The Union government is giving final shape to the laws to regulate the labelling and advertisement of food products. In November 2017, the Food Safety and Standards Authority of India (FSSAI) issued the draft Food Safety and Standards (Advertisements and Claims) Regulations, 2017, for public comments. On January 5, 2018, the Consumer Protection Bill, 2018, was introduced in the Lok Sabha to address consumer rights issues, including those related to celebrity endorsements. Both these laws are long overdue, as the existing ones are simply too weak to prosecute and penalise false and misleading claims and advertisements.
In the last 25 years, a major transition in the disease patterns has taken place in India. In 1990, more than 60% of all diseases were either infectious (like TB and diarrhoeal diseases), or due to birth complications or lack of nutrition (like anaemia). These afflictions now account for just 33% of the disease burden. Conversely, the contribution of non-communicable diseases like cardiovascular diseases, diabetes, neurological diseases, cancers, etc, to the total burden has increased from 30% to 55%. The maximum increase has happened in diseases that are linked to an unhealthy diet and lifestyle. Today, heart diseases triggered by high blood pressure, high cholesterol, and overweight are the leading cause of death, and the country has more people with type-2 diabetes than any other nation. There is now an emerging body of scientific studies linking junk food with childhood obesity and the diabetes epidemics. It is in the context of these diseases that labelling and advertisement of food products assumes vital significance.
Food and beverage companies have shown scant regard for public health. The kind of claims that Indian companies make or the suggestive advertisements they put out, would be considered illegal in most developed and emerging countries. For instance, it is quite common for products in India to claim that they are 90% plus fat-free. No food product can make such claims in the EU. Health claims linking dietary fibre to a lower risk of heart diseases are not authorised in the US; such claims are liberally made in India. Edible oil brands in India get away by claiming anything from “antioxidant power” to “reduces belly fat” to “healthiest oil”, and bottled water can claim 300% extra oxygen without any repercussions.
Suggestive advertisements are a far bigger problem. A recent advertisement of Maggi noodles shows a child coming home from school being offered a bowl of Maggi noodles by his mother. A false perception is created that Maggi noodles is as good as a balanced meal. Such suggestive ads are more damaging when endorsed by celebrities. Bollywood celebrities regularly endorse popular packaged foods and sugary drinks. When Hrithik Roshan drinks Mountain Dew and says “Darr Ke Aage Jeet Hai” and Ranveer Singh drinks Thums Up at a racetrack with “Take charge” hashtag, the message is subtle yet clear: drinking Mountain Dew and Thums Up will make you brave and cool. A great way to hook the young and the adolescent to these caffeinated sugary drinks.
Will the draft Food Safety and Standards (Advertisements and Claims) Regulations, 2017, and the Consumer Protection Bill, 2018, fix these loopholes? Let us examine.
The Consumer Protection Bill, 2018, has enhanced the penalty for false or misleading advertisement. The manufacturer, or service provider, can be punished with imprisonment of up to two years and fine of up to `10 lakh. For every subsequent offence, the offender will be punished with imprisonment up to five years and fine up to `50 lakh. Penalty can be imposed on the endorser, who could be a celebrity, but the provision of imprisonment is not applicable to them.
The Bill establishes a Central Consumer Protection Authority (CCPA) to regulate matters related to violation of consumer rights, unfair trade practices and false or misleading advertisements. The CCPA can inquire, or investigate, either suo-motu or on receipt of a complaint, cases of consumer rights and unfair trade practices. They would have the power to recall goods that are unsafe or dangerous and order discontinuation of false or misleading advertisement. Product liability and compensation have also been addressed.
The Bill is a major improvement over the existing regulations but there is a huge scope to increase the penalty further. History tells us that it is near impossible to imprison corporate honchos. Stiff penalty is the only credible deterrence for non-compliance. Fining MNCs `50 lakh is not a credible deterrence.
The Bill equally fails to address the issue of celebrity endorsement. It states that no endorser will be liable to a penalty if she/he has exercised “due diligence” to verify the claims. But it has not specified parameters for what constitutes a “due diligence”. This is a major loophole as celebrities can easily define their own due diligence and avoid penalties.
The draft Food Safety and Standards (Advertisements and Claims) Regulations, 2017, is again an improvement over what presently exists. But it too has some major problems. One of the key problems is its “reductionist approach” towards nutrition and health claims. It allows a product to claim health/nutrition benefits based on one attribute even if the product is bad on other nutrients/attributes.
A 2016 study by my colleagues at the Centre for Science and Environment found claims based on one attribute/nutrient to be a common practice. The study documented how biscuit brands like Britannia, Sunfeast and McVities Digestive biscuits advertise “high fiber” content, but fail to mention that these products also have a very high fat content. Bournvita claims “pro health vitamins”, but fails to inform parents that its each serving to a child is equal to more than 50% of recommended upper daily limit of sugar. The draft regulations would continue to allow such claims, though quantitative limits have been specified for making claims of high fiber, high vitamins, etc.
It is critically important to establish criteria for a “balanced diet” that defines a minimum/maximum amount of all nutrients. A product should be allowed to claim nutrition/health benefits with reference to one attribute if it fulfills these criteria. The importance of such a criterion is also stated in the Codex Guidelines for Nutrition and Health Claims.
The requirement of labelling is poorly framed. For instance, it allows food products to gain commercial advantage by claiming low salt and trans fats, but doesn’t make it mandatory to declare high trans fats and salt content.
The advertisement clauses, especially those targeting children, also need strengthening. For certain categories of foods, like junk food and sugary drinks, where the harm to children is scientifically established, the law should restrict timing and placements of ads, including banning of celebrity endorsements. This is being done in countries as varied as Canada (Quebec), the UK, Ireland and Belgium to Estonia, Hungary, Chile, Mexico, Iran and South Korea. Research shows that such restrictions have reduced consumption of food high in fat, sugar and salt.
Consumer Protection Act was last amended 15 years back. The FSSAI has taken 10 years to come out with a specific regulation on advertisement and claims. This is an opportunity to get both these regulations right. Any laxity now will have huge implications on the public health, now and in the future.
(Deputy director general, Centre for Science and Environment Views are personal)