From: ASHA Kisan Swaraj <firstname.lastname@example.org>
Date: Wed, Oct 28, 2020 at 6:27 PM
Subject: MoHFW/FSSAI’s draft amendmentF.No.Stds/Organic/Notification-01/FSSAI-2019 put out on 27th August2020 for amending the Food Safety and Standards (Organic Foods) Regulation 2017
To: <email@example.com>, <firstname.lastname@example.org>
Cc: Kavitha Kuruganti <email@example.com>
The Chief Executive Officer,
Food Safety & Standards Authority of India,
Food and Drug Administration Bhawan,
Kotla Road, New Delhi 110002.
Sub: MoHFW/FSSAI’s draft amendment F.No.Stds/Organic/
Greetings! Alliance for Sustainable & Holistic Agriculture (ASHA-Kisan Swaraj) is an informal national voluntary network of hundreds of organisations and individuals working to promote sustainable farm livelihoods and protect farmers’ rights. ASHA had engaged with the organic farming regulations put out by FSSAI from December 2016, when the first pre-draft notification consultations were held, at various points of time including in-person interactions with the former and current Chairpersons and former CEO of FSSAI. We refer to some earlier communication on the subject at the end of this letter.
The latest draft notification makes an amendment to the organic regulations notified in December 2017. The following is being proposed to be inserted now, after sub-regulation (2) in regulation 4:
(3) Aggregators or Intermediaries who collect organic food from small original producer or producer organization and sell it to the end consumer directly are exempted from the provisions of the systems referred in sub-regulation (1). They shall maintain records of traceability and comply with the provisions of anyone of the systems mentioned in sub Regulations (1). Such products shall not carry Food Safety and Standard Authority of India’s organic logo.
Further, after sub-regulation (2) in regulation 5, the following is being proposed to be inserted:
(3) In-conversion products under PGS-India may be labelled as ‘PGS-Green’ and may also be labelled as “In-conversion to organic”. Conversion products under NPOP may be labelled as “In-conversion to organic’ and shall mention the year of conversion. Such In-conversion products shall not carry Food Safety and Standard Authority of India’s organic logo.
Taken together, the regulations imposed will now mean the following with proposed changes highlighted in italics below:
● No person shall manufacture, pack, sell, offer for sale, market or otherwise distribute or import any organic food unless they comply with the regulations.
● Certification: Organic food can be offered or promoted for sale has to be certified. Organic food offered or promoted for sale shall have to comply with all applicable provisions of quality assurance/certification systems notified by FSSAI – at this point of time, it includes either National Programme for Organic Production (NPOP) or Participatory Guarantee System for India (PGS-India).
● However, exemptions for the above regulation on certification include:
o Organic food which is marketed through direct sales by the small original producer or producer organization, as determined by FSSAI, to the end consumer – here, a small original producer as well as a producer organization have been kept equal with a 12 lakh rupees annual turnover cap as the main criterion.
o Aggregators or intermediaries who collect organic food from small original producer or producer organization and sell it to end consumer directly. (as per the draft amendment)
● Labelling: Labelling on the package of organic food shall convey full and accurate information on the organic status of the product. Such product may carry a certification mark of one of systems of certification in addition to FSSAI’s Jaivik Bharat organic logo. However, aggregators or intermediaries who use the exemption from certification cannot carry FSSAI’s Jaivik Bharat logo. Similarly, ‘in-conversion’ products shall not carry FSSAI’s jaivik bharat logo. They may be labelled as ‘PGS-Green’ under PGS India or ‘In-Conversion to Organic’ in both PGS India and NPOP. Meanwhile, all organic foods shall comply with the packaging and labelling requirements under FSS (Packaging and Labelling) Regulations, 2011.
● Traceability: Traceability shall be established upto the producer level as applicable under notified certification systems, in addition to any other requirements prescribed by FSSAI. Such traceability requirement is applicable to even the aggregators or intermediaries exempted from certification.
● Compliance with other provisions: All organic foods shall comply with relevant provisions as applicable, under the FSS (Food Product Standards and Food Additives) Regulations, 2011.
● Residues: All organic foods shall comply with relevant provisions as applicable under the FSS (Contaminants, Toxins and Residues) Regulations, 2011 except for residues of insecticides for which specific levels have been set (5% of the maximum limits prescribed or Level of Quantification LoQ whichever is higher).
● Display: The seller of organic food either exclusively or as part of other retail merchandise shall display such food in a manner distinguishable from display of non-organic food.
● Online Endorsement: Using a Direction, FSSAI has also mandated that each organic product in the FBO shelf should be endorsed online by FSSAI under the Registration and Licensing regulations.
1. While the exemption category has been expanded to go beyond small original producer or producer organization to a new category of ‘aggregators or intermediaries’, to this day, there is no clear definition specified on who is an “original”, “small” “producer” or “producer organization”, other than a 29th June 2018 Direction by FSSAI (F.No.Standards/organic/Misc-
● If the original small producer is a farmer, then the regulation is ultra vires the Food Safety and Standards Act 2006 which under Sec. 18 (3) clearly states that “the provisions of this Act shall not apply to any farmer or fisherman or farming operations or crops or livestock or aquaculture, and supplies used or produced in farming or products of crops produced by a farmer at farm level or a fisherman in his operations”. In fact, as we have been pointing out, these regulations themselves are ultra vires the FSSA 2006 in that all farmers are excluded from the purview of the Food Safety and Standards Act.
