FSSAI’s new labelling and display regulations –  A bird’s-eye view

Introduction

1. The Food Safety and Standards Authority of India (FSSAI) has come up with the new Food Safety and Standards (Labelling and Display) Regulations, 20201 (the Regulations) altering the landscape of food labelling regulations in the country. The labelling requirements under the erstwhile Food Safety and Standards (Packaging and Labelling) Regulations, 20112 have been comprehensively revised putting an end to many conundrums created since its inception. The new regulations emphasise on enabling consumers to make informed choices about their food purchases not only in the sphere of packaged food products but also on purchases from restaurants and e-commerce platforms. The new regime is set to be implemented from December 2021 except for a few provisions which are expected to be implemented a month later i.e. from January 2022.
2. The FSSAI under the new Regulations has addressed many gaps in the erstwhile Food Safety and Standards (Packaging and Labelling) Regulations, 2011. It has quite generously done away with several redundant statutory declarations in the Principal Display Panel (PDP) of food packages. Some of these statutory declarations to be given in rectangular boxes in specific font size have always bothered the artwork designers to adjust all mandatory declarations within the PDP without compromising the aesthetics of their artwork. These declarations were troublesome especially when multiple products were assorted in one pack and when each product would be required to provide such declarations in large fonts creating space constraints on the PDP. Furthermore, by way of these Regulations, the FSSAI has reconciled its labelling laws with that in the Legal Metrology (Packaged Commodities) Rules, 20113 (the LMPC Rules) which operate in general domain of packaged products avoiding any room for ambiguity. In this article an attempt is made to highlight some of the major changes brought under these Regulations.

New regime of food labelling

3. The present Regulations come with a host of new requirements viz. mandatory declaration of allergen information, per serve contribution of nutrients to recommended dietary allowances (RDA), expiry date (by making best before declaration optional), new logo and symbols for non-veg and food items not meant for human consumption, etc. Under the new Regulations, even e-commerce platforms are required to provide for mandatory labelling of food products offered for sale through their platform with certain exceptions. Further the new regime has also brought restaurant operators with large chain of networks within its scope. An analysis of these new changes are narrated below.

E-commerce entities selling food products like Amazon, Flipkart, BigBasket, etc., brought within the scope

4. Under the new Regulations when a food product is sold over an e-commerce platform or any other direct selling means, all mandatory declarations in the label are to be provided to consumers through appropriate means before sale except certain variable declarations like batch number/lot number, best before, use by date, expiry date and date of manufacturing/packing.
5. This change was more or less expected as similar amendment putting onus on e-commerce entities to provide labelling information was implemented earlier in the LMPC Rules from January 2018 [vide GSR 629(E) dated 23-06-2017]. By virtue of the new Regulations, now e-commerce portals would be additionally required to ensure that labels fulfilling the requirements under the food regulations are posted or shown on their portals prior to a seller offering his food products for sale online.
6. The Regulations, however, do not prescribe a specific mode of display or insist that these declarations are required to be separately provided in the portal but uses the words “provided to the consumer through appropriate means”. Therefore, it is likely that e-commerce portals will be able to cover this labelling requirement by posting pictures of all sides of the food packages on their portal so that a consumer could verify all sides of the food package online and review the statutory declarations given on the pack prior to purchase. This would ensure that all labelling under the LMPC Rules and the Regulations are covered by e-commerce platform simultaneously upon placing products for online sale.
7. However, unlike in the LMPC Rules, the Regulations does not provide for exemption of liability to e-commerce platforms in case of incorrect declarations or any omissions in providing mandatory declarations by a seller. These platforms therefore may have to look for safe harbor provisions provided for online market place under Section 79 of the Information Technology Act, 20004 by ensuring satisfaction of conditions mentioned therein.

Name of the food to be provided on the front panel of the pack and not just brand name or trademarks alone

8. As a departure from the established practice where statutory declarations were required to be provided only in the PDP, the FSSAI has stepped in this time prescribing the manner of declaration of product name at the front panel of the pack. The new Regulations prescribe that the name of the food which indicates true nature of the food or if food is specified by certain essential composition under any regulations made under the Food Safety and Standards Act, 20065, then such name shall be given on the front of the pack.

