New Delhi: The Supreme Court has raised questions on the Food Safety and Standards Authority of India’s (FSSAI) proposed system for putting warning labels on the front of packaged food products. It asked the FSSAI why the labels should not be made mandatory from the “get-go” and sought clarity on 13 aspects of the proposed system.
A Bench of Justices JB Pardiwala and K Vinod Chandran, in a 31-page order passed after Thursday’s hearing, said several aspects of the proposal remained unclear. The court has been hearing pleas over the issue for months and has recently come down heavily on FSSAI for delays in implementing the system.
“We acknowledge that significant progress has been made by the FSSAI on the matter since the date of the last hearing,” the court said. “However, we would be remiss not to point out that several aspects or specificities anchoring the practical implementation of the FSSAI’s proposal still remain ambiguous and need further clarification.”
In its latest affidavit filed before the court on 28 August, the FSSAI proposed red hexagonal warnings in two phases starting with labels on products that exceeded limits in at least two of three categories — added sugar, salt or saturated fat. The second phase will introduce stricter rules, it said.
The court questioned why the first phase should cover products high in two or more nutrients and the second those high in any one nutrient. It also sought clarity on the levels at which a product would be considered high in a nutrient, as well as the size, colour and design of the warnings.
The Bench also asked FSSAI to explain what it meant by a “reasonable period” before the warnings would become mandatory. “We are only concerned about the health of the people, especially growing children. We want all concerned to consider the cause in national interest.”
The court has directed the government and the FSSAI to provide an appropriate response to the 13 questions raised in its order. The matter is scheduled to be heard again on 28 September.
The petitioner’s counsel Rajiv Shankar Dwivedi said the court had examined the proposed system in detail.
“It is a beautifully written judgment by a judge with a scientific temper… The honourable court has posted a reasoned query to FSSAI and sought their response based on interpretation of the Court of the existing law, rules, and regulations of FSSAI earlier,” he told ThePrint. “The court has not given any findings; it has just given food for thought. They have just sought the reaction and opinion of FSSAI,” he added.
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Court questions thresholds and phased rollout
The petitioner in the case — 3S and Our Health Society, a Kerala-based non-profit — had suggested that the first phase could have higher thresholds, which could then be lowered over time to more scientifically appropriate levels. Citing Israel’s model, they said this could allow a gradual move towards stricter thresholds.
The court said it saw “some logic” in this approach and asked the FSSAI to consider it.
If FSSAI retains its two-system approach, the court said it must set a clear timeline for moving from the first phase to the second. “The absence of a fixed timeline separating the two phases, by itself, raises some concerns,” it said.
The court added that giving manufacturers time to reformulate products and allowing consumers to get used to the warnings “cannot be reason enough for this uncertainty in time”.
Dwivedi said the lack of a timeline was one of the petitioner’s main objections to the FSSAI proposal. “When the second stage will come into force, it cannot be a postdated check of undetermined future,” he said.
The court also questioned the basis for the nutrient thresholds proposed by FSSAI.
The 2024 Dietary Guidelines for Indians, issued by the Indian Council of Medical Research-National Institute of Nutrition (ICMR-NIN), describe high-fat, sugar and salt (HFSS) foods as those prepared with excessive cooking oils or fats, or with more added sugar and salt.
The FSSAI’s 2022 draft regulations, however, define HFSS foods as products with high levels of saturated fat, total sugar or sodium.
The court said the difference between the two definitions needed to be resolved before FSSAI finalises its phased approach.
“The use of the disjunctive ‘or’ and the conjunctive ‘and’ in a different manner in both these documents reflects some confusion. As a matter of priority, this needs to be resolved,” the court said. “Thereafter, the basis of the phased strategy must be approached in accordance with the consensus arrived at on the definition of the HFSS foods.”
The court also asked whether the level of processing should be factored into front-of-pack labelling, particularly when distinguishing between moderately processed and ultra-processed foods.
“There is a least-processed, high-nutrient product and there is a highly-processed and least-nutrient product. How can you treat them equally? The FSSAI has to look into this,” Dwivedi added.
Issues with label design, colour
On the design of the warning, the court noted that FSSAI has proposed a font one point larger than that used in the nutrition information table, but said the proposal does not specify the dimensions of the red hexagonal logo.
“A discussion on the size, dimensions and other details of the hexagonal FoPL (front of package labelling) are also crucial… We would also like to know whether the FSSAI intends to fix the size of the logo relative to the area of the front of the package or make it standardised,” the order read.
The court also questioned the word-based warning system, saying it assumes a certain level of literacy and reading ability and may not work equally well across regions, languages and age groups.
“Ideally, an all-inclusive FoPL which effectively caters to the diverse population of this country should incorporate a combination of words along with pictorial representations of the individual nutrients-of-concern,” the court said.
It also asked why separate hexagons could not be used for “High Sugar”, “High Fat” and “High Salt”, instead of combining multiple warnings in one hexagon.
The choice of red was another issue. The court noted that Indian consumers commonly associate green with vegetarian food and red with non-vegetarian food labels, and asked FSSAI to consider whether the colour should be changed.
The court also warned that focusing on sugar, salt and fat could have the “unintended and unfortunate consequence” of increasing the use of artificial preservatives, emulsifiers and other additives.
It noted that sugar, salt and fat also perform functional roles in packaged foods, including improving taste and palatability, texture and structure, shelf life and microbiological safety, and processing stability. “The FSSAI must keep this danger in mind, while finalising their threshold limits and must also issue some corresponding regulations to the addition of such chemicals in packaged foods.”
The court also asked FSSAI to explain whether the warning system should be based on total or added sugar and fat. It referred to minutes of a stakeholder meeting held in October 2021, which recorded a consensus on using “Total Sugars” and “Saturated Fat” for front-of-pack labels. The court asked FSSAI to indicate whether its position had changed since that consultation.
It also asked whether trans fat should be shown along with saturated fat or whether only saturated fat should be included on the warning label.
On mandatory implementation, the court referred to the 2022 draft regulations, under which compliance with the proposed Indian Nutrition Rating system was to remain voluntary for 48 months and become mandatory thereafter.
It asked FSSAI to respond specifically to the petitioners’ suggestion that the final front-of-pack labelling regime should be made mandatory “from the get-go”. “If not, we would like to know what is a reasonable period after which they intend to make its compliance mandatory,” the Bench said in the order.
The court also turned to nutritional literacy among children. It asked the Centre to explain how schools could incorporate nutritional information through curricula, workshops and other initiatives. The question was posed while referring to its earlier observation that children are increasingly exposed to packaged foods before they are equipped to assess what they are consuming.
“In recognition of the vulnerable position that children are in vis-à-vis impulse or uninformed dietary decision-making, we are of the view that some action must be taken in this regard,” the court said. It asked the government to consider teaching children how to interpret nutritional information and front-of-pack warnings on packaged foods, along with broader aspects of nutritional literacy.
(Edited by Chingkheinganbi Mayengbam)