Food Legislation BACA (MU) Sem V.pdf
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Food Legislation BACA (MU) Sem. V Prof. Osden Ferreira [email protected] Unit 01 General Laws regarding food 1.1. Meaning and definition of food “Food" means any article used as food or drink for human consumption other than drugs...
Food Legislation BACA (MU) Sem. V Prof. Osden Ferreira [email protected] Unit 01 General Laws regarding food 1.1. Meaning and definition of food “Food" means any article used as food or drink for human consumption other than drugs and water and includes:- a. Any article used in the composition or preparation of, human food, b. Any flavoring matter or condiments, and c. Any other article which the Central Government may declare by notification in the official Gazette. 1.2. Prevention of food adulteration act: 1.2.1. Objectives of The Prevention of Food Adulteration Act: Objectives of The Prevention of Food Adulteration Act, 1954 and Rules, 1955 are as follows: 1. To make provision for the prevention of adulteration of food. 2. Preventing import, manufacture, sale or distribution of adulterated and misbranded food 3. To prevent all types of food adulterations 1 1.3. What is food adulteration? Food adulteration is the process in which the quality of food is lowered either by the addition of inferior quality material or by extraction of valuable ingredients. It not only includes the intentional addition or substitution of the substances but biological and chemical contamination during the period of growth, storage, processing, transport and distribution of the food products. 1.4. What is an adulterant and adulterated food? "Adulterant" means any material which is or could be employed for the purpose of adulteration. Adulterants are added to pure substances to extend the quantity while reducing the quality. Under the previous food laws any food product with lowered or degraded quality used to be defined as Adulterated Food, but under the new laws (FSSAI Act, 2006), the word adulterated food has been termed as Substandard Food, Unsafe Food or Food containing the extraneous matter. 1.4.1. Adulterated food: "Adulterated food"- 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 b. If the article contains any other substance which affects quality. c. If any inferior or cheaper substance has been substituted wholly or in part d. If any constituent of the article has been wholly or in part abstracted so as to affect the quality. e. If the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health; 2 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, of any poisonous substance j. If any coloring matter other than that prescribed is present in the article, or if the amounts of the prescribed coloring matter which is present in the article are not within the prescribed limits. 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 standard. m. If the quality or purity of the article falls below the prescribed standard which does not render it injurious to health 1.5. Food Poisoning: Food poisoning means the illness resulting from eating food or drinking water containing poisonous substances including bacteria, viruses, pesticides or toxins. Symptoms generally begin within 2 to 6 hours and include abdominal cramping, diarrhea, fever, headache, nausea, vomiting, and weakness. 1.5.1. Food additives: Food additive means any of various chemical substances added to foods to produce specific desirable effects. Additives such as salt, spices, and sulphites have been used since ancient times to preserve foods and make them more palatable. With the increased processing of foods in the 20th century, there came a need for both the greater use of and new types of food additives. Many modern products, 3 such as low-calorie, snack, and ready-to-eat convenience foods, would not be possible without food additives. 1.5.2. Food Preservatives: All food products except for the one growing in your kitchen garden have food preservatives in them. Every manufacturer adds a food preservative to the food during processing. The purpose is generally to avoid spoilage during the transportation time. Food is so important for survival, so food preservation is one of the oldest technologies used by human beings to avoid its spoilage. Different ways and means have been found and improved for the purpose. Boiling, freezing & refrigeration, pasteurizing, dehydrating, pickling are the traditional few. Sugar, mineral salt and salt are also often used as preservatives. Nuclear radiation is also being used now as food preservatives. Modified packaging techniques like vacuum packing and hypobaric packing also work as food preservatives. Food Preservation is basically done for three reasons. To preserve the natural characteristics of food To preserve the appearance of food To increase the shelf value of food for storage. 1.5.3. Punishment / Penalty for unsafe food: Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable: I. Where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees; II. Where such failure or contravention results in a non-grievous injury, with imprisonment for a term which may extend to one year and also with fine which may extend to three lakh rupees; 4 III. Where such failure or contravention results in a grievous injury, with imprisonment for a term which may extend to six years and also with fine which may extend to five lakh rupees. IV. Where such failure contravention results in death, with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and also with fine which shall not be less than ten lakh rupees. 1.5.4. Compensation in case of injury or death of consumer: Without prejudice to the other provisions of this Chapter, if any person whether by himself or by any other person on his behalf, manufactures or distributes or sells or imports any article of food causing injury to the consumer or his death, it shall be lawful for the Adjudicating Officer or as the case may be, the court to direct him to pay compensation to the victim or the legal representative of the victim, a sum— a. Not less than five lakh rupees in case of death; b. Not exceeding three lakh rupees in case of grievous injury; and c. Not exceeding one lakh rupees, in all other cases of injury. 