9. The erstwhile labelling law did not prescribe such condition which enabled the manufacturers/brand owners to provide attractive brand names or fancy trade names or trademarks of the product alone at the front panel of the pack rather than mentioning the common/generic name of the product. This practice we could often see in packages of cookies, confectionaries, juices, etc. The new change was introduced to avoid any ambiguity that can be caused by use of fancy brand name alone in the front panel. The FSSAI has earlier under the Food Safety and Standards (Advertising and Claims) Regulations, 20186 (the Advertising Regulations) mandated to give disclaimers at the front panel when brand name or trade mark does not represent true nature of the product.

Allergen details to be provided on the label

10. The FSSAI in a move to bolster its commitment to provide safe food to all class of consumers, has now mandated food business operators (FBOs) to provide allergen information in the PDP if certain foods or ingredients like peanuts, tree nuts, cereals containing gluten, soybeans, milk, egg, fish, etc., are used during preparation of the product. The Regulations also mandate to provide separate allergen warning even when ingredients present in the food could cause cross-contamination. However, allergen details are not required for oils derived from allergy causing ingredients and even in the case of raw agricultural commodities.
11. While the provision for allergen information is new to the labelling regulations, the erstwhile labelling regulations have had certain provisions providing for warnings in case of use of certain ingredients in the preparation of food. For example, in packages with food articles containing low gluten, it is mandatory to provide a declaration that food contains low gluten and a warning was required to be given on the label that this may pose risk for those with celiac disease. Apart from the general labelling domain, such warning could be also seen in the Food Safety and Standards (Fortification of Foods) Regulations, 20187 (the Fortification Regulations) which mandated to provide warnings if food is fortified with iron. Furthermore, it is mandatory to provide for any contraindication in the label for foods covered under the Food Safety and Standards (Health Supplements, Nutraceuticals, Food for Special Dietary Use, Food for Special Medical Purpose, Functional Food and Novel Food) Regulations, 20168 (the Nutraceuticals Regulations). However, these warnings were limited to certain category of foods and were not strictly related to the capability of ingredients to cause food allergies in general. Further, most of the ingredients which now qualify for allergen information under the Regulations were not considered for these contraindication warnings. Thus, the erstwhile regime and the regulations with specific warnings to be given on certain food package were not capable of extending benefits that an allergen declaration could provide.
12. The move to provide for specific allergen information seems to be a decision aligning with the European and US standards of labelling. This was a much awaited inclusion as according to the National Health Portal ninety per cent of food allergies are caused by ingredients such as peanuts, tree nuts, wheat, milk, eggs, fish and soybeans. Pursuant to the new change, if FBOs want to use any of the aforesaid food items as ingredients then they will have to provide allergen information on the label. The new Regulations are therefore expected to offer some relief for those at risk of allergies.

 Contribution of nutrients used in the product to RDA to be given with nutritional information

14. The new Regulations prescribe that an FBO should provide for per serve percentage of contribution to RDA of energy, fat, sugar and salt. The FSSAI has also given per day requirement of these constituents and mandates FBOs to calculate percentage of contribution to RDA on the basis of 2000 kcal energy, 67 gm total fat, 22 gm saturated fat, 2 gm trans fat, 50 gm added sugar and 2000 mg of sodium (5 gm salt). The serving or serve size referred here means the amount of food customarily consumed per eating occasion or as defined by an FBO in the label. Consequently, from the end of this year, consumers can expect to see an additional column in the nutritional information giving for recommended per day intake of nutrients.
15. Earlier under the Advertising Regulations, the FSSAI has restricted FBOs from making health or nutrient claims against a constituent of the food unless the food could be categorised at least as a source of such constituents or low in such constituents as per the parameters laid down in Schedule I to the Advertising Regulations. It also mandated for a statement of quantity of constituent that is subject-matter of the claim given on the label. The present changes to labelling laws are more or less in tune with the Advertising Regulations and these changes certainly helps consumers to understand how much of particular nutrient or constituent of food, one is supposed to consume in a single day or is required to consume in a day. This would assist consumers to maintain healthy eating habits.

