UncategorizedFOOD SAFETY AND STANDARDS (ADVERTISING AND CLAIMS) REGULATIONS, 2018 – A DEEPER DIVE INTO COMPLIANCE

INTRODUCTION 

The focus of the regulation is to make the Companies accountable for their claims on food products and cater to the interest of customers.

The new rules issued by FSSAI are pertaining to food advertisement. Earlier, it permitted the products to have names that included words like “natural”, “fresh”, “pure” and “real”, but with disclaimer.

However, the new regulation marks a shift. It prohibits the companies from using deceptive words like “natural”, “fresh”, “original”, “traditional”, “premium”, “finest”, “best”, “authentic”, “genuine” and “real”. Companies can be permitted to use such words only under specific conditions laid down under the regulation.

These regulations contain several sections detailing definitions; general principles for claims and advertisements; criteria for nutrition claims (including nutrient content or nutrient comparative claims), non-addition claims (including non-addition of sugars and sodium salts), health claims (reduction of disease risk), claims related to dietary guidelines or healthy diets, and conditional claims; claims that are specifically prohibited; and procedures for approval of claims and redressal of non-compliances under these regulations.

In this regulation, the Government has included a detailed list of definitions and criteria; in Section 3 it includes general principles for claims and advertisements, followed by criteria for nutrition claims (including nutrient content or nutrient comparative claims) in Section 4 and non-addition claims (including non-addition of sugars and sodium salts) in Section 5. 

SOME FAQs

1. To whom does the regulation apply to?

As stated under Section 3, every food business operator and marketer who is advertising shall comply with the regulation.

2. What are the general principles laid down under the regulation?

Section 4 states the general principles which are as follows:

• Claims must be truthful, unambiguous, meaningful, not misleading and must help consumers to comprehend the information provided.
• Claims shall not encourage or condone excess consumption of a particular food.
• Claims shall not state, suggest or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients as required by the body.
• Where the claim benefit is related to or dependent on the method of preparation of the food, the same shall be provided on the label.
• Claims shall specify the number of servings of the food per day for the claimed benefit.
• The claim that a food has certain nutritional or health attributes shall be scientifically substantiated by validated methods of characterizing or quantifying the ingredient or substance that is the basis for the claim.
• Where the meaning of a trade mark, brand name or fancy name containing adjectives such as “natural”, “fresh”, “pure”, “original”, “traditional”, “authentic”, “genuine”, “real”, etc., appearing in the labelling, presentation or advertising of a food is such that it is likely to mislead consumer as to the nature of the food, in such cases a disclaimer in not less than 3mm size shall be given at appropriate place on the label stating that –

“This is only a brand name or trade mark and does not represent its true nature”.

• All disclaimers relating to a claim shall be conspicuous and legible.
• Notwithstanding the mandatory declaration of Food Safety and Standards Authority of India logo and license number as per Food Safety and Standards (Packaging and Labelling) Regulations, 2011, no claim or promotion of sale, supply, use and consumption of articles of foods shall be made using Food Safety and Standards Authority of India logo and license number.
• Advertisements shall also not undermine the importance of healthy lifestyles.
• Advertisements for food or beverages shall not be promoted or portrayed as a meal replacement unless otherwise specifically permitted as a meal replacement under any other Regulations made under Food Safety and Standards Act, 2006.
• Claims in advertisements shall be consistent with information on the label of the food or beverage.
• No advertisement shall be made for food products which is deceptive to the consumers.

Every declaration which is required to be made on advertisements under these regulations shall be conspicuous and legible. 

POINTS FOR EVALUATION 

1. Provisions for ‘Nutrition Claims’

How are ‘Nutrition Claims’ defined under the Regulation?

The Act has divided claims into two parts i.e. ‘Nutrition claim’ and ‘Nutrient comparative claim’ to give a more precise an inclusive definition. It includes direct, indirect and comparative representation about the product.   

 What are the requirements for ‘Nutrition Claims’?

According to Section 5, any ‘Nutrition Claim’ must be made in accordance with Schedule I, provided it is granted the flexibility of the wording under Schedule II.  The specific requirements in case of ‘Nutrient comparative claim’ are laid down under Section 4, 5 and 6.

2. Provisions for ‘Non-Addition Claims’

What are the various ‘Non-Addition claims’ covered by the regulation?

The regulation lists the following categories of non-addition claims:

1. Non-addition of sugars
2. Non-addition of salt (Sodium chloride)
3. Non-Addition of additives

What are the requirements for Non-Addition Claims’?

It lays down that the non-addition claims may be made if:

1. No such ingredient is added,
2. No ingredient that contains that particular non-addition claims as an ingredient,
3. Does not contain any ingredients having the non-addition claim that substitute other ingredients and
4. The non-addition claims content of the food itself has not been increased above a certain amount.

