Your goose is cooked

Your goose is cooked

In the monsoon session of parliament, beginning July 2006, the government proposes to table the Food Safety and Standards Bill (fssb), which it says will assure food safety for all. The bill will replace the present Prevention of Food Adulteration (pfa) Act, the Essential Commodities Act and repeal other food-related legislations at the state level. While the new bill has been prompted by the need to reform legislation for industry's convenience and growth, it may have safety and health implications on people. Delivery has been laboured and contested. But the chosen midwife -- the industry-friendly ministry of food processing industries -- has delivered a product that is currently embroiled in a bitter battle between the ministry of food processing industries, supporters of the bill, and the ministry of health and family welfare, the custodian of food safety in the country. But that is just shadow boxing. The real fight is about industry's control over the business of food regulation by further diluting the already weak provisions that protect the health of consumer. If the new law is passed, industry will have won the war, because it wrote the first draft and all that has followed is tinkering.

Does birth matter?
The idea of an "integrated food law" emanated from a committee headed by industrialist Nusli Wadia, with two other industry members, Ratan Tata and A C Mathiah. This committee, set up in 1998 by the National Democratic Alliance government, recommended framing a law that would avoid the existing multiplicity of legislations and agencies in the business of food. In the budget of 2002, the then finance minister Yashwant Sinha announced that the prime minister had set up a group of ministers, under the Union minister of law to prepare a modern integrated food law and related regulations. In the very first meeting it was decided to hand over the task of formulating the draft law to the industry-friendly ministry of food processing industries. One of the first set of recommendations was prepared by the Confederation of Indian Industry (cii), a group of powerful industries.

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The present United Progressive Alliance government decided to take forward the food safety agenda, without any changes. The industry-prepared draft was worked upon. And the battle for consumer safety was lost.

The preamble to the act says the purpose of the bill is "for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import". The industrial agenda is flagged by the emphasis on science-based standards, when most international food safety related legislation emphasises the need for health-based standards. The reason is simple: "good science' cannot be defined, while good health is a societal value. But industry has always found safety in science's uncertainty. The bill is clear in its intentions: the right to health must be weakened.

Fundamentally fatal bill
The bill works hard to convolute, compromise and obfuscate the protection to consumer safety and health. It weakens the existing weak provisions of the pfa Act, with expertise and legalistic sophistication. The standing committee on agriculture, which submitted its report to parliament on the bill, has made many suggestions (see box: Dissenting voice). But the core elements of the bill, which make it fundamentally fatal to health and safety, have been insufficiently addressed. A careful reading of the proposed bill reveals that it does little to protect the safety and health of consumers or the interests of small producers. Besides, it does nothing to improve the shortcomings of the current food regulations and enforcement.

Not protecting health
The bill has weakened the definition of 'unsafe' food. First, it defines "contaminant as anything which is not added to food but is already present because of production-related causes (including operations carried out in crop husbandry, animal husbandry, veterinary medicine or as a result of environmental contamination). In other words, pesticide residues in soft drinks, or hormones or antibiotics in milk are all defined as contaminants. So far so good.

But then it adds another term "extraneous matter", which has the same definition as contaminant, except that this matter does not render the food unsafe. In other words, pesticides that are unintentionally present in soft drinks could be contaminants or they could be extraneous matter, because companies say that these do not make food unsafe.

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This is further connected to another ambiguous definition for unsafe food. The definition does not refer to contaminants. Simply put, it means that even if food contains contaminants, it is not defined as unsafe.

Furthermore, interpretation is now fraught with confusion. Food companies can argue that what has been found in their product is not a contaminant but extraneous matter and so their product is not unsafe. All this will make consumers run between the lines to prove what is unsafe, what is contaminated, what is injurious to health and what is just extraneous matter and not unsafe.

Second, the bill does not say that food is unsafe if it does not meet stipulated standards The pfa Act says that food is adulterated if the quality or the purity of the product falls below prescribed standards. But the new bill only says that such food will be sub-standard, but not unsafe. It mentions that no article of food can contain contaminants in excess of standards, but does not say that if present, this will make food unsafe. It takes the same view on food containing pesticides, or antibiotic or microbiological elements in excess of standards.

The bottom line is food should have no contaminants at all. Introducing definitional quibbles about what a contaminant is and what "extraneous matter" is, is a way of obfuscating this fact. There are no penalties for food with contaminants either. And incidentally, it is called the food safety bill.

Not protecting the small

Interests of small food manufacturers and vendors or even farmers, are clearly not protected. The food business is multi-layered. The chain encompasses small and big farmers, small household level operations, manufacturers, hawkers and vendors. They will have to compete with the growing clout of the organised business and multinational companies, now setting up shop to process and manufacture food in factories. The bill has been constructed carefully to do the following:

• It dilutes the provisions that would regulate quality and safety of large producers by weakening the provisions to recall food found unsafe; providing for penalties that are uniform across categories of manufacturers; and by giving the big companies an 'improvement' clause -- time to fix things.