Introduction of new logos for non-veg food and food items not meant for human consumption  

15. The old logo showing non-veg food items with square having brown colour filled circle is now replaced under the new Regulations with brown coloured triangle inside a square with brown outline. However, for veg logo there is no change from the old regulations. This change will help the consumers with colour blindness as the erstwhile logo offered no apparent distinction apart from the colour difference. Further to this, the new change aids in providing a conspicuous distinction by helping the consumers to recognise commodity type even during a hasty purchase.
16. In addition to the above, the FSSAI has also introduced a new symbol of black colour cross inside a square of black outline to be shown in food materials sold in retail but not meant for human consumption. Therefore, now it is mandatory for packages containing ghee for diya or oil to be used for worship or pet foods to use this symbol. The new logo helps consumer to readily identify the nature of the commodity without reading disclaimers on the package and could help consumers in rural India and especially those who face difficulties in reading declarations given in English or in minor fonts.

Date of manufacture and time to be mentioned in meals served in Airlines/Railways and name of the brand owner, expiry date to be declared in packaged foods

Labelling of packed meals

17. The new Regulations require packed meals served in airlines, railways and mobile catering units to mention date of manufacture and time. In addition to this, packed meals are required to also contain information relating to allergens, veg/non-veg logo and to provide for certain warnings related to food ingredients as mandated under Schedule 2 to the Regulations. For example, if monosodium glutamate is used in preparation of the food, then it shall be provided in label in the prescribed format that food contains monosodium glutamate and a warning also needs to be provided to the effect that the food is not suitable for infants and pregnant women.

Brand owners details made mandatory in packaged food

18. The FSSAI has made it mandatory in packaged foods to declare name and complete address of brand owner. Earlier, such declaration on label was applicable only for manufacturers, packers, bottlers and importers. Under the erstwhile regime, a brand owner manufacturing through a contract manufacturer or contract packer had the opportunity to avoid mentioning his name and address on the package.
19. This change may not have much impact as in practice all reputed brands are providing their name and address on the label as marketer of their product. Such declaration is integral from a marketing perspective and for correct product identification. However, it is a right move by the FSSAI to address this gap in the earlier Regulations as it offered a chance to those who wants to shy away from consumer complaints and regulatory actions by keeping silence about their brand ownership on the label. The lack of details of brand owner in label would obviously guide the consumers and regulators to contract manufacturers with theirs claims and notices at the first instance enabling brand owners to hide behind their contractors.
20. The FSSAI has also addressed the problem of possible space constraints in the PDP that can arise by virtue of providing details of brand owners along with that of manufacturers and packers. In such cases, an FBO can avail exemption from providing their complete address on the label by furnishing the same in Barcode or Global Trade Item Number (GTIN). The name of the brand owner however is required to be mentioned in the label.

Expiry date to be declared and best before alone will not suffice

21. Another major change under the Regulations is the mandatory provision for providing expiry date or use by date. It was a prevalent practice in the market to provide best before dates on the food packages rather than stating the expiry date. This practice was followed on the basis that the product may still be safe to consume after the best before date though its quality may have diminished. However, the best before declarations alone in strict sense fail to provide any clarity on when the food would turn unsafe for consumption. Although, a prudent consumer would never assume the food to be safe perpetually, the best before dates alone in food packages could be mooted as wrong indicators of such assurance. The new Regulations has put an end to this age old practice and now best before can be provided only as an additional or optional information.
22. This new mandate would now require FBOs to think of giving two different dates for best before and expiry, former would mean that a consumer could consume the product safely after such period and later would signify that food is not safe to consume after the given date. Since marketability of the product is affected once the food passes the best before date, it is likely that at least some FBOs would prefer providing expiry date alone in the package. If FBOs intend to increase shelf life by giving longer expiry dates, then it would also need to be mindful that the quality of their product should remain intact till the expiry date, as a regulator could pick their product for analysis any time before the given date and the product is expected to meet all standards and parameters under the Food Safety Standards Act, 2006 and the Regulations issued under it till such date. Hence from a regulatory perspective, it is better to have both expiry and best before dates on the package as any fluctuations in standards could be explained once the product has passed the best before date.