3. Provision for ‘Claims related to dietary guidelines or healthy diets’

Such claims shall comply with:

1. Indian Council of Medical Research Dietary Guidelines for Indians.
2. The criteria for other major nutrients related to the current Indian Council of Medical Research Nutrient Requirements and Recommended Dietary Allowances for Indians and Indian Council of Medical Research Dietary Guidelines for Indians, based on scientific evidence.

4. Provision for Conditional Claims

What is the compliance for conditional claims?

1. Words like, “natural”, “fresh”, “pure”, “original”, “traditional”, “Authentic”, “Genuine”, “Real”, etc., can be used only in accordance with conditions laid down in Schedule V.
2. Words or phrases like “home–made”, “homecooked”, etc., are prohibited.

5. Provision for Prohibited Claims

What is the compliance for prohibited claims?

• No product can make a claim regarding sustainability unless permitted under any other regulations made under Food Safety and Standards Act, 2006 (34 of 2006).
• Phrases such as “recommended by the medical or nutrition or health professionals” are not permitted.
• Terms like “added nutrients” are not to be used in cases where they are added merely to compensate for lost nutrients during the process.
• Food for special dietary uses shall not be included unless permitted under any other regulations made under Food Safety and Standards Act, 2006 (34 of 2006).
• No claims can be made that give rise to suspicion about the safety of similar foods.
• No health claims can be made for foods that increase the risk of a disease.
• No claims or advertisement can be made that undermine other manufacturer’s products.

6. Provision for Health Claims

What is the compliance for health claims?

An advertisement having health claims should state the following information:

1. Physiological role of nutrient or substance or an accepted diet health relationship.
2. Composition of the product relating to the nutrient, substance or the accepted diet-health relationship.

When the health claim is due to a constituent in the food having an established recommended dietary allowance value, the concerned food shall be:

1. Source of the constituent or high in the constituent when increased consumption is recommended.
2. Low in, reduced in or free of the constituent, when reduced consumption is recommended.

• It should contain a statement of the quantity of nutrient or substance on basis of which health claim is made, per 100g/100ml or per pack of the food.
• They shall mention the target groups, advice vulnerable groups on consumption or avoidance of the food, directions for usage and the maximum safe intake of the food.
• A ‘reduction of disease risk’ claim cannot be made without complying with Schedule III.

7. Procedure for Approval of Claims

Approval of Claims from the Food Authority is required for ‘reduction of disease risk’ claims other than those which are defined and have criteria laid out under the regulations.

• The Application for Approval of Claims should contain following information:

1. Claims to be made.
2. Name of ingredient, nutrient or substance relating to the claim.
3. Validated method of analysis.
4. Scientific information or materials to substantiate the claim.
5. Clear and meaningfulness of the claim to help consumers understand the information.

• The Food Authority either by itself or through an agency carries out preliminary scrutiny of the application.
• Deficiencies found in the application shall be informed to the applicant within 90 days from date of receipt of application. The applicant is to rectify the application and provide necessary information to the food authority within 30 days of the receipt of communication, failing which the application is rejected.
• After completion of scrutiny, the Food Authority approves or rejects the claim and may suggest amendments to the claim.
• The amended claims are submitted to Food Authority within 30 days for reconsideration.
• If the claim gets rejected, the food business operator shall not use the claim for advertising and marketing communication of the food for sale, promotion, supply, use or consumption.

8. Procedure in case of Non-Compliance

In case of non-compliance with this regulation, such person will be penalised under Section 53 of Food Safety and Standards Act, 2006.

Non-compliance can either be referred to the Food Authority or they can suo moto take cognizance of the matter. The Food authority either themselves or through an agency/ panel investigate into misleading claims.

 How is the investigation carried out?

1. The investigating authority seeks information and clarification from the Company, failing which an action is initiated as per sub-regulation (1) of regulation 13.
2. The information/clarification shall be submitted by the Company within 30 days.
3. An officer will be nominated by the Authority. He/she shall pass a speaking order within 90 days based on the information received. 

CONCLUDING REMARKS

This Regulation provides for conditions which have to be followed by Food Business Operators and their marketers while advertising food related claims on their products. This regulation is a step forward in creating consumer awareness regarding food benefits claimed in the advertisement and a proactive step to curb deceptive advertising practices.

The Regulation clearly defines the criteria to be followed for specific claims, thus bringing an end to the generalized compliance for food claims advertisement followed earlier. Such companies / marketers have a duty to comply with the Regulation and failure to comply may incur penalty.

This content is purely an academic analysis under “Legal intelligence series”.

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Disclaimer: The information contained in this document is intended for informational purposes only and does not constitute legal opinion, advice or any advertisement. This document is not intended to address the circumstances of any particular individual or corporate body. Readers should not act on the information provided herein without appropriate professional advice after a thorough examination of the facts and circumstances of a particular situation. There can be no assurance that the judicial/quasi-judicial authorities may not take a position contrary to the views mentioned herein.