1.6. Food Quality and Standards: Food quality is the quality characteristics of food that is acceptable to consumers. This includes external factors such as appearance (size, shape, color, gloss, and consistency), texture, and flavor; factors such as federal grade standards (e.g. of eggs) and internal (chemical, physical, microbial). Food quality in the United States is enforced by the Food Safety Act 1990. In India food standards are maintained as per the FSSAI Act, 2006 (Preceded by - Prevention of Food Adulteration Act, 1954). Members of the public complain to trading standards professionals, who submit complaint samples and also samples used to routinely monitor the food marketplace to public analysts. Public analysts carry out scientific analysis on the samples to determine whether the quality is of sufficient standard. Food quality is 5 an important food manufacturing requirement, because food consumers are susceptible to any form of contamination that may occur during the manufacturing process. Many consumers also rely on manufacturing and processing standards, particularly to know what ingredients are present, due to dietary, nutritional requirements ( kosher, halal, vegetarian), or medical conditions (e.g., diabetes, or allergies). Besides ingredient quality, there are also sanitation requirements. It is important to ensure that the food processing environment is as clean as possible in order to produce the safest possible food for the consumer. A recent example of poor sanitation recently has been the 2006 North American E. coli outbreak involving spinach, an outbreak that is still under investigation. Food quality also deals with product traceability, (e.g., of ingredient, and packaging suppliers), should a recall of the product be required. It also deals with labeling issues to ensure there is correct ingredient and nutritional information. There are many existing international quality institutes testing food products in order to indicate to all consumers which are higher quality products. Founded in 1961 in Brussels, The international Monde Selection quality award is the oldest, in evaluating food quality. During the degustation, the products must meet the following selection criteria, required by the Institute: sensory analysis, bacteriological and chemical analysis, the nutrition and health claims, and the utilization notice. In short, the judgements are based on the following areas: taste, health, convenience, labeling, packaging, environmental friendliness and innovation. As many consumers rely on manufacturing and processing standards, the Institute Monde Selection takes into account the European Food Law. 1.7. Prohibition and restriction: 6 UNIT 02: Role of various authorities 2.1 Food safety & standard acts: The Food Safety and Standards Act (FSS), 2006 is the primary law for regulation of food products. This act also sets up the formulation and enforcement of food safety standards in India. The Food Safety and Standards Authority of India is a statutory body under Food Safety and Standards Act, 2006. The FSSAI functions under the administrative control of the Ministry of Health and Family Welfare. The Act also aims to establish a single reference point for all matters relating to food safety and standards, by moving from multi- level, multi- departmental control to a single line of command. To this effect, the Act establishes an independent statutory Authority – the Food Safety and Standards Authority of India with head office at Delhi. Food Safety and Standards Authority of India (FSSAI) and the State Food Safety Authorities shall enforce various provisions of the Act. The main aim of FSSAI is to: Lay down science-based standards for articles of food To regulate manufacture, storage, distribution, sale and import of food To facilitate food safety. The FSS Act is a bucket for all the older laws, rules and regulations for food safety. The FSS Act took 8 older acts into one umbrella: 1. Prevention of Food Adulteration Act, 1954 2. Fruit Products Order, 1955 3. Meat Food Products Order, 1973 4. Vegetable Oil Products (Control) Order, 1947 5. Edible Oils Packaging (Regulation) Order 1988 6. Solvent Extracted Oil, De- Oiled Meal and Edible Flour (Control) Order, 1967 7. Milk and Milk Products Order, 1992. 7 2.2. Licensing (Basic license required for food service establishment): FSSAI issues three types of license based on the nature of food business and turnover: 1. Registration: For Turnover less than ₹12 Lakh 2. State License: For Turnover between ₹12 Lakh to ₹20 Crore 3. Central License: For Turnover above ₹20 Crore 2.3. Role of management 1. The Food Business shall ensure that technical managers and supervisors have appropriate qualifications, knowledge and skills on food hygiene principles and practices to be able to ensure food safety and quality of its products, judge food hazards, take appropriate preventive and corrective action, and to ensure effective monitoring and supervision. 2. The management shall provide and maintain documented standard operating procedure for FSMS systems compliance and its supervision at site through records/ checklists on routine basis to control any possible hazards throughout the supply chain. 3. Commitment from management is essential to communicate the importance of producing safe food, both for the consumer and the business. Managers should continually improve the effectiveness of the food hygiene systems in place by: a. Ensuring that roles and responsibilities are clearly communicated in the food business; b. Ensuring the availability of resources; c. Maintaining the integrity of the food hygiene system when changes are planned and implemented; 8 d. Verifying that controls are working and documentation is up to date; e. Ensuring the appropriate training and supervision is in place for personnel; f. Ensuring compliance with relevant statutory and regulatory requirements; and g. Enable a strong food safety culture by demonstrating commitment to providing safe and suitable food and encouraging appropriate food safety behaviors. 