Ministry of Health - one more Ban

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Iodized Salt – The Legal Side

The Seventh Schedule of the Constitution of India (Article 246) lists the allocation of subjects to be handled between the Center and the States.

S. No. 18 in List III – Concurrent List reads:

18. Adulteration of foodstuffs and other goods

The Act that governs the Prevention of Foods in India is The Prevention of Food Adulteration Act, 1954 as amended from time to time.

The Rule imposing a ban on non-iodized salt has been made under The Prevention of Food Adulteration Rules, 1955 as amended from time to time, in terms of the powers given to the Central Government under Sec. 23 of the Prevention of Food Adulteration Act, 1954.

For a history of Rule making in respect of Iodized salt see here

It is strange that the rule banning the sale of non-iodized salt is made in the Act that deals with adulteration of foods.

It is for the legal experts to consider whether it is right to make this rule under an Act whose purpose is to make provision for the prevention of adulteration of food.

It is very interesting to note:

1. The PFA Act, is: “An Act to make provision for the prevention of adulteration of food”
2. The term “adulteration’ is defined in detail under Sec. 2(ia) of the Act:

2. Definitions- In this Act, unless the context otherwise requires-

(i) "adulterant" means any material which is or could be employed for the purposes of adulteration;)

(ia) "adulterated" - an article of food shall be deemed to be adulterated-

(a) If the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;

(b) If the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;

(c) If any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;

(d) If any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;

(e) If the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;

(f) If the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption;

(g) If the article is obtained from a diseased animal;

(h) If the article contains any poisonous or other ingredient which renders it injurious to health;

(i) If the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;

(j) If any colouring matter other than that prescribed in respect thereof if present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;]

(k) If the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;

(l) If the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health;

(m)If the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.

Provided that, Where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.

Explanation - Where two or more articles of primary food are mixed together and the resultant article of food -

(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health;

then; such resultant article shall not be deemed to be adulterated within the meaning of this clause;

ANOTHER POINT of interest to be examined is whether Iodine or Iodized salt could fit into the definition of “drug” as defined in Sec. 3(b) of the Drugs and Cosmetics Act, 1940. The relevant portion of the said definition is reproduced below:

Sec.3 Definitions. – In this Act, unless there is anything repugnant in the subject or context –

(b) “drug” includes – (i) all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animals, including preparations applied on human body for the purpose of repelling insects like mosquitoes;

(Italics supplied for emphasis)

If this is so, the implications of this interpretation and its impact on the Rule will require further scrutiny.

A FIT CASE FOR PUBLIC INTEREST LITIGATION (PIL) ?

It is submitted that the Rule concerning Iodized salt may be an appropriate issue for filing a PIL in the law Courts on several grounds:

A. Ultra Vires The Prevention of Food Adulteration Act, 1954

The purpose of the Act is to prevent adulteration of foods. The Central Govt. is empowered to make Rules under the Act only “to carry out the provisions of this Act” Sec. 23(1).

Although Sec. 23(1A) lists several matters in respect of which such rules may be made, it is implied that the Rule on any of these matters needs to be germane to the basic purpose of the Act, i.e. to make provision for the prevention of adulteration of food.

Admittedly, common salt cannot be considered “adulterated” in terms of Sec. 2(ia) because it has not been iodized. Common salt can be considered as adulterated only if it falls under any of the conditions mentioned in Sec. 2(ia). It is also submitted that the Rule does not pertain to any of the matters stated in Sec. 23(1A), as such a Rule can at best only lay down specifications of “Iodized salt” and treat salt that is not in conformity with such specification as “adulterated”. It cannot treat non-iodized salt as adulterated.

Consequently, any rule that has the effect of prohibiting the sale/use of common salt will be clearly Ultra Vires the PFA Act.

B. Ultra Vires the Constitution of India

The Rule, in effect, prohibits the use of common salt by providing that no salt that is not iodized can be offered for sale for direct human consumption.

This is violative of the fundamental freedom enshrined in the Constitution. The prohibition does not meet the test of reasonable restriction because:

1. It prohibits use of common salt for human consumption absolutely and deprives a person of the freedom and the right to choose
2. In order to ostensibly benefit the Iodine deficient population, it forces the entire population to consume Iodized salt although the majority of the population (nearly 70%) DOES NOT NEED to take additional quantities of Iodine.
3. In making Iodized salt consumption mandatory, it imposes an additional economic burden on the consumers without justification, in particular for those who are not in need of additional intake of Iodine.
4. The Rule ignores the possible adverse effects of excess Iodine intake on a continuous basis and, therefore, unreasonably exposes the population to risks of Iodine Excess Disorders.

C. Implied Undertaking of compensation

The introduction of a Rule that effectively makes it mandatory to consume Iodized salt as opposed to common salt implies that the Government undertakes to compensate anyone suffering from any adverse effects from consumption of excess Iodine. This proposition arises from the following:

1. The Government is presumed to be aware of the potential risks from excess intake of Iodine on susceptible persons as the scientific literature and W.H.O. statements recognize the same. It is making this Rule even when aware of the risks.
2. It is forcing the majority of the population to take excess Iodine that they do not need
3. It is denying the opportunity to a person to make an informed decision on whether or not to take excess Iodine, which may not be needed.

Based on the above, the conclusion is clear that the Government is ready to accept responsibility for any adverse consequences of the Rule. Therefore, it would be open to an individual who suffers adverse effects of excess Iodine intake after introduction of the Rule to make a claim on the Government for compensation or even damages in respect of the same. The responsibility could also lie on the State Government for their tacit acquiescence to this Rule.

It would be interesting if consumer associations or others could develop a legal basis for seeking redress in public interest.