While we all know what food is intrinsically, today let’s dive into the intricacies and ingredients of the legal dish defined as “Food”. In our last article, we provided an overview of some crucial definitions under the FSS Act. In this article, we will dissect the definition of food in detail to better understand the scope and applicability of the Act.

Food is defined under Section 3 sub-section (1)(j) of the Act as follows:

““Food” means any substance, whether processed, partially processed or  unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances :

Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality.”

Thus, as apparent from the plain reading of the above section, or maybe not so straightforward, food means any substance intended for human consumption. The substance can be (partially)-processed or unprocessed. Food specifically includes the following:

1) Primary Food- is defined under Section 3 (1)(zk)^[1] to include food in its natural form, which is a produce of:

a) Agriculture (farming) or horticulture (gardening)- such as raw wheat, rice, vegetables, grains, and other produce.

b) Animal husbandry- meat, fiber, eggs and other such products.

c) Dairying- milk and milk products.

d) Aquaculture- fish, crabs, and other aquatic organisms

While the said produce needs to be the result of growing, raising, cultivating, picking, harvesting, collection or catching in the hands of a person other than a farmer or fisherman. Thus, raw natural food in the hands of farmers or fishermen is not food as it is treated as property belonging to them and thereby, traded for other purposes as food. However, as soon as the said raw natural produce is in the hands of any other person, it then becomes food covered under Primary Food.

2) Genetically Modified or Engineered Food or food containing such ingredients- is explained under Explanation 2 provided to Section 22^[2] and will be referred collectively to as “GM Food”. It includes both genetically modified or engineered food obtained through modern biotechnology or such food ingredients. It includes even the food or the food ingredients produced from but does not contain any GM food. However, it is pertinent to note that the FSSAI presently does not allow the use of any GM Food in India.

3) Infant Food^[3] (meant for infants between the age of 6 months to 2 years), Packaged drinking water, alcoholic drinks, chewing gum

4) Animals, after preparation or processing, are placed on the market for human consumption.

5) Alcoholic drink(s). 

6) Any substance, including water, used at any stage (manufacture, preparation or treatment) during the preparation of the food. Thereby, including Food Additives as defined under Section 3 (1)(k)^[4], Processing Aids^[5] and other components used in food.

The definition is inclusive (“means and includes”) and comprehensive, covering all possible items within the scope of the term. It is to be noted that the definition also provides a negative list of items which are not considered to be food under the FSS Act, which are:

1. 1. Animal feed.
   2. Live animals (unless placed on the market for human consumption post-processing)- are treated as property.
   3. Plants, before harvesting- which are treated as property.
   4. Drugs and medicinal products- covered under the Drugs & Cosmetics Act, 1940.
   5. Cosmetics- covered under the Drugs & Cosmetics Act, 1940.
   6. Narcotic or psychotropic substances- covered under the Narcotic Drugs and Psychotropic Substances, Act, 1985.

It is also important to note the definition of "Ingredient" provided under the FSS Act in Section 3 (1)(y), to include any substance (including a food additive) used for making the food product and present therein even though in a modified form. It is further pertinent to note that while food products such as organic foods, functional foods, nutraceuticals, health supplements, proprietary food, food for special dietary uses and other kinds of food are left to the Central Government to make rules, until then such products cannot be marketed as food in India.^[6]

The Food as defined under the FSS Act is comprehensive to regulate and provide standards to ensure food safety across the nation. Thus, all substances described above are legally recognised as food and governed under the Act. Therefore, the legal understanding of the definition of "Food" becomes crucial for all players engaged in the food business, consumers and the bureaucracy implementing the Act.

The Legal Culinary Delight

The definition of Food under the FSS Act is a comprehensive definition with room to wiggle the common world scenarios. It primarily defines food to be any substance meant for human consumption. The definition specifically includes food in its natural form (Primary Food^[1]) among others but leaves out the said natural form when it is in the hands of a producer (farmer or fisherman) so as to be traded and protected as commodity/ cattle/ livestock. It also includes Genetically Modified/ Engineered Food^[2], Infant Food^[3], animals placed on the market post-processing, and any substance (including water, food additives^[4], Processing Aids^[5], etc.) used at any stage (manufacture, preparation or treatment) during the preparation of the food. The definition also explicitly excludes cosmetics, drugs, psychotropic substances, animal feed, etc. as food.

The definition is such an umbrella that it not only includes the finished food but also in its definition includes any substance which is used in the manufacturing, processing or treatment of such food. Thus, it becomes decisive to understand food for proper implementation of the Act and for Food Businesses to understand that their responsibility while making food is as vast as the definition of the food encompassed under the Act.

What dish is complete without knowing its ingredients and as such, food ingredient is defined as any substance (including food additive) used to manufacture or prepare the food and is present in the final food as well, maybe in a modified form. Other modern forms of food such as genetically modified/engineered, nutraceuticals, functional food, etc. are kept under the watch of the Central Government and unless rules are formed under the FSS Act such formats remain prohibited in India.^[6] (P.S.- The reason genetically modified or engineered food is still not legal in India)