Sunil Jain: Food for thought

RATIONAL EXPECTATIONS

For an industry that's used to talking of unfriendly government policies, The Food Safety and Standards Bill, 2005 that is likely to be introduced in Parliament this session can only be good news. Unlike the old Prevention of Food Adulteration Act, and a whole host of others that it will supersede, including those at the state level such as the one in Delhi which prevents the sale of paneer (cottage cheese) in summer unless it is licensed and inspected since paneer goes bad very quickly in the heat, the new Food Bill actively takes into account the interests of trade and industry; indeed it assures us little will be done that will inconvenience trade and that trade will be consulted during the process of risk management, for instance "" the old PFA, by contrast, had nothing which explicitly spoke of protecting the interests of industry. If industry doesn't respond to this new bill, it will respond to nothing.

Section 18 (1)(a), the very first in the section that lays down the general principles of food safety, clearly states that "the endeavour (is) to achieve an appropriate level of protection of human life and health". Another section talks of a situation where there is a "possibility of harmful effects on health, but scientific uncertainty persists" and says that in such a situation, "the measures adopted shall be proportionate and no more restrictive of trade than is required to achieve appropriate level of health protection." Appropriate to whom, one may well ask, and is appropriate related to per capita income? That is, one set of standards for the developed world, and another for India.

Let's, for the moment, forget the Coke and Pepsi pesticide controversy in the country "" in the UK, in 2004, Coca-Cola recalled 500,000 bottles of Dasani water when it was found it contained bromate which, the Food Standards Agency describes as "a chemical that could cause an increased cancer risk as a result of long-term exposure, although there is no immediate risk to public health." Dasani samples tested between 10 and 22 parts per billion as against the limit of 10 for bromate, and the FSA clearly indicated there was no immediate risk, yet Coke recalled the bottles. Given the emphasis on "appropriate level of protection" and on proportionate and not restrictive measures on trade, it looks unlikely such a recall could ever take place in India under the proposed bill.

The fact that the bill is terribly drafted and full of contradictory statements doesn't help either since, in the case of a dispute, lawyers on both sides will cite the clauses that suit their clients. Section 3 of the bill deals with various definitions such as what an adulterant is, what a contaminant is, what makes food unsafe, substandard, and so on. Just focusing on a few of these definitions should suffice to make the point.

"Contaminant", section 3(1)(g) says is any substance which gets into the food "as a result of the production (including operations carried out in crop husbandry, animal husbandry) ... " "" so, it could be argued, the DDT in milk is a result of the pesticides in crops, and so on. (For reasons best known to the drafters of the bill, it says contaminants do not include insect fragments or rodent hair!)

So far, so good. Another sub-section goes on to describe "extraneous matter" as "any matter contained in an article of food which may be carried from the raw materials, but such matter does not render such article of food unsafe" "" in other words, the DDT in milk could either be a "contaminant" or an "extraneous matter". Which it is, is critical since if it is "extraneous", it is not unsafe. Yet, in the section that defines what unsafe food is, 3(1)(zz), one of the definitions of what is unsafe is, believe it or not, food that contains extraneous matter!

Now, let's take the case of a food which does not meet the specified standard of, say, heavy metal content. This is said to be "sub-standard" and that, in turn, is defined as something that "does not meet the specified standards, but not so as to render the article of food unsafe". So, is the Dasani water to be considered sub-standard in India or unsafe? Or are they both the same thing? The definition of what is sub-standard in the bill suggests that what is sub-standard need not be unsafe, but the definition of unsafe includes the possibility of the food being sub-standard.

It could, of course, also be a "contaminant" since this got introduced in the manufacturing process or even an "extraneous matter" "" the latter may or may not make the food unsafe depending upon which clause of the bill you choose to stress upon, clause 3(1)(zz)(xi) or 3(1)(i).

Surely a bill that is going to supersede all other bills in the area cannot be passed if it is so shoddily drafted and contains all manner of escape clauses for manufacturers that are not able to adhere to health standards, even those considered appropriate for our income levels.