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No coercive action against sellers of plant-based milk products for using dairy terms: HC

The Delhi High Court Friday protected five companies selling plant-based milk products, such as almond and oats milk, from any coercive steps pursuant to FSSAI orders directing action against them, including de-listing by e-commerce food business operators, if they used “dairy terms” for their goods. Justice Rekha Palli, who was hearing a batch of petitions challenging the orders, clarified that the authorities would be free to carry out investigation in accordance with law after due notice to the concerned companies.

The judge issued notice on the petitions by Hershey India Pvt Ltd, Rakyan Beverages Pvt Ltd, Istore Direct Trading Pvt Ltd, Drums Food International Pvt Ltd and Veganarke Enterprises Pvt Ltd, and sought response from FSSAI.

“Till the next date, the impugned orders insofar as they direct coercive action will remain stayed,” the court ordered.

“It is further clarified that…the e-commerce operators will only furnish the report to the competent authority and no action for de-listing will be taken till orders to the contrary are passed by the court,” it added.

In the two orders under challenge, issued on July 15 and September 1, the Food Safety and Standards Authority of India (FSSAI) has ordered all e-commerce food business operators to de-list plant-based milk and other dairy-free products from their platform if they use any dairy terms, such like milk, butter, cheese, as well as directed its enforcement officers to take action against such manufacturers.

“You can ask for a report (from the e-commerce companies) at best… This is not the manner. You will not take coercive action. This can’t go on without anything,” said the judge during the hearing.

Senior counsels for the petitioners – Akhil Sibal and Siddharth Aggarwal- argued that the petitioners were marketing their products after obtaining due licenses from FSSAI and no coercive action could be directed against them unilaterally and without any notice.

Sibal said that for one of the petitioners, the license itself defined the product as “soya milk” and that the products, consumed by those who are lactose-intolerant or have made lifestyle choice, themselves clarify that they are “non-dairy” or “plant-based” so there can be no issue of mislabelling.

Aggarwal raised an objection with regards the discretion given to all e-commerce food business operators to de-list a product which is in violation of the orders under challenge.

“How can e-commerce companies decide what it is FSSAI complaint or not,” he said.

Counsel for FSSAI sought time to file a response to the petitions and said that “nomenclature for milk was very clear” in the law.

Lawyer Abhishek Singh, appearing for National Cooperative Dairy Federation of India, also made submissions on the plea, saying plant-based products ought to be referred as “plant-based beverages” and not “milk”.

In the petition filed for one of the petitioners, Hershey India, through advocate Harsh Gursahani, it is asserted that the directions passed by FSSAI adversely impact the reach of plant-based milk products and violate the fundamental rights guaranteed under Article 14, 19(1)(a) and 19(1)(g) of the Constitution of India, as well as the statutory rights under the Food Safety and Standards Act.

The plea states that in India and internationally, plant-based products are widely recognized as dairy alternatives, using terms such as ‘Soya Milk’, ‘Almond Milk’ and ‘Coconut Milk’ etc.

The matter would be heard next on October 25.

No coercive action against sellers of plant-based milk products for using dairy terms: HC

The Delhi High Court Friday protected five companies selling plant-based milk products, such as almond and oats milk, from any coercive steps pursuant to FSSAI orders directing action against them, including de-listing by e-commerce food business operators, if they used “dairy terms” for their goods. Justice Rekha Palli, who was hearing a batch of petitions challenging the orders, clarified that the authorities would be free to carry out investigation in accordance with law after due notice to the concerned companies.

The judge issued notice on the petitions by Hershey India Pvt Ltd, Rakyan Beverages Pvt Ltd, Istore Direct Trading Pvt Ltd, Drums Food International Pvt Ltd and Veganarke Enterprises Pvt Ltd, and sought response from FSSAI.

“Till the next date, the impugned orders insofar as they direct coercive action will remain stayed,” the court ordered.

“It is further clarified that…the e-commerce operators will only furnish the report to the competent authority and no action for de-listing will be taken till orders to the contrary are passed by the court,” it added.

In the two orders under challenge, issued on July 15 and September 1, the Food Safety and Standards Authority of India (FSSAI) has ordered all e-commerce food business operators to de-list plant-based milk and other dairy-free products from their platform if they use any dairy terms, such like milk, butter, cheese, as well as directed its enforcement officers to take action against such manufacturers.

“You can ask for a report (from the e-commerce companies) at best… This is not the manner. You will not take coercive action. This can’t go on without anything,” said the judge during the hearing.

Senior counsels for the petitioners – Akhil Sibal and Siddharth Aggarwal- argued that the petitioners were marketing their products after obtaining due licenses from FSSAI and no coercive action could be directed against them unilaterally and without any notice.

Sibal said that for one of the petitioners, the license itself defined the product as “soya milk” and that the products, consumed by those who are lactose-intolerant or have made lifestyle choice, themselves clarify that they are “non-dairy” or “plant-based” so there can be no issue of mislabelling.

Aggarwal raised an objection with regards the discretion given to all e-commerce food business operators to de-list a product which is in violation of the orders under challenge.

“How can e-commerce companies decide what it is FSSAI complaint or not,” he said.

Counsel for FSSAI sought time to file a response to the petitions and said that “nomenclature for milk was very clear” in the law.

