“consumer Protection And Food Nutrition Standard In India: Special Reference To Street Vendors”

LAW MANTRATHINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)

“Consumer protection and food nutrition standard in India: Special reference to street vendors” Introduction Abstract Consumer protection and food nutrition standard in India: Special reference to street vendors Author- Avinash Singh Street food are sometimes feed economic preference and a fewer time served the taste preference but the conspicuous fact lies in the nutrition richness and health hazard that may pose more severe retention over the concern of health factor. In era of consumer activism it is noticeable to adhere with the various awareness programs wherein government awakes the people concerning their relative consumer rights and an effective result have being aftermath of this awareness but in case of street food, same consumers are waiving the rights just for cheap and nonetheless unhygienic food being served to them. Although in present paper suggestions to uphold the right of the consumers are proposed vis-à-vis upholding the rights of the vendors who are also in a vulnerable position and are fighting for a decent survival. Present paper deal with the consumer laws and its effect of the rights of the consumer by giving several provisions dealing with the same. Paper seeks to entrust the right of health of consumer as the most significant one and also stated several authorities and instruments that are responsible for maintenance of food standard on both national and international level. After which a factual analysis of the consuming pattern of consumers and conditions of vendors is focused followed by a inclusive suggestive regime that will bring a comprehensive policy framework that will outcome as the regulation being made for standardization of street food. Keyword: Consumer; Health; Street food; Standardization regulation; Vendor

Full paper Consumer protection and food nutrition standard in India: Special reference to street vendors Author- Avinash Singh

1- Introduction Consumer protection and food safety issues are often diluted before the consumer dispute redressal authorities with a hefty grant of compensation. In India, these demands are based upon some material facts that endorse the application of consumer laws over those issues and hence make them compatible for security under consumer protection laws. Consumer protections laws have fragmented in diversified area of action wherein maintenance of food standard is one among others. Wherein in present paper we basically focus on the aspects of mortifying level of nutrition value of food in India and its aftermath on consumer health. Present paper also focuses on several characteristic measures that must be adopted by government to regularize the food nutrition level vis-à-vis taking a stringent protectionist effort to hoard the fundamental rights of vendors. The major hurdle in this endeavor will lie in the fact where the protection of sacrosanct fundamental rights have been granted to these street vendors thorough Constitution of India of their life and livelihood as street shops are their key source of income at the same time the consumers also holds the protection of the constitutional mandate of right to health being proliferated by the right to life having its expressed presence in the constitution. The present suggestive measure that enshrine the right of consumer will be in addition to the recognition of due rights of the street vendors and hawkers. All-pervading and noticeable presences of these street vendors have raised the concern regarding the trade they are involved in and its subsequent effect of the rights of the consumers. None the less Food and Agriculture Organization have recognized the abundance of street vendors as one of

the attribute of urbanization in modern world.1World health Organization bear concerns regarding the legalization of the street vending for increasing the standard of products2 and even certain measures have been already suggested by the WHO to maintain the standard and safety that stretches from preparation, storage to disposal norms after seeking the potential harm to the food standard due to contamination in open environment 3 and the suggested measures could be easily achievable if Indian agencies tend to implement the same in national regulatory structure for which agencies are already present in food standard governance model of country. Therefore present paper neither shelve any right of the vendors by putting an impediment on their source of earning nor suggest any kind of economic burdening but only suggest the government to obligate measure so as to measure the significance of consumersvendor relation. This consumer-vendor relation affects consumer in two ways wherein firstly hampering their statuary consumer right that are unaddressed and secondly to affect the consumer’s constitutional right of health that is entrenched with fundamental feature of right to life. 2- Consolidation of consumer law vis-à-vis street food Consumer protection act is meant to be a socio-economic legal document of whose significant interest is to preserve time and money of consumers who are specific vulnerable class of people being deprived of their rights and need well recognized treatment. There are several rights that were used to be the part of MRTP Act, 1969 that is repealed now and Section 2(r)4 of Consumer protection Act serves the purpose of the specific section 36(A) of MRTP, 1969. As the present act is in addition to any other law in force5 and therefore it has effect even if the suggestions so as provide a framework for regularization of unhygienic food is being made to that effect. Affirmation by apex court is also present to these effect that consumer could use

1

FOOD AND AGRICULTURE ORGANIZATION, STREET FOODS. REPORT OF AN FAO EXPERT CONSULTATION JOGJAKARTA, INDONESIA FAO FOOD AND NUTRITION PAPER NO.46, (1988) 2

