FSSAI tightens noose around E-Commerce FBOs on misuse of ‘Health Drinks’ tags

The Food Safety and Standards Authority of India (“FSSAI”), responsible for fixing food standards and regulating and monitoring the manufacturing, import, processing, distribution and sale of food and ensuring safe and wholesome food for consumers, issued an advisory dated 28^th March 2024 to all E-commerce Food Business Operators (“FBOs”).

Any and all e-commerce undertakings/ businesses operating in the digital marketplace that are carrying out activities related to the manufacturing, processing, packaging, storing, transportation, distribution of food and import of food including engaged in the sale of food and food ingredients have been called to action under the said advisory.

According to the advisory it has come to the attention of the FFSAI that several e-commerce platforms were incorrectly categorizing and mis-labelling certain products (including dairy, cereal based beverage mixes and malt-based beverages) and selling them on their platform under the category of ‘Health Drink’ or ‘Energy Drink’.

The FSSAI has clarified that the term ‘Energy Drink’ is only permitted to be used in respect of products categorized under the category 14.1.4 Water-based flavored drinks, including “sport”, “energy or “electrolyte” drinks and articulated drinks, specifically 14.1.4.1 – Carbonated water-based flavored drinks & 14.1.4.2 – non-carbonated water-based flavored drinks, including punches and ades, of the FSSAI’s food category system (FCS), which  is a tool created by the FSSAI for simplifying and reporting food additive uses by categorizing food items into classes and sub-classes. It is further mentioned that ‘Energy Drinks’ are required to comply with the specific standards for Carbonated and Non-Carbonated caffeinated beverages under sub-regulation 2.10.6 (2) of the FSS (Food Product Standards and Food Additives) Regulations, 2011.

The FSSAI further explained that ‘Health Drink’ has not been defined nor any standards been prescribed for ‘Heath Drinks’ anywhere under the Food Safety and Standards Act, 2006 (“FSS Act”) or the rules and regulations made thereunder.

In view of the above, the FSSAI, in pursuance of its mandate, has directed all e-commerce Food Business Operators to remove and de-link all drinks and beverages that are under the purview of the FSS Act which have been miscategorized on their website and to place products sold on such e-commerce platforms in appropriate categories as provided under the FSS Act and rules and regulations made thereunder.

The FSSAI’s advisory puts emphasis on the need to enhance clarity and transparency in the nature and properties of food products being marketed and sold on e-commerce platforms and the importance of accurate product categorization and labelling allowing consumers to make informed choices without being misled.

(This Article is solely for information purposes, does not constitute legal or professional advisory and should not be relied upon or used as a substitute for legal advice from attorney.)

About the Authors: Jayshree Navin Chandra, Senior Partner at ZEUS Law, has been a practicing lawyer since 2001 with extensive corporate and transactional advisory experience. She advises and represents clients ranging from Fortune 500 companies to start-ups as well as Central and State Government departments and public bodies in a wide range of domestic and cross border transactions, across industries in practice areas including Corporate and Company Law, M&A and Joint Venture, Private Equity, FDI & FII, Real Estate and Infrastructure, Data privacy and protection, Intellectual Property & Commercial Law Advisory.

Ms. Nitika Bakshi is a Senior Associate at ZEUS Law and works in the Corporate and Commercial practice vertical.

ZEUS Law Associates is an ISO certified full service corporate commercial law firm with a team of dedicated and experienced lawyers well versed in handling domestic and cross border transactions across sectors, jurisdictions and regulatory landscapes. The firm’s practice areas include Corporate and Company Law, M&A and Joint Venture, Private Equity, FDI & FII, Real Estate and Infrastructure, Intellectual Property & Commercial Law, Litigation, Alternate Dispute Resolution, Indirect Tax and NRI Services.