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

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

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.

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