FSS regulations on Organic Food challenged in Madras High Court [Read Petition]

The Madras High Court has issued notice in a petition challenging the validity of the recently implemented Food Safety & Standards (Organic Foods) Regulations, 2017 (Regulations)..The petitioner, an organic farmer, has challenged the same as being ultra vires the Food Safety and Standards Act of India (FSSAI), 2006, in addition to being unconstitutional. Advocates D Nagasaila and NS Tanvi appeared for the petitioner..Following initial submissions made on Monday, the Bench of Justices S Manikumar and Subramonium Prasad issued notice, returnable in three weeks..The petitioner has raised concern that the new Regulations effectively compel even small organic food farmers to have their products certified under the National Programme for Organic Production (NPOP) and the Participatory Guarantee System (PGS)..The procedures involved for certification of organic products under the NPOP and the PGS are cumbersome and expensive. However, both certification programmes were originally voluntary..The NPOP was introduced to check on the export of organic products under the Foreign Trade Development and Regulations Act, 1992. The PGS system generally comes into play if at least five farmers with continuous borders form a Local Group..Under the earlier system, it was not mandatory for organic farmers to have their produce certified under either system unless they wish to export their produce or voluntarily opted for such certification..In contrast, the new Regulations now make it mandatory to certify produce as “organic food” under either the NPOP or the PGS before they can be sold..The petitioner argues that there is no clarity as to whether the new Regulations are applicable to individual organic farmers as well..The petitioner has challenged the possible inclusion of individual/small organic farmers under the new Regulations on the following grounds..The inclusion of farmers under the new Regulations is ultra vires FSSAI.Imposing such new mandates on farmers through regulations made under the FSSAI, appears contrary to Section 18 (3) of the Act. Section 18 (3) essentially lays down that farmers are exempt from the application of the FSSAI..Therefore, the Regulations, which were issued under Sections 92, 16 and 22 of the FSSAI, are ultra vires the FSSAI..Further, it is also contended that the Regulations were introduced in violation of Section 93 of the FSSAI, which requires that new regulations should be laid down in both Houses of Parliament. However, the new Regulations have not been laid down before the Rajya Sabha..Regulations suffer from vice of Excessive Delegation .It has been pointed out that the FSSAI does not define “organic food”, nor does it contain any guiding policy regarding the same..On the other hand, it mandates certification under the NPOP, which was introduced relying on the definition of “organic food” as per the Foreign Trade Development and Regulations Act. As for the PGS, the standards are prescribed by the Ministry of Agriculture and not the FSSAI..Hence, while the new regulation was purportedly issued under the FSSAI, it does not regulate any standard that has been covered by the FSSAI..In view of this, the petition argues that the new regulations also suffer from the excessive delegation, and is therefore liable to be struck down as unconstitutional..Arbitrary cut-off date.The new regulations were published in December 2017 and thereafter notified to take effect from July 2018 onwards. However, it would take about 2-3 years to complete the certification process under the NPOP and the PGS. This, in turn, makes it impossible for the petitioner to comply with the regulation on time..“Therefore, even had I applied for my certification on 29.12.2017, the date these Regulations were published, I would still be unable to practically comply with the stipulations of the Regulations before 01.07.2018.”.The petitioner has argued that such an arbitrary cut-off date is violative of Articles 14, 19(1)(g) and 21 of the Constitution of India..Livelihood of Small Organic Farmers at stake .The petitioner goes on to highlight that the Standard Operating Procedures (SOP) issued by the FSSAI compounds the difficulties faced by small organic farmers..As per the SOP, compliance of regulations is ensured by requiring retailers to show records of traceability. The retailers are penalised if traceability cannot be established for the produce they retail from farmers. As per the petitioner, this, in turn, is likely to prompt retailers to pick certified large Organic food companies over small organic farmers who are yet to be certified..“Thus, for retailers, there is no incentive to help the uncertified farmers get certified and in fact, it is a liability to sell the produce of uncertified organic farmers. In such situations, it is financially more viable for these Food Business Operators/retailers to switch to the large organic farmers who have already been certified under the NPOP/PGS – India. This will ultimately be damaging to the small and medium individual farmers as their avenues for sales is drastically curtailed.”.Vague Exemption under Regulation 4 (2).Regulation 4 (2) of the new regulations provides that these regulations shall not apply to “small original producers” or “producer organisations” who directly sell to the end consumer..However, the FSSAI Act does not define a “small original producer” or a “producer organisation”..On the other hand, the NPOP system defines a producer as “an individual farmer/group of farmers/business enterprise practising organic farming or organic processing”..Therefore, the petitioner has argued that there is no clarity on whether individual farmers such as himself would be exempt from the purview of the new regulations..Further, he has also challenged the distinction made between small and large original producers..The exemption itself has been argued to be practically useless since it is unlikely that the petitioner would be able to sell all his produce through direct sales..“Even if I am exempted for direct sale to end consumers as a ‘small original producer’, I state that I would not be able to sell my complete harvest of all crops to direct sales and need to resort to retailers to support my livelihood and therefore, the exemption is not meaningful and I am forced to be certified for the remaining produce. The exemption, therefore, has practically no use.”.In view of the above grounds, the petitioner has prayed that the Food Safety & Standards (Organic Foods) Regulations, 2017 be declared by the Court as ultra vires the FSSAI and unconstitutional..Read the Petition: