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TMI Blog2015 (8) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... aric Acid finds specific mention and can be added as acidulant provided maximum level of use was 600 ppm – Thus Tartaric and Ascorbic Acid was permitted food additive which can be added to alcoholic wines – Petition allowed – Decided in favour of Petitioner. - Writ Petition (L) No. 1712 of 2015 - - - Dated:- 28-7-2015 - V. M. Kanade And B. P. Colabawalla,JJ. For the Petitioner : Mr Iqbal Chagla, Sr. Counsel, Mr Rajesh Batra, Mr Riyaz Chagla Mr R V Talsikar For the Respondent : Mr Pracha Mohammed, Mr T W Pathan Ms Yogita Sing JUDGMENT [Per B P Colabawalla, J. ] 1. Rule. By consent of parties, rule made returnable forthwith and heard finally. 2. The Petitioner Company is in the business of manufacturing, selling and importing various types of alcoholic beverages including established international brands such as Jacob's Creek . It is a Private Limited Company and is an ultimate subsidiary of Pernod Ricard S.A. of France, the world's co-leader in wines and spirits. 3. The Petitioner, by way of the present Petition, seeks an issuance of an appropriate writ for release of its wine products by the brand name of Jacob's Creek, and more parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tartaric Acid, which, according to the authorities under the Food Safety and Standards Act, 2006 (the said Act) is not a permitted ingredient. 6. In this background, Mr Chagla, learned senior counsel appearing on behalf of the Petitioner, submitted that Respondent No.2 has totally misinterpreted the Regulations to contend that Tartaric Acid is not an ingredient permitted under the said Act or the FSSR, 2011 framed thereunder. In this regard, he invited our attention to section 3(1)(k) of the said Act which defines the words 'Food Additive'. He submitted that 'food additive' means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food results, or may be reasonably expected to result in it, or its by-products becoming a component of, or otherwise affecting the characteristics of such food. He thereafter also invited our attention to section 19 which deals with the use of food addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditive. He submitted that in the present case, Tartaric Acid is added to wine as a buffering agent to counter acidic and alkaline changes during storage or processing steps, thus improving the flavour of the wine. Merely because Tartaric Acid did not find place at Row No. 14 in Table 3 of Appendix 'A', does not mean that it is a prohibited ingredient. He submitted that Tartaric Acid is in fact an organic compound and is found in the chemical composition of grapes in its natural form. It was therefore totally incorrect on the part of the authorities to contend that Tartaric Acid was an ingredient not permitted to be added as a food additive in wines, was the submission of Mr Chagla. In these circumstances he submitted that the NOC has been refused to the Petitioner on a totally erroneous basis and the same needs to be corrected by this Court by issuing appropriate writs to Respondent Nos.2 and 3. 8. On the other hand, Mr Pracha, learned counsel appearing for Respondent No.2, submitted that Respondent No.2 has been established under the Food Safety and Standards Act, 2006 with a mandate to lay down science based standards for articles of food and to regulate their manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves, then clearly Respondent No.2 is justified in issuing the rejection letters. 10. Before we deal with the relevant provisions of the Food Safety and Standards Act, 2006, it would be important to note that the said Act was enacted on 23rd August 2006 and various provisions thereof came into force on various dates during the years 2007 to 2010. The Food Safety and Standards Rules, 2011 and the FSSR, 2011 were also framed. Before bringing the said Act into force, it was found that multiplicity of food laws, standard setting and enforcement agencies, pervaded different sectors of food which created confusion in the mind of consumers, traders, manufacturers and investors. Detailed provisions under various laws regarding admissibility and levels of food additives, contaminants, food colours, preservatives etc. and other related requirements had varied standards under these laws. The standards were often rigid and non-responsive to scientific advancements and modernisation. Finding that multiplicity of laws and the enforcement thereof, were detrimental to the growth of the nascent food processing industry and not conducive to effective fixation of food standards and their enforcemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) purpose in the manufacture, processing, preparation, treatment, packing packaging, transport or holding of such food results, or may be reasonably expected to result (directly or indirectly), in it or its