Food watchdog found exceeding mandate on product approvals

In another setback for India's food safety regulator, the Supreme Court on Wednesday upheld the Bombay High Court order that had struck down the watchdog's advisory of May 2013, requiring prior product approvals for eight categories of food and health supplements.

The apex court bench of Justice J.S. Khehar and Justice N.V. Ramana declined the plea of the Food Safety and Standards Authority of India (FSSAI) and said that if the watchdog wanted to add some more products under its wing, it ought to have sought a fresh government notification.

This was also the ruling of the Bombay High Court delivered on June 30 last year.

Rejecting the contention of FSSAI that it could not sit back and wait for the regulations to be framed, which takes a long time, before it could step in to check the hundreds of new products that were entering the market every day, the court said, "The regulations have to come from the central government. Tell the government to bring in new regulations."

Telling the FSSAI that it could not act arbitrarily, the court said it could not list a product as "bad" merely because it thinks so.

Pointing to the possible misuse of power, the court told FSSAI counsel Mehmood Pracha: "There have to be reasons for it. Where is the authority for you to do this. We cannot leave it to one person or authority."

"Just as we have to ensure that you act, we also have to ensure that no improper action is taken," the court observed.

The apex court verdict comes close on the heels of the Bombay High court lifting the ban imposed by FSSAI on 'Maggi' noodles and also ordering fresh tests by three separate accredited labs to ascertain its safety.

The Bombay High Court judgment had quashed the food safety regulator's May 2013 advisory, while addressing the question whether it was issued with or without legal sanction and if such powers had been bestowed under sections 92 and 93 of the Food Safety and Standards Act, 2006.

Section 92 spells out the power of the food safety authority to make regulations while section 93 says that every rule and every regulation made under this act shall be laid before parliament.

The high court order came after a company, Vital Nutraceuticals, and the Indian Drug Manufacturers Association (IDMA) challenged the May 2013 advisory of the regulator.