose to focus on the question, “whether there were any health risks warranting immediate action” (ban). It held the Commissioner can ban the food item only if there exists a health risk and if the said item is unfit for human consumption.

The judgment says that a “substandard item can also be sold, provided the consumer knows what is contained in it” and that “there is no provision to prohibit the manufacture or sale of substandard food products which are safe for human consumption”.

It says that “the court is of the view that there are clear findings that the petitioner’s products are substandard” but that in future in such cases, the Commissioner is free to take measures to alert the public about it or to cancel the licence under Section 32 (3) of the FSSA.