by-products becoming a component of or otherwise affecting the characteristics of such food but does not include contaminants or substances added to food for maintaining or improving nutritional qualities; 13. As can be seen from the definition, the words food additive means any substance which becomes a component of, or otherwise affecting the characteristic of food in which it is added, and which is not normally consumed as a food by itself or used as a typical ingredient of the food. It is intentionally added to the food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packaging, transport or holding of such food. However, the definition of food additive does not include contaminants or substances added to food for maintaining or improving its nutritional qualities. 14. Section 19 of the Act deals with the use of food additives or processing aids and reads thus:- 19. Use of food additive or processi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o acids (in amounts not exceeding the Recommended Daily Allowance for Indians) or enzymes (within permissible limits); (iii) substances from animal origin; (iv) a dietary substance for use by human beings to supplement the diet by increasing the total dietary intake. (b)(i) a product that is labelled as a Food for special dietary uses or functional foods or nutraceuticals or health supplements or similar such foods which is not represented for use as a conventional food and whereby such products may be formulated in the form of powders, granules, tablets, capsules, liquids, jelly and other dosage forms but not parenterals, and are meant for oral administration; (ii) such product does not include a drug as defined in clause (b) and ayurvedic, siddha and unani drugs as defined in clauses (a) and (h) of Section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940) and rules made thereunder; (iii) does not claim to cure or mitigate any specific disease, disorder or condition (except for certain health benefit or such promotion claims) as may be permitted by the regulations made under this Act; (iv) does not include a narcotic drug or a psychotropic substance as define ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any name, Sweets, Carbohydrates based and Milk product based, such as Halwa, Mysore Pak, Boondi Ladoo, Jalebi, Khoya Burli, Peda, Gulab Jamun, Rosogolla and similar milk product based sweets sold by any name, Instant Mixes Powders only of Idli mix, dosa mix, puliyogare mix, pongal mix, gulab jamun mix, jalebi mix, vada mix, Rice and Pulses based Papads, Ready-to-Serve Beverages (tea/coffee based only) may contain food additives permitted in these regulations and in Table 2 of Appendix A. (3) Use of additives in Bread, Biscuits - The food products such as Bread and Biscuits, may contain food additives permitted in these regulations and in Table 1 of Appendix A. (4) Use of Food Additives in different foods - The following food products may contain food additives permitted in these regulations and in Table 3 of Appendix A namely :- (i) Dairy based drinks, flavoured and or fermented (e.g. chocolate milk), cocoa, eggnog-UHT Sterilised shelf life more than three months), Synthetic soft drink concentrate, mix/fruit based beverage mix, soups, bullions and taste makers, dessert jelly, custard powder, jelly crustal, flavour emulsions and flavour paste (for use in carbonated and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestering and buffering agents. Unless otherwise provided in these regulations the sequestering and buffering agents specified in column (1) of the Table below, may be used in the groups of food specified in the corresponding entry in column (2) of the said Table, in concentration not exceeding the proportions specified in the corresponding entry in column (3) of the said Table : TABLE Sr. No. Name of sequestering and buffering agents Groups of food Maximum level of use (parts per Million) (ppm) (mg./kg.) (1) (2) (3) (4) 1. Acetic Acid (i) Acidulant, buffering and neutralizing agents in beverages soft drinks Limited by G.M.P. 2. Adipic Acid Salt substitute and dietary food 250 3. Calcium Gluconate In confections 2500 4. Calcium Carbonate As a neutralizer in number of foods 10000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stability of foods. In the Table appended to Regulation 3.1.12, Tartaric Acid finds a specific mention and can be added as an acidulant provided the maximum level of use is 600 ppm. The Note below the said Table clearly states that Tartaric Acid shall not be added to any food meant for children below 12 months. It is therefore reasonable to presume that if the intention was to prohibit the use of Tartaric Acid for any other persons or in respect of any particular food, it would have then so provided clearly. 