S NEW Labelling AND Display Regulations Bird S EYE View: Sandeep Sreekumar

SCC Online Web Edition, © 2021 EBC Publishing Pvt. Ltd.
Page 1 Tuesday, November 09, 2021

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2021 SCC OnLine Blog OpEd 96
FSSAI's new labelling and display regulations - A bird's-eye view
FSSAI'S NEW LABELLING AND DISPLAY REGULATIONS - A BIRD'S-EYE VIEW

by
Sandeep Sreekumar*
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.
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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
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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
13. 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.
14. 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
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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
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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
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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
31. 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 etc. 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.
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32. 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.
33. 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.
———
* 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
<http://www.scconline.com/DocumentLink/QSJsY7ob>
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.
<http://www.scconline.com/DocumentLink/361BidLh>.
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SCC Online Web Edition, © 2021 EBC Publishing Pvt. Ltd.

Page 1 Tuesday, November 09, 2021

2021 SCC OnLine Blog OpEd 96

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

FSSAI'S NEW LABELLING AND DISPLAY REGULATIONS - A BIRD'S-EYE VIEW

packages with food articles containing low gluten, it is mandatory to provide a

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