The draft bill promises to be transparent. Yet, the Food Authority has a lot of discretion in this respect
On April 5, 2005 a group of ministers (gom), headed by the Union agriculture minister Sharad Pawar, cleared the draft of the Integrated Food Bill. The draft bill will now go to the union law ministry and then to the union cabinet for final approval. The Union ministry of food processing industry (mpfi), the nodal body for the new law, is expected to introduce it in the second half of the session of Parliament which resumes April 18.
Known as The Food Safety and Standards Bill, 2005, it aims to "to bring about a single statute relating to food and to lay down science-based standards for articles of food and regulate their manufacture, import, export, storage, distribution and sale, to ensure availability of safe and wholesome food for human consumption (including other matters relating thereto) and to establish in that behalf Food Safety and Standards Authority of India and for matters connected therewith or incidental thereto."
Originally the bill, open for public comment till February 15, also intended to repeal the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992. But this raised both official and civil society hackles. Arjun Singh, minister for human resource development, wrote to mpfi against repealing the Act; many organisations also protested. gom finally decided to only amend the Act.
In contrast, the proposed Food Safety and Standards Authority (fssa), the statuatory body to perform functions assigned under the new act, is lopsided in favour of bureaucrats. It will have 11 members plus a chairperson. Six will be joint secretaries from various ministries. Others include two representatives from state governments, one eminent food technologist or scientist, and a representative each from consumer groups and the food industry. It is an apex body. It will administer a large number of currently existing legislations dealing with highly technical issues related to overall food safety, but there is no representation from food testing laboratories, the medical profession, the Indian Standards Institution, independent experts and civil society bodies.
Moreover, ccfs is headed by the director general of health services. But for fssa, the law leaves the option open of appointing the chair either from "persons of eminence in the field of food science or from amongst the persons from administration who have been associated with the subject and is either holding or has held the position of not below the rank of Secretary". Surely a step backwards?
Of course, the draft bill does improve over the existing pfa. The issue of presence of pesticides residues, for instance, finds mention. In the draft bill, article 20, "General provisions as to articles of food", deals with "Insecticides, pesticides and veterinary drug residues". "No article of food shall contain insecticides, pesticides, veterinary drugs residues in excess of the tolerance limit prescribed under this Act and the rules and regulations made there under", reads the article. It is a step forward. But a small one, for the issue of Acceptable Daily Intake (adi) is not dealt with. The government, thus, is missing an opportunity to include health-based criteria within law. By making adi the basis of regulation governing food safety, the government could have legalised the concept, thus giving a boost to overall food safety.
There are other improvements, such as a clause on public disclosure. States subsection 4 of article 14 on the functions of fssa:
The Food Authority shall make it public without undue delay
the opinions of the scientific committee and the scientific panels immediately after adoption;
the annual declarations of interest made by members of the Food Authority, the chief executive officer, members of the advisory committee and members of the scientific committee and scientific panels, as well as the declarations of interest if any, made in relation to items on the agendas of meetings;
the results of its scientific studies; and
the annual report of its activities.
Considering very little information on various aspects of food safety is currently available in the public domain, this is a welcome legislative step.
But the very next subsection gives the Food Authority a lot of discretionary powers. Subsection 4 reads: "The Food Authority shall not disclose or cause to be disclosed to third parties confidential information that it receives for which confidential treatment has been requested and has been acceded, except for information which must be made public if circumstances so require, in order to protect public health."
Take action anyway
Another major improvement is the Section 17 (f) in the "general principals of food safety". In India, lack of scientific certainty is often used, by regulators as well as industry, as an excuse to not undertake any action or remedial steps. Now, Section 17 (f) states: "where, in any specific circumstance, on the basis of assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection may be adopted, pending further scientific information for a more comprehensive risk assessment." If supported by adequate implementation mechanisms, this clause can be a good legal aid to affected communities.
Similarly article 25 on "prohibition on placing unsafe food in market" is a big step forward. The section reads:
In determining whether any food is injurious to health, regard shall be had
not only to the probable immediate or short-term or long-term effects of that food on the health of a person consuming it, but also on subsequent generations;
to the probable cumulative toxic effects;
to the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers.
Supported by well-drafted rules the clause will have a huge impact on the overall issue of regulating food safety.
In legislation of this nature, the rules reveal the entire legal framework. But the rules for the draft bill have not yet been made public. Many aspects not dealt with in the draft bill, or merely touched upon, are often detailed out in the rules, as are the implementation mechanisms. Thus without them, the entire scope of the legislation will not be clear. By coming out with just the draft bill, the government has only done a partial job.
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