STREET-VENDED FOOD: A HACCP-BASED FOOD SAFETY STRATEGY FOR GOVERNMENTS, FOOD SAFETY UNIT, DIVISION OF FOOD AND NUTRITION, WORLD HEALTH ORGANIZATION, WHO/FNU/FOS/96.7, 86 (1996) < http://www.who.int/foodsafety/publications/fs_management/en/streetvend.pdf > accessed on 17 May, 2014 3 THE ROLE OF FOOD SAFETY IN HEALTH AND DEVELOPMENT, REPORT OF THE JOINT FAO/WHO EXPERT COMMITTEE ON FOOD SAFETY 705(1984) < http://apps.who.int/iris/handle/10665/38709> accessed on 17 May, 2014 4

Consumer Protection (Amendment) Act, 1993

5

India, Consumer Protection Act, 1986, Section 3

alternative remedy available in time being in time being in force.6 A buyer of street food is a customer under section 1(d)7 of said act as food items are goods that are purchased in lieu of a consideration and therefore a buyer of edibles from a shop or street outlet is a consumer. In the landmark case of Lucknow Development Authority v. M.K.Gandhi8 it was opined by the apex court that any person who buys any commodity including eatables from any store, fair price shop etc. will be a consumer. Now a complaint is also sustained as section 2(1)(c)9 of said act defines more specifically those complaints wherein either conditions of goods are hazardous or trader knows with due diligence that the goods so offered are of unsafe for consumption. In the case of street vendors they are trapped mostly in former condition while the grocery shop owner is meant to be wrapped in both the criteria. The food being sold by street vendors and grocery shop are of such a quality that impounds the defect in them concluded by section 2(1)(f)10 wherein lack of proper sanitation and potential hazard that amount to the contemptuous health position of the consumer. Therefore the above made brief of core consumer act provisions are intended to signify the present model of consumer affairs that could be brought under the present law but due to higher acceptability of the “street food culture” it is unpractical that consumers would be complain of the low standard street food as government themselves is reluctant for the same. Therefore the succeeding parts of paper will only focus on the suggesting the measures and reasons to adopt a regulatory frame work for the consumers to provide the better nutrition and healthy food in the same street shops.

3- International and national standards scrutinizing health and nutrition issues Indian constitution has emphatically enshrined right to life of which profound interpretation have led to the right of health as the fundamental right and apex court have reached in its aftermath to provide a smooth protection through cases like Paschim Banga Khet Mazdoor Samity case11, Occupational Health and Safety Association case 12, Suresh Kuamr Kaushal case13, Dr. Balram Prasad and othrs. case14 among others.

6

The Consumer and Citizens Forum v. Karnataka Power Corporation, 1994 (1) CPR 130

7

India, Consumer Protection Act, 1986, Section 2(1)(d)

8

AIR 1994 SC 787 India, Consumer Protection Act, 1986, Section 2(1)(c)

9

10

India, Consumer Protection Act, 1986, Section 2(1)(f)

11

Paschim Banga Khet Mazdoor Samity Vs. State of West Bengal, (1996) 4 SCC 37

There have been several statues that govern the health issues and food standards wherein Food Adulteration Act, Coal Mines Regulations, Indian Gas Cylinders Rules apart from the most significantly material act named as Bureau of Indian Standards Act, 1987. These acts basically achieve their concern toward legal aspects related to food safety and standard wherein the Bureau of Indian Standards (hereinafter called as BSI) is engaged towards consumer awareness along with maintain legal standards for products and systems, liaison formation with national and international organizations for conforming objective etc. BIS runs the products certification scheme of which numbers of products ranging from food product to electronic goods are certified but reason for the scheme is voluntary in nature, it limits the scope of smooth implementation. BIS works with the Central Consumer Protection Council and is advised by the Consumer Policy Advisory Committee that works to increasing efficacy in the functioning of the BIS. BIS is also holding a separate department designed for promotion of consumer welfare and grievance redressal reaching an online complaint mechanism and follow-ups related thereto. Apart from BIS there is a Central Committee for Food Standards (CCFS) that advises on the food standards with a Directorate of Marketing and Inspection (DMI) of whose standard is popularly known as “AGMARK” that retains the standardization food products in India.