23. On going through the FSSR, 2011, it is clear that Tartaric Acid can be added to food as an acidulant in the quantity set out in the Table mentioned therein. Merely because the same does not find place in Appendix 'A', Table 3, Row 14 (which deals with alcoholic wines) does not mean that it is a prohibited ingredient. This is clear from Regulation 3.1.1(1) and 3.1.1(4) which clearly states that alcoholic wines is one of the food products which may contain food additives either specified in FSSR, 2011 and Appendix 'A' thereof. It is not in dispute before us that Tartaric Acid would be a food additive as defined in the said Act. We therefore find that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept colour) as defined by PFA/CODEX/JECFA and the limits shall be in accordance with EU guidelines. Paragraph 7.8 of the very same Specifications state that table wines shall also comply with the requirements given in Table 1. Table 1 of these Specifications deal with the requirements for Table Wines and in fact permit Tartaric Acid being used in table wines. Table 1 of these Specifications reads thus:- Table 1 Requirements for Table Wines (Clause 7.8) Sr.No. Characteristics Requirements Method of Test Ref. to CI No. Annex Dry White/Red Sweet White/Red Sparkling Wine 1 2 3 4 5 6 i) ii) iii) Total acids (as Tartaric Acid) g/l Max 10 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Acid can be used as an antioxidant as set out in Regulation 3.1.5(2). This being the case and for the reasons that we have held that Tartaric Acid is a permitted food additive in alcoholic wines, we are of the view that even Ascorbic Acid is a food additive that is permitted to be added to alcoholic wines. 30. In the view that we have taken, we are squarely supported by a decision of another Division Bench of this Court (Coram: S.J. Vazifdar and R.Y. Ganoo JJ) in the case of Parle Biscuits Pvt. Ltd. v/s Food Safety and Standards Authority of India and others. 2013 (2) Mh.L.J. 409 : 2013 (3) Bom.C.R.314. An identical issue, though relating to Lactic Acid, came up for consideration before the Division Bench in the Parle Biscuit's case. The main question that was to be decided before the Division Bench is set out in paragraph 9 of the judgment and reads thus:- 9. As we noted earlier, the main question in this petition is whether the use of the lactic acid in the petitioner's products viz. sugar boiled confectionery is permitted under the said Act, Rules and Regulations. The petitioner does not deny the fact that its products contain lactic acid. The petitioner contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 3.1.12 provides that unless otherwise provided in the regulations, the sequestering and buffering agents specified in column No. 1 of the table set out therein may be used in the groups of foods in the corresponding entries in column No. 2 of the table. Serial No. 8 refers to lactic acid. The corresponding entry in column No. 3 is as acidulants in miscellaneous foods. In view of what we have held earlier, had sugar boiled confectionery been specifically referred to in column 3, it would have been the end of the matter for, in that event, it would be clear that lactic acid is a permissible sequestering and buffering agent in sugar boiled confectionery. The dispute arises, on account of the use of the words miscellaneous foods in column 3 relating to Sr. No. 8 viz. lactic acid. In the context in which it is used, we are of the opinion, that it refers to any items of food. (emphasis supplied) 32. On going through this judgment, we find that the identical argument that was made before us, was also made before the Division Bench in the Parle Biscuit's case. That argument was negated by the Division Bench. Not only are we in respectful agreement with the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round that the product in question before the Division Bench in Parle Biscuit's case was sugar boiled confectionery which was a standardized product whereas in the present case, the alcoholic wines of the Petitioners were a proprietary food as contemplated under section 22 and therefore, product approval was required under the provisions of the Act. We are afraid we cannot accept this argument for the simple reason that this is not even a ground on which the rejection reports have been issued, one of which is at page 52 of the paper-book. The rejection report is addressed to the Respondent No.3 in which it is stated as under:- This office is not in position to issue NOC of the product(s) mentioned above as the result(s) of the inspection / analysis shows that the sample(s) confirm to the specification under the FSS Act 2006 and rules and regulations made thereunder. This is for your information and necessary action please. Remark: The sample does not conforms as the sample contains Acidity Regulator, Tartaric Acid (INS334) which is not permitted as per Appendix A, Table No.3, Row No.14 of FSSR 2011. 35. As can be seen from the rejection report, the No Objection C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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