How Supreme Court grilled FSSAI on food warning labels: 13 posers, 10 days

The Supreme Court has, in a detailed order, asked the Food Safety and Standards Authority of India (FSSAI) and Union government to reconsider several aspects of its proposed Front-of-Pack Labelling (FoPL) system for packaged foods in national interest.

The September 10 order stated that “FoPL would make great strides in facilitating informed decision-making on the part of consumers during purchase and facilitate product reformulation in the long run, thus contributing to healthier food environments”. With it came a directive: “If the Union [government] does it on its own, well and good; otherwise we shall proceed to pass further directions.”

The court did not agree with the government’s stance that it need not meet international standards in food labelling, especially those laid out by developed countries. “Should India remain an underdeveloped country?” asked a bench of Justices J.B. Pardiwala and K. Vinod Chandran.

The court raised 13 pointed questions for FSSAI on various issues, including the rationale for a phased approach to FoPL, limiting the first phase to products high in two or more nutrients of concern, the use and size of red hexagonal warnings, whether labels should distinguish between moderately processed and ultra-processed foods, and the use of total versus added sugar and fat. It sought clarity on pictorial warnings, placement and mandatory implementation.

Advocate Rajiv Shankar Dvivedi, representing petitioner 3S and Our Health Society, said the court had posed reasoned queries to FSSAI and sought responses based on its interpretation of FSSAI rules and regulations. “The court has delved deep into an assessment of the various recommendations and posed questions to FSSAI as to how it will reconcile its suggestions and recommendations with those propositions,” Dvivedi said, adding that the ball is now in the FSSAI’s court.

“The court has reposed faith in the petitioner, 3S and Our Health Society, by accepting our suggestions in the order and further by giving time to comment upon the response of the FSSAI," he said.

The Supreme Court directed FSSAI to file its response by way of an affidavit within 10 days. The next hearing is scheduled for September 28. Here are the 13 questions the court posed to FSSAI for a response:

* What is a reasonable and fixed timeline that FSSAI envisages for implementation of the two proposed phases?

* What is the basis for FSSAI’s proposal to include food products high in “two or more” nutrients of concern and specified sweetened beverages in phase 1, and food products high in “any one” nutrient of concern in phase 2?

* How does FSSAI propose to identify the specific sweetened beverages that fall under phase 1 of the proposal? Additionally, what are the threshold levels of the specific nutrient(s) of concern for such beverages?

* In calculating the threshold levels for each nutrient of concern, does FSSAI wish to account for the difference between food categories 2 and 3 in the FoPL?

* In calculating the threshold levels for each nutrient of concern, does FSSAI wish to account for the difference between food groups B (moderately processed, with no additives) and C (excessively processed, with additives) in the FoPL?

* Are the threshold limits for fat and sugar to be calculated on the basis of “total” sugar and “saturated fat”, as indicated in the stakeholders’ meeting conducted on October 29, 2021? Furthermore, how would trans-fat levels be factored into the fat content calculations for the purpose of FoPL?

* Given that the average Indian consumer is habituated to associating the colour red with non-vegetarian ingredients, would it be necessary for FSSAI to revisit its choice of colour for the FoPL?

* What are the dimensions of the “red hexagon” proposed for use in the FoPL? Would it have standardised specifications or would it be calculated in proportion to the package’s surface area? Would the font size used for the FoPL be relative to the dimensions of the hexagon itself? What would be the manner and method of placement of such hexagon(s)?

* Without distinct pictorial representations for each nutrient of concern in the FoPL, how does FSSAI propose to cater to the diverse levels of comprehension, literacy and reading ability among the consuming population?

* Why FSSAI suggested a combined/composite/singular hexagon for two or more nutrients of concern instead of separate, distinct, individual hexagons for each nutrient of concern?

* How would FSSAI regulate the potential increase in the use of artificial preservatives, emulsifiers, etc., that may result from the implementation of the FoPL?

* Once the final regulations making the FoPL mandatory are notified, is a voluntary compliance period envisaged? If so, for how long?

* How does the Union of India propose to incorporate, through curriculum, initiatives, workshops, etc., (i) guidance on how information provided on packaged food items, including nutritional information, FoPL, etc., should be interpreted, and (ii) other aspects of nutritional literacy, at the school level?

These questions appear to be an attempt by the court to scientifically examine the FoPL norms proposed by FSSAI. The food safety authority had proposed red-coloured, hexagonal warning labels for packaged products declaring “HIGH FAT”, “HIGH SUGAR”, “HIGH SALT”, and/or “HIGHLY SWEETENED”, all combined in a single hexagon, to be implemented in two phases.

In the first phase, the warning would apply only to products high in two or more of added sugar, salt and added saturated fat, along with specified sweetened beverages; in the second phase, a product with even one nutrient of concern above the threshold would require a warning label.

FSSAI proposed warning-label thresholds for sugar, salt and saturated fat based on the ICMR-NIN Dietary Guidelines for Indians (DGI 2024). FSSAI has suggested that the warning labels be just “one point larger” than the small, usually 6 to 8 point size, font used for the nutrition table on the back of packaged foods.

The petitioner has challenged the two-nutrient trigger, the two-phase approach and the small font size, among other issues, calling them an industry-friendly loophole while the packaged food industry has sought a per-serve basis in place of the per-100-gram methodology.

A LocalCircles survey of 108,000 respondents, conducted to gauge what consumers want from the front-of-pack warning label, found that 80 per cent believe FSSAI should mandate a warning label from the outset if a product is high in even one out of sugar, salt and saturated fat, with only 12 per cent backing the proposed two-phase approach.

At the same time, 88 per cent of consumers surveyed said the front-of-pack warning label should be large, clearly visible and immediately noticeable, and only 10 per cent said the size FSSAI has proposed—one point larger than the nutrition information table on the back of the pack—is sufficient.