After raising concern from national legislations and agencies, there are several international Instruments of which India is a party and ratified several among others that show the intention and objective of Indian government that implicates a commitment to develop a new era of consumer protection in realm of health concerns forming a branch of national legislative aim. Codex Alimentarius Commission (Codex) is the international body working under FAO and WHO is steadfast to work for food standardization on international level. Keeping in aim to fulfill the “Codex” obligation, a national body named as Codex Indian work to adhere and extend the objective of the international mandate that is basically a following principles of food standard programs acknowledged by World TradeAgreements on Sanitary and Phytosanitary etc. National Codex installed under The Directorate General of Health Services (Min. of Health and Family Welfare) is responsible for consultation with expert committee of World Health Organization (WHO) and Food and Agriculture Organization (FAO), preparing shadow reports and preparing reports for Indian delegation in the Session on Codex Committee on Methods of 12

Occupational Health and Safety Association v Union of India and others, (2014) 3 SCC 547

13

Suresh Kumar Koushal and another v NAZ Foundation and others, AIR 2014 SC 563

14

Dr. Balram Prasad and others v Dr. Kunal Saha and another, (2014) 1 SCC 384

Analysis & Sampling15. International instruments like International Covenant on Economic, Social and Cultural Rights16 enshrined valuable principles that India have adopted in accordance into its domestic laws17. Article 11(2)(a) of ICESCR categorically states and obligates the member states “To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition…. to achieve the most efficient development and utilization of natural resources.” Food safety standards are much recognized and obligated to be applied in case of food security as it was seen in the present legislation that although managed enforce food security in India but concerns are raising regarding the safety of the food supplies under Food Security Act, 2013 as was similarly alarmed by Former Justice V.R. Krishna Iyer who himself have addressed the matter in the eye of government.18 With this contention and concern of Justice V.R.Krishanan Iyer, a nexus is threaded with our point of submission that if maintenance of food standard is necessary for the national legislation food security is needed and then it is presumed to be mandated provision to add a relatable commitment over government for such standard preservation of food itineraries sold over street outlets and grocery shops. The protocols that are set by the national agencies must focus on the “actual users”19 rather than the non-users of that product. Like in case of making a standard for street food the actual user or consummator of those food items are middle and lower level economically and demographically young population is more attracted toward the street foods and therefore focal point should form the original consummator of street foods or non-certified food items and due adherence must be taken from foreign protocols20. As the present issues sustains over to implement the effort in formation of new regulation or protocol that seek to regulate the unhygienic food and insanitary place of serving the food and various factors attached thereto 15

INDIAN DELEGATION REPORT, 34TH SESSION OF CODEX COMMITTEE ON METHODS OF ANALYSIS & SAMPLING < http://www.fssai.gov.in/Codexindia/India's%20Position/CCMAS/34th%20session/34thsessionccmas.pdf> accessed on 16 may, 2014 16 General Assembly resolution 2200A (XXI) of 16 December 1966, enforced on 3 January 1976 < http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> accessed on 12 May, 2014 17

India, Human Rights Act, 1993, Section 2

18

V. R. KRISHNA IYER, Safety in food security, The Hindu, November 7, 2013, < http://www.thehindu.com/opinion/op-ed/safety-in-food-security/article5322495.ece> accessed on 14 May, 2014 19

Kirti Joshi, Mechanism of Developing and Fixing Food Standards in India, India Science and Technology 2008 accessed on 16 May, 2014

20

Codex. 2001. Code of Hygienic Practice for the Preparation and Sale of Street Foods (Regional Code – Latin America and the Caribbean). CAC/RCP 43-1997, Rev. 1-2001

like health of workers indulged in insanitary environment, licensing of the food shops, mandatory food standard scrutinizing in a particular interval of time, making civil liabilities for non-adherence to the conditions mandated etc. the above said bodies are keenly devoted to maintain the food standard that must have its universal effect rather than its selective effect. In lieu to provide a basic generality based approach, our national agencies must come in mutual support with each other and should form machinery to frame the relevant policy that is suggested by the present paper. As we have uprooted several legislations and policy making bodies favoring the right to health and nutrition and consequently its due relativity with the consumer rights, now we will entrench our research over consuming habits and its implication over the consumers that basically involves the local food centers and street food.