● Given the amendment suggesting exemption for ‘Aggregators or intermediaries who collect organic food from small original producer or producer organization and sell it to end consumer directly’, another amendment should also have been there to remove the Rs 12 lakh cap for direct sales from small original producer or producer organization for completeness and coherence (it was also not clarified how the same cap applies to a single producer as well as a producer organisation) – this was missing in the draft amendment list. FSSAI cannot have a cap for direct sales from producers to consumers when there is no cap from aggregrators or intermediaries to consumers.
● Given that the exemption that is being proposed to aggregators and intermediaries from certification by the draft amendment is only if they collect from small original producer or producer organisation, it is also not clear how the turnover picture would be verified, especially for ‘original producer’ who could be farmers who do not maintain any such records. This exemption should be for collection from all organic producers.
2. Endorsements are required from FSSAI, product by product, as per FSSAI Direction (15 (21) 2018/Organic/RCD/FSSAI) dated 24th January 2019, and dated 29th June 2018. This will apply to all FBOs of organic foods, and we already pointed out the near-impossibility of this kind of a system which will only discourage retailers from selling organic foods. Such an endorsement is utterly redundant when other regulations are already specifying regulatory requirements of certification, traceability, residue standards, labelling requirements etc. These endorsements are possible only with scope and transaction certificates generated under either of the existing certification regimes. Therefore, in reality, the aggregators or intermediaries which are exempted from certification are really not exempted if this endorsement related requirement is not removed from being imposed on them.
3. On traceability, the proposed draft amendment states – “They shall maintain records of traceability and comply with the provisions of anyone of the systems mentioned”. These are online traceability systems for sources, practices of production and volumes which are onerous. Further, while traceability systems are used to provide a privilege to organic consumers, of knowing who the producer is, such systems are not mandated for other foods incidentally – in fact, it is such other non-organic foods that require traceability from a food safety perspective. Be that as it may, traceability to be followed in NPOP tracenet system necessarily requires enrollment into certification regime there. Therefore, it is meaningless to say that intermediaries or aggregators in the category of exemption proposed in the current draft amendment have to maintain traceability systems but they are exempted from a certification regime. This then limits the exemption to aggregators or intermediaries who can put into place traceability systems as required under PGS-India. In the PGS India system, traceability is more challenging with UIDs of farmers having to appear on all products in a transparent online system. What is not understandable is why such traceability systems have to be put into place for these one-step-away-from-direct-
4. On Jaivik Bharat logo not to be used by exempted categories in the regulations related to certification, and by ‘in-conversion’ organic products, we had proposed long ago that the best solution to the various conceptual and practical quandaries posed by the organic food regulations being notified is that all regulations be made applicable to only those organic foods which would like to have the additional benefit of using the Jaivik Bharat FSSAI logo. This will resolve many issues of over-regulating and penalizing organic farmers when the regulatory and certification regimes are not equipped to carry the mandate forward for implementation. We had listed out the issues with the certification regimes time and time again in the past.
Given all the above, the following comments and suggestions are being provided to FSSAI in the format in which it seeks public comments and suggestions.
Subject: Draft Food Safety and Standards (Organic Foods) Amendment Regulations, 2020
|Sr. No.||Name and Address of the organization/person, contact number and Email||Relevant section in the draft notification on which comments are being provided||Comments/Suggestion||Rationale||Remarks|
Alliance for Sustainable & Holistic Agriculture (ASHA),
#302, Santhome Apartments, 1st A Cross, Indiranagar I Stage, Bangalore 560038
|Regulation 4, sub-regulation (3)||AMEND TO:
“Aggregators or Intermediaries who collect organic food from organic producers and sell it to the end consumer directly are exempted from the provisions of the systems referred in sub-regulation (1) and from FSSAI endorsement. They shall maintain simple offline records of tracing-back traceability system. Such products shall not carry Food Safety and Standards Authority of India’s organic logo”.
|The exemption given to aggregators or intermediaries will be meaningful, relevant and effective only if they are exempted from onerous FSSAI online endorsements as outlined in a 2018 Direction, and if they are exempted from online traceability provisions which are meant for participants in the existing certification regimes. However, these aggregators should be mandated to maintain simple tracing-back records for traceability, and not tracing-forward traceability as exists in certification regimes.|
|2||Regulation 4, sub-regulation (2) as connected with sub-regulation (3) now||ADD TO THE CURRENT PROPOSED AMENDMENTS:
“The organic food which is marketed through direct sales by organic producers to the end consumers shall be exempted from the provisions of the systems referred in sub-regulation (1) without any cap on annual turnover. Such products shall not carry Food Safety and Standards Authority of India’s organic logo”.
|The logic of exemption being proposed for aggregators or intermediaries is very much applicable to all organic producers who are directly selling to end consumers, without a cap of annual turnover. They should be enabled to do so, without the use of Jaivik Bharat logo.|
Date: October 28, 2020
OUR EARLIER SUBMISSIONS ON THE SUBJECT OF FSSAI ORGANIC FOOD REGULATIONS:
- December 2016: https://kisanswaraj.in/
2017/04/06/asha-engages-with- fssai-on-organic-foods- regulation-by-the-food-safety- authority/
- May 2017: https://kisanswaraj.in/tag/
- March 2018: https://www.kisanswaraj.in/
2018/03/19/fssais-organic- standards-regulations-a- potential-impediment-to-the- spread-of-organic-farming-in- india/
- March and April 2019: https://kisanswaraj.in/
2019/04/10/fssai-receives- letter-on-concerns-with- regard-to-its-organic-food- regulations-and-implications- for-uncertified-organic- farmers/