• Simultaneously, it brings into its ambit primary food so that all problems of quality are blamed on the raw material used in the manufacture and not on processed food.

• It also includes food retailers, hawkers, itinerant vendors and temporary stallholders. This was cii's explicit demand, which has recorded that this category of merchants must be brought into the legal net because they are the real problem.

• It strengthens penalties for small producers. It also keeps intact the regulatory framework of pfa Act, which will tighten the controls on petty manufacturers and even hawkers.

Escape clauses

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In the food manufacturing system controlled by large companies, a recall system is imperative when food does not meet specified norms. The uk has it, which is why it could ask Coca-Cola to recall over 500,000 bottles of water that contained bromate in excess of norms. But the new bill gives with one hand and takes away with the other. Section 18.g states: "Where any food fails to comply with food safety requirements is part of batch, lot or consignment...it shall be presumed until the contrary is proved, that all of the food in that batch, lot or consignment fails to comply with those requirements" and so it can be recalled. In section 26.5 says: "Where any food which is unsafe is part of a batch, lot or consignment of food...it shall be presumed that all the food in that batch, lot or consignment is also unsafe following a detailed assessment within a specified time, it is found that there is no evidence that the rest of the batch, lot or consignment is unsafe."

Penalties for the weak
If there are different categories of food businesses in the country, then penalties should be graded in a way that each group is affected equally. But clearly Indian policymakers do not think this is necessary. The bill specifies penalties between Rs 1 to 10 lakh, depending on the nature of the offence. It defines food-related offences -- like generally not of quality food, sub-standard food, misbranded food and penalty for misleading advertisement. There is no specific penalty for unsafe food or food with contaminants. Moreover, considering the range of fines provided, it would be a deterrent for the small, not the big players. Japan, for instance, provides for penalties based on turnover, which provides a level playing field.

There is a provision under section 69 (power to compound offences), which empowers food inspectors to impose fine of up to Rs 1 lakh on petty manufacturers, hawkers, retailers etc. if they have "reasonable belief" that an offence has been committed. This means unbridled power for inspectors and terror for vendors, hawkers and small manufacturers.

In contrast, provisions for powerful companies are riddled with a space-size loophole. Under section 66, the bill states that action cannot be taken against people if they prove that an offence was committed without their knowledge or that they had exercised due diligence to prevent it.

Re-designing governance for nothing
One of the most fatal provisions of the bill is regarding governance and administrative design. It puts in place a highly centralised and closed structure, accountable to none. The bill proposes a Food Safety and Standards Authority as the statutory body to perform various functions assigned under the act. The authority includes seven new positions for bureaucrats, representing different departments, thus replacing the Central Committee for Food Standards (ccfs), which is mandated under the pfa Act to oversee decisions on food safety, with a bureaucracy armed with officials.

The current system needs reform. It needs independent and credible expertise for standard-making on health and food-science. But the bill compounds the weakness of the current decision-making structure. In the present system, expertise is externally sourced, through various committees of the ccfs like the food additives sub-committee and the pesticide residue sub-committee. The Bureau of Indian Standards, which functions under the ministry of consumer affairs, was kept out of the loop and will remain out of it if the new law is passed. Outsourcing of expertise will continue.

Worldwide, food safety authorities have internal research set-ups, and the scientific and technical skills to drive the standard development process well. External experts, including consumer organisations, ngos, health experts and lab experts are brought in through specialised committees to add value to the internal work and improve it further. But industry representation is kept to the minimum to avoid conflict of interests.

Super-centralisation
Under the present regime, the primary responsibility for enforcement and monitoring lies with state governments. Unfortunately, they do not have the capacity to carry out the job. A crucial weakness is the lack of specialised laboratories. With this bill government had the opportunity to rectify the problem but it has failed.

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Not only has it failed in this respect, it has compounded matters by not taking into account the fact that the proposed bill will replace all state and central legislation dealing with food. Many of the state laws are not related to only food quality and adulteration. They are also related to price, and availability and distribution of food. Some of them were enacted to ensure availability of food at affordable prices for the poor. But it does not address issues of food availability, pricing, monopoly or distribution.

Also, the bill does not deal with what the role of the bureaucracy, which deals not just with food but also drugs and cosmetics, will be. In the new bill, food and drug inspectors have been named food officials, but it does not say if they will monitor drugs and cosmetics.

For the few
The bill intends to combine separate pieces of food-related legislation under one broad law. And it is being done for the convenience of a few. While industry may be looking forward to the bill being passed in parliament without a hue and cry, the fact remains that it will neither improve the process of setting standards, nor improve the mechanism of ensuring food safety, especially in a world in which contaminants are proliferating. This is a bill without a vision on either health or livelihoods. In the end, it could be bad for business as well. 12jav.net12jav.net