4- Consumer habits and relevancy of ‘food standardization’ In this whole bulk of contentions, the present seek to achieve the factual reasoning of the need of standardization of food products that basically involves the food standard check at grass root level of street food and retail food shops and roadside restaurant that are main source of food consumption in present time. Today despite of an increase in the income of the urban population and lowering down of percentage of below poverty line population21, still 1/10th of the Indian urban population accommodates in the slums.22 As the hawkers and vendors those who seem to form a marginalized group23 is also lagging behind in education sector that presents them a challenge in the field of occupation.24 Also the unregulated market and use of traditional ways 25 have let these street hawkers in a vulnerable position and even create obstacle to cope up with the formal food industry which serves even high standard of food products. Through this factual presentation, author prefers to emphasis on skill that needs to be endowed for street vending and therefore the proper knowledge of hygienic and clean food 21

Planning Commission: Perspective Planning Division. (2012). Report of the Expert Group to Recommend the Detailed Methodology for Identification of Families Living Below Poverty Line in the Urban Areas (pp. 125). New Delhi: Government of India 22

Kirit Patel, David Guenther, Kyle Wiebe, and Ruth-Anne Seburn, Conference Paper on Food Sovereignty: A Critical Dialogue, 82 INTERNATIONAL CONFERENCE YALE UNIVERSITY 2 (2013) < http://www.yale.edu/agrarianstudies/foodsovereignty/pprs/82_Patel_2013.pdf> accessed on 17 May, 2014 23

Id. at 12

24

M. Bapat , Informal Sector Street Food Vendors: A Study in Pune (India). Ottawa, Canada: International Development Research Centre (1990) as cited in Supra note 22 25

K.Hart, Informal income opportunities and urban employment in Ghana, 1 Journal of Modern African Studies 67 (1973)

preparation is predictable to be absent among the class. A study it was found that there is an energy deficiency, stunted growth and other hygiene problems26 that attracts the concern over the food industry at the urban level. In a study over a particular region27, it was found that the number of male students is more consummators of the street food than girls and also the quality and taste override other criteria of selection of street food. Although, there is a mixture of both quality and taste wherein juxtaposition prevails over the preference of one criterion over other because if people are more conscious for taste will leave the other ineffective in nature and hence the objective of food standardizations seems to be frustrated. This demographic pattern shows street vendor food gain popularity among the youth and therefore any policy should also focuses on youth vis-à-vis standardization of street food products. Standard and relative quality of a product is the subjective judgment upon decision of the producer who more adequately deemed to be known about the said standards of the products.28 But at the same time, it is the duty of the producer to effectively draw the legality and sacrosanct standing of its contention and hence to fulfill the implied liability upon him. There was a conscious approach being adopted by United Nations over the health issues and in furtherance to that effect, a high level meeting was conducted in 2011 in New York wherein a declaration regarding Non-communicable disease was adopted wherein measures were suggested to undertake over the rising concerns on health issues in developing countries.29 Commitment to reduce these diseases including high-cholesterol, diabetes etc. were of primarily concern and unhygienic food is the root cause of these diseases that are beyond any regularization of minimum standards for food products being set in India. Therefore Indian commitment for the reduction of these diseases also acts a key factor to adopt a regularization regime on food products of street vendors and groceries shops. While Indian food market are still hunted by “moderate packaging” wherein the case in foreign countries have reached where regulation regarding “excessive packaging” have to be made as

26

Ghosh, S., & Shah, D, Nutritional problems in urban slum children, 41 Indian Pediatrics 682-696 (2004)

27

Sunita Mishra, Food and Nutrition Security in Developing Countries: A Case Study of City of Varanasi in India, Paper prepared for presentation at the 84th EAAE Seminar ‘Food Safety in a Dynamic World’ (2004) accessed on 15 may, 2014 28

29

V.P.Khari v. Colladas Beverages, (1988) 2Comp LJ 47

UN General Assembly, Political Declaration of the High-level Meeting of the General Assembly on the Prevention and Control of Non-communicable Diseases, 24 January 2012 , A/RES/66/2 < http://www.who.int/nmh/events/un_ncd_summit2011/political_declaration_en.pdf?ua=1> accessed on 15 may, 2014

was seen in United Kingdom30 wherein a ban is put over on excessive packaging of materials. Indian standards must also be regularized to make packaging of food available before street or general food outlets accord with a minimum standard so as to protect the nutrition and hygiene of food. Ministry of health in a joint functioning of Ministry of consumer affairs should be made the nodal agency for setting up and settle on regulations being suggested through aid of various other expert groups, agencies, NGO’s and concerned field expertise.