Restaurants to give calorific value, allergen information etc., in the menu cards

23. The FSSAI has brought most of the prominent food chains operating in the country like McDonalds, Starbucks, Dominos, etc., within the purview of labelling regime. The Regulations stipulate that the food service establishments covered under the central licence (typically when operating in multiple States) or having outlets at 10 or more locations are now required to mention calorific value against food items displayed on the menu cards or boards or booklets in kcal per serving. Also, they have to display clearly and prominently an informative statement to the effect that “An average active adult requires 2000 kcal energy per day, however, calorific needs may vary”.
24. In addition to the above, these restaurants would have to provide details of allergens, veg/non-veg logo, nutritional information and certain warnings as specified in Schedule 2 to the Regulations. Event caterers, food service premises that operate for less than 60 days in a calendar year are exempted from following the requirements under the Regulations.
25. The e-commerce food business operators like Swiggy, Zomato, UberEats, etc., are required to get mandatory labelling information from the applicable restaurants and publish it in their portal. These Regulations would be implemented from 1-1-2022.
26. In fact, the FSSAI has brought similar changes in the erstwhile regime by way of the Food Safety and Standards (Packaging and Labelling) First Amendment Regulations, 20209 published on 21-8-2020. These changes were to be implemented w.e.f. 1-1-2022 even under the erstwhile regime. Therefore, strictly this inclusion of restaurant chains cannot be said to be a new introduction.

Labelling of wholesale, industrial and institutional packs

27. The new Regulations also prescribe for labelling of non-retail packs like packs meant for wholesale, industrial and institutional distribution. The erstwhile labelling regulations did not offer much clarity on labelling of these packs although there were certain guidelines issued for labelling of wholesale packs during import of food products vide advisory dated 23-3-2012 bearing Reference No. 1-7/FSSAI/T/2010 (Part J) and the order dated 9-8-2016 bearing Reference No. 1-1570/FSSAI/Imports/2015. However, these advisories/orders were related to food import clearance process and therefore were not applicable to food products manufactured and distributed in the domestic market. The FBOs therefore used to provide only three mandatory declarations (applicable for all packaged products) under Rule 24 of the LMPC Rules on wholesale packs.
28. As per the new Regulations, the FSSAI has prescribed following eight declarations to be given on all non-retail packs viz.–

(i) name of the food;

(ii) net quantity;

(iii) FSSAI logo and licence number;

(iv) date marking;

(v) lot number;

(vi) name and address of the brand owner, manufacturer or packer;

(vii) the country of origin (if applicable); and

(viii) a statement mentioning that container is not for retail sale.

The declarations regarding – (i) list of ingredients; (ii) veg/non-veg logo; and (iii) nutritional information are to be provided in the non-retail container unless such information is provided in an accompanying document. The Regulations also provide that an FBO could claim exemption from making certain declarations viz. address of brand owner, licence number, etc. if those are embedded in barcode or GTIN provided in the label.

Labelling of packaged food additives, fortified and organic food logo

29. The present Regulations have a separate chapter providing for certain additional labelling requirements for packages containing food additives. The packages containing additives are required to follow general labelling as stipulated for other foods with the exception of providing nutritional information. In addition to general declarations applicable to all foods, these packages will have to provide following declarations viz. name of the food additive, a declaration to the effect that “for use in food”, in case of mixtures, FBOs have to declare true indication of the nature of flavour with generic expression of flavour or flavouring. The generic expression is also required to be qualified by words natural, nature-identical, artificial or combination of these words, as appropriate.

30. The Regulations have also incorporated logo to be given in the label for fortified and organic food. These logos were made mandatory even otherwise under Regulation 7(2) of the Fortification Regulations and Regulation 5 of the Food Safety and Standards (Organic Foods) Regulations, 2017 and as such this is not a new requirement.