Lawyer Abhishek Singh, appearing for National Cooperative Dairy Federation of India, also made submissions on the plea, saying plant-based products ought to be referred as “plant-based beverages” and not “milk”.

In the petition filed for one of the petitioners, Hershey India, through advocate Harsh Gursahani, it is asserted that the directions passed by FSSAI adversely impact the reach of plant-based milk products and violate the fundamental rights guaranteed under Article 14, 19(1)(a) and 19(1)(g) of the Constitution of India, as well as the statutory rights under the Food Safety and Standards Act.

The plea states that in India and internationally, plant-based products are widely recognized as dairy alternatives, using terms such as ‘Soya Milk’, ‘Almond Milk’ and ‘Coconut Milk’ etc.

The matter would be heard next on October 25.

Supreme Court dampens govt hope for resumption of mining in Goa

NEW DELHI: The Supreme Court on Wednesday said considerations of faster economic growth could not be the sole criterion for determining the legality of the ban it has imposed on mining activities in Goa, in remarks which immediately hiked the suspense on what it might do with the desperate pleas to allow resumption of mining which has been the mainstay of the state’s economy.

In a sharp rejoinder to the Centre’s stand in Parliament that court-mandated ban on iron ore mining in Goa was adversely affecting the economy, the Supreme Court on Wednesday said judges were oath bound not to uphold privatization policies which breached constitutional principles.

Referring to news items and editorials on the effect of mining ban on the economy, a bench of Justices A K Patnaik, S S Nijjar and F M I Kalifulla said media was concerned only about GDP and economic growth but not about constitutional principles.

“What about right to life guaranteed under Article 21 of the Constitution and the jurisprudence developed on this issue over the years,” the bench asked. It felt that most pro-mining reports appearing in the media were inspired by lobbies working intensely for economic policies and development without co-relating it to rule of law and constitutionality of policies.

The hearing is happening against the grim backdrop of the severe impact of the mining ban on Goa’s economy, and the desperate expectation in the state and the government that the court would consider relaxing the prohibition which, the Centre says, contributed to the worsening of the current account deficit.

Appearing for PIL petitioner ‘Goa Foundation’, advocate Prashant Bhushan agreed with the bench and said the country had witnessed similar developments when the Radia tapes came into public domain. “Lobbyists are giving what is to be written in editorials. We saw it in Niira Radia tapes,” he said.

The bench said, “One editorial, we are not naming it, talks of the (fiscal) environment and the ban on mining. It has absolutely no idea about constitutional principles.” Bhushan said, “GDP has become basic structure of Constitution. All other principles are considered subservient to it.”

The court referred to Directive Principles chapter in Part IV of the Constitution and focused on Article 38, which asks the government to remove inequalities among citizens, and Article 39 providing for a slew of welfare principles, including “operation of the economic system does not result in the concentration of wealth and means of production to the common detriment”, as guiding principles for governance.

Abhorring the mindless imitation of policies adopted by western countries, the bench said, “America does not have Part IV of our Constitution. It talks of Directive Principles. Principles laid down in Part IV are fundamental in law making. In America, these principles are not there. Western policies have to be looked from that angle.

“These principles are not enforceable. Nevertheless, they are fundamental to the governance of the country. It binds the state to apply these principles in law making. We have taken oath to uphold Constitution and not western policy.”

Bhushan said their argument was that stay on mining had brought down the economy. The bench said, “Many senior lawyers are appearing on this side, Mr (K K) Venugopal, Mr (Arvind) Datar, and additional solicitor general Mr (Rakesh) Khanna. Please tell us how are we to read Constitution Part IV. Do we discard it? There is privatization in the country but privatization has to go along with constitutional provisions.

“Or else amend it (the Constitution) or scrap Part IV and then we may go forward. But with Part IV still there, we have to interpret Article 21 in the light of Part IV.”

dhananjay.mahapatra@timesgroup.com

ET Explains: What is Constitution (One Hundred And Twenty-Fourth Amendment) Bill, 2019?


Amendment carves up additional quota for poor not under SC/ST, OBC categories

  • 10% seats reserved for poor in higher education institutions, including private aided or unaided institutions
  • 10% state jobs reserved for poor. Reservation only in initial appointment
  • 10% reservation for ‘economically weaker sections’ will be in addition to the existing reservation

Articles 15 & 16 amended

  • New clause 6 inserted in Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)
  • New clause 6 inserted in Article 16 (Equality of opportunity in matters of public employment)

Govt to notify who is poor

  • ‘Economically weaker sections’ to be defined by the State from time to time on the basis of family income and other indicators of economic disadvantage

Government’s reasoning for bringing in the legislation

  • Poor citizens outside the SC, ST and OBC categories are unable to compete with those who are better off
  • Reservation benefits in line with the directive principles of state policy which call for extending help to the weaker sections

No need for ratification by states as extension of reservation to (non-SC/ST-OBC) poor not listed in Art 368(2)

  • While motions for introduction of Constitution Amendment Bills are adopted by simple majority, a majority of the total membership of the House and a majority of not less than two-thirds of the members present and voting is required for adoption of effective clauses and motions for consideration and passing of these Bills

In Video: EWS Reservation: Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019, explained