5- Suggestions Minimal standard of packaging of food products will add more credit to the policies of maintaining food nutrition standards made by governance in interest of consumers. Even the street food must be served in a hygienic condition and packaging must be done in the interest of both street vendors and consumers. While the other groceries shops that include general stores, bakeries and other outlets to maintain a minimum level of quality packing. Over and above all, packaging must be eco-friendly and sustainable so that a potential harm to environment should be minimized as use of plastic must be avoided and in necessary conditions the minimum standard of plastic being set by government must be only used for packaging purpose. The product certification scheme that is the systematic procedure to certify the quality and standard of products lies into vain as being its nature of optional. This is vehemently suggested that this system of certification must be mandated in food products whether packed or ready to eat street food so as to uphold a nutritious and healthy living to the inhabitants of country. This certification although should not constrained to the urban area but a significant prerequisite lies for such system to be implemented at rural areas also. This certification scheme should be methodically implemented on pilot project by prioritizing several metropolitan and highly populated urban areas. In the next step, these programs must be implemented on the comparatively lower populated areas and sub-urban areas and towns and final step should reach to the rural areas in the grass root field. By this systematic geographical diversion, the steps taken will be highly successful and evidently overreaching results will be obtained. This process is only a regularization of the street vendors and hawkers those who are indulged in direct consumer satisfaction and are daily infringing various unidentified rights inherited in the 30

Elisabeth Rosenthal, British law spurs scrutiny of excess packaging , The Hindu, December 26, 2010 accessed on 15 may, 2014

legal system. Moreover, the government duty under joint reading of Article 3831 with Article 4732 secures a constitutional obligated practice and adoption of the regulation regarding the food vending business and other non certified food items to improve the nutritional level and health of consumers. These habitual and most easily seen infringements upon consumers have to be replaced by a correctional measure in outline of present recommended regularization. Government needs to disburse policy expenditure more on preparatory based investment rather than the outcome based investment in health sector that expands as the need for a comprehensive policy on the root level of problem that start form unhygienic food and nonnutritious substances rather than investing more on health services. Proper concerns over the ground level problem will automatically the need of health services comparatively and hence will facilitate the other patients to provide efficient heath service. So far as the consumer rights are involved, this pre-regulation would form a pattern laying more emphasis on the securing the event of breach to happen and thus would also help in lowering the burden over courts that will only act after complaint being made to them under consumer act to district forum33, state commission34 and national commission35. Recurrent overburdening of cases may be protected through the move of regularization of the street food vending and other non-certified packaged and non-packaged food items. Protocols must also be adhered as of other nations those who have successfully legislated upon the standardization of street foods and then the foreign policy should be re-structured according to the Indian circumstances. Street food regularization should also contain the guidelines developed by WHO and other United Nation Organizations that have already worked for the setting up due procedures and regulation around the world. 6- Conclusion In the current manuscript the elementary argument surrounds over the health and nutrition enrichment of food products of which the daily consumption is continued within the huge population of India. This unhygienic food consumption will not only lead to many health problems but also burden the health system of our country of which if pre-legalization is 31

Constitution of India,1950, Art. 38

32

Constitution of India,1950, Art. 47

33

India, Consumer Protection Act, 1986, Section 9

34

India, Consumer Protection Act, 1986, Section 16

35

India, Consumer Protection Act, 1986, Section 20

adopted will make the problem diminish up to much extent. Sustenance of interest of both the consumer and vendor will be protected by the setting up of new regularization regime for the upholding the highest quality of product with standardization of same by international agencies. The present passed legislation named as The Street Vendors (Protection of Livelihood And Regulation of Street Vending) Act, 2014 doesn’t seems much adding to the present concern as the subject matters if different from the approach of the present paper. Although for making any regulation regarding the Vendors, the legislation have a role to play but that would be only formal in nature as the original work is to be functioned by the relating authorities stanch to maintain standard of food products. Indian social and political situation will add much intricacy and complexity in means and manner to form and implement the regulation regarding the standardization of street food. Over and above all minutiae requisite for the vital accomplishment of effective regularizations, the principles of common good must be kept on the equivalence next of kin with the constitutional mandates that will attain the realistic approach toward the formation of apposite regulation for common consumer good.

By: Avinash Singh, BBA.LL.B (hons.)/ III year, MATS Law School, Raipur (Chhattisgarh)