 Conclusion

32. While FSSAI has revised the Regulations comprehensively and has also addressed many gaps in the previous regime, it could have, in my opinion, done a more comprehensive review bringing together all labelling requirements prescribed under the various regulations at one place. For example, certain specific declarations are required to be provided on the label not covered under the general labelling regime viz. category of proprietary food as mandated by the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 201110, warnings required for people with Thalassemia as required under the Fortification Regulations and other host of labelling to be done under the Nutraceuticals Regulations, the Advertising Regulations, the Food Safety and Standards (Alcoholic Beverages) Regulations, 2018,11 If these labelling requirements were brought under one roof, it could have offered a one stop solution for all labelling concerns of FBOs and an easy reference point. This could have helped FBOs not to miss any labelling requirements for the reason being scattered across so many regulations issued from time to time under the Food Safety and Standards Act, 2006. I earnestly hope that the FSSAI would consider addressing this issue in near future.
33. The host of changes made to the labelling regime now require FBOs to revisit their existing scheme of labeling of packaged food products. Probably a task which requires sufficient time as FBOs generally keep a tailor-made software to keep a check and to verify the statutory declarations in the PDP. These softwares are usually made based on joint inputs from experts, food technologists, external counsel and in-house teams like legal, regulatory, operations, food standards, etc. It is expected that the December deadline for implementation is sufficient for FBOs to put revised labels on market. Some major brands are likely to hit the market with revised labels even before this deadline.
34. The labels being the main link of communication between manufacturers and consumers, these Regulations overall could be termed as consumer friendly and its scheme is certainly aimed at giving sufficient information to the consumers to make informed and healthy choices promoting good eating habits. We need to see if these changes in the labelling regulations necessitate FBOs to adapt their business model in accordance with the new regime. In my view, the impact of new changes can go far beyond mere changes in labelling of food packages to serious operational, financial and marketing concerns. For example providing allergen information, additional warnings, RDA details, calorific value, etc., on the package could make consumers more conscious and may result in restrictive purchases or may compel them to search for alternative products. An adverse impact on consumer psychology about one’s product in this competitive environment can compel the FBOs to rethink on their existing operational and marketing strategies. It could even compel FBOs to think of using alternative ingredients for food preparation which may have impact the costing and consequently pricing of the product. Therefore, we need to wait and see how these changes make an impact on FBOs and consumers.

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*Practicing Advocate and an expert in food laws. LLM in International Business Laws from University College, London. Currently on retainer with Mulla & Mulla & Craigie Blunt & Caroe. Author can be reached at sandeep.sreekumar@hotmail.com

1 The Food Safety and Standards (Labelling and Display) Regulations, 2020. <http://www.scconline.com/DocumentLink/53P6iNDJ>.

2 The Food Safety and Standards (Packaging and Labelling) Regulations, 2011. <http://www.scconline.com/DocumentLink/9v2N6K68>.

3 The Metrology (Packaged Commodities) Rules, 2011. <http://www.scconline.com/DocumentLink/4B50X7Xh>.

4 The Information Technology Act, 2000. <http://www.scconline.com/DocumentLink/LXbwaE8i>.

5 The Food Safety and Standards Act, 2006. <http://www.scconline.com/DocumentLink/4B50X7Xh>.

6 The Food Safety and Standards (Advertising and Claims) Regulations, 2018. <http://www.scconline.com/DocumentLink/C09H002N>.

7 The Food Safety and Standards (Fortification of Foods) Regulations, 2018. <http://www.scconline.com/DocumentLink/Pw5H5P3a>.

8 The Food Safety and Standards (Health Supplements, Nutraceuticals, Food for Special Dietary Use, Food For for Special Medical Purpose, Functional Food and Novel Food) Regulations, 2016. <http://www.scconline.com/DocumentLink/MP15y8iJ>.

9 The Food Safety and Standards (Packaging and Labelling) First Amendment Regulations, 2020

10 The Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. <http://www.scconline.com/DocumentLink/wp5Gf111>.

11 The Food Safety and Standards (Alcoholic Beverages) Regulations, 2018.