FSS Act 2016 provides for a Food Category System (FCS) under Appendix- A to FSS (Food Product Standards and Food Additives) Regulations 2011 for the classification of food items into broad categories. One such category is:

14.0 Beverages, excluding dairy products:

14.1.4.   Water-based flavored drinks, including sports, energy or electrolyte drinks and articulated drinks.
14.1.4.1  Carbonated water-based flavored drinks
14.1.4.2  Non-carbonated water-based flavored drinks, including punches and Ades
14.1.4.3  Concentrates (liquid or solid) for water-based flavored drinks

This category of Food Items is permitted to be sold under the Category of ENERGY drinks. The standards for these drinks are provided under sub-regulation 2.10.6 (2) of the FSS (Food Product Standards and Food Additives) Regulations 2011.

It came to light that certain food products licensed under 'Proprietary Food', such as Dairy-Based Beverage Mixes, Cereal-Based Beverage Mixes, or Malt-Based Beverages, like Bournvita, etc., are being sold as Health Drinks and Energy Drinks on E-commerce websites. This misclassification misleads consumers into believing these products offer health benefits when they might not, as if the product falls under FCS 14.1.4 (supra).

The National Commission for Protection of Child Rights (NCPCR), a statutory authority with a mandate to protect and promote child rights, conducted an inquiry under Section 14 of the CPCR Act, 2005, concerning the promotion of products for children on e- commerce platforms and other mediums. The inquiry concluded that “there is no Health Drink category that is defined under FSS Act 2006 and Rules and regulations made thereunder and objected to such categorisation as ‘Health Drink’. The NCPCR raised this issue with the Ministry of Commerce and the Food Safety and Standard Authority, advising them to take curative measures.

On 28 March 2024, vide RCD-15001/12/2023-Regulatory-FSSAI-Part(1), FSSAIi issued a significant advisory to all e-commerce food business operators (without naming any brand). This advisory highlighted the issue of products licensed under ‘Proprietary Food’ nearest to dairy, cereal, or malt-based beverage mixes being marketed as 'health drinks' or 'energy drinks' on e-commerce platforms. This misleading practice was brought to light, emphasizing the potential harm it could cause to consumers' health perceptions. [Ref: Brands like Bournvita, Maltova, and Horlicks, which have been promoted as health drinks].

Consequently, The Ministry of Commerce, vide its letter dated 10.04.2024ii, also issued a letter to all e-commerce Companies as an Advisory to remove drinks/beverages, including Bourn vita, from the Health Drinks category from their sites/platforms.

This incident emphasises the importance of clear and transparent food labelling regulations to protect consumers from misleading claims. It also underscores the role of regulatory bodies like the NCPCR and the Ministry of Commerce and Industry in ensuring fair practices in the food industry.

Conclusion:

Reading between the lines of the FSSAI advisory, brands like Maltova and Horlicks shall be categorised under FCS 1.0- Dairy products and analogues, excluding products of food categories 2.0.; Bournvita should be categorised under FCS 5.0.-Confectionery, including Chocolate products.

In any case, FSSAI's proactive action, consequent on NCPCR's flagging of the wrong categorisation, has created another dimension to protecting children's interests that may also be considered a consumer protection action in disguise for betterment. NCPCR has done commendable work and started a movement to protect consumers' rights. Moreover, this incident could also raise awareness among consumers about the importance of critically evaluating marketing claims and making informed choices based on accurate information. It emphasises the need for consumers to be vigilant and not solely rely on labels or advertisements when deciding what to purchase.