4. All personnel should be aware of their role & responsibility in protecting food from contamination or deterioration. Training needs identification to be done for all food handlers and accordingly training to be organized. 5. Training should be given to personnel responsible for monitoring and measurements and corrective actions in the food safety management system, supervisors whose activities have an impact on food safety and internal auditors. Periodic assessments of the effectiveness of training should be done. 6. Annual training calendar should be prepared covering all relevant topics pertaining to the food business (both behavioral and functional) with an objective to cover all food handlers in a phased manner. 7. All food handlers shall be instructed and trained in food hygiene & food safety aspects along with personal hygiene requirements commensurate with their work activities, the nature of food, its handling, processing, packaging, storage, service & distribution. Induction training (for new employees) and refresher training (for existing employees) should be conducted. 8. Training programs shall be routinely reviewed & updated wherever necessary. Systems shall be in place to ensure that food handlers remain aware of all procedures necessary to maintain the safety & suitability of food. Records of training shall be maintained. 9 2.4. Role of food safety officer & auditor: 2.4.1. Powers of safety officer and auditor: The following are powers of safety officer and auditor 1. Take a sample 2. Seize any article of food 3. Can enter and inspect any place 4. May destroy, deteriorated, perishable product after giving notice in writing 5. Food Safety Officer may seize any article of food and books of account or other documents found in the position of manufacturer, distributor and dealer where the position of adulterant was found 6. In case of non-availability of the FBO, the FSO may seize the adulterant food and seal the premises for investigation after taking a sample of such adulterant or food for analysis 7. May cause a person to be examined by a qualified medical professional duly authorized by the Designated Officer 2.4.2. Duties of safety officer and auditor: The following are Duties of safety officer and auditor 1. Inspect all licensed units as frequently as may be prescribed by the Designated Officer; 2. To verify/satisfy the conditions of licenses are being complied and report to the Designated Officer; 3. Procure sample and send for analysis in case contravention, surveillance; 4. Investigate any complaint in respect of any contravention of the provisions of the Act; 5. To maintain a database; 6. To recommend issue of improvement notices; 10 7. To maintain a record of all inspections made and action taken by FSO; 8. Make inquiries and inspections as may be necessary; 9. To stop and inspect any vehicle suspected to contain any unsafe food; 10.Carry out food safety surveillance to identify and address the safety hazards; 11.Respond to incidents of food poisoning in his area and to send report to the Designated Officer; 12.Preparation of Food safety plans for Panchayat and Municipalities; 13.To detain imported packages which are suspected to contain articles of food, the import or sale of which is prohibited; 14.To coordinate and facilitate the introduction of food safety systems; 2.4.3. Sampling of food for analysis: 1. Obtain signature from one or two persons in all forms and documents, 2. Give notice in writing then and there of intention to have the sample 3. Notice to be given in Form V (a) 4. After paying the cost the take in clean dry bottles of sample take in clean dry bottles or jars or in other suitable containers 5. Divide into four parts or take four already sealed packages and mark and seal properly label and properly address the parcel. 2.4.4. Labeling of the samples: The label shall bear: 1. Code number of the sample 2. Name of the sender with his official designation 3. Date and place of collection 4. Nature of articles being sent for analysis 5. Nature and quantity of preservative, if any, added to the sample In case of Ag-mark the label shall bear: 11 1. Grade 2. Ag-mark label No./Batch No. 3. Name of packing station. 2.5. Role of food analysts: 1. A Purchaser of food article may, if he so desires, have the article analyzed by the Food Analyst according to the procedure notified by the Food Authority. 2. The Purchaser shall pay the prescribed fee to the Food Analyst for carrying out the analysis. 3. The Food Analyst shall analyze or cause to be analyzed the article of food sent to him for analysis. In analyzing the article of food, the Food Analyst shall follow such instructions and shall adhere to such procedures as adopted by the Food Authority from time to time. The report of analysis shall be signed by the Food Analyst. 4. The Food Analyst shall send to the Purchaser his report on analysis of the article of food and if the finding of the report is to the effect that the article of food is adulterated/misbranded/contaminated or does not conform to the standards prescribed under the Act or the Regulations, the Food Analyst shall also send his report in triplicate, to the Designated Officer of the area in which the article of food was purchased, besides sending a copy of the Report to the Purchaser. 5. The report of the Food Analyst shall be sent within 14 days of the receipt of the article of food for analysis 6. In case the Food business operator from whom the sample has been taken desires to have the fourth part of the sample analyzed, he shall request the Food Safety Officer in writing to send the sample to any NABL accredited/ FSSAI notified laboratory for analysis under intimation to the Designated Officer 12 7. Provided that the cost of testing by the accredited lab will be borne by the Food Business Operator 8. Provided further that the Accredited lab where the Food Safety Officer will send the sample, should be within the state or the neighboring state wherever available 2.6. Role of adjudicating officer: The role of Adjudicating Officer (AO) are as follows: 1. The AO will have the powers of a civil court and all the proceedings before him shall be deemed to be judicial proceedings within the meaning of section 193 and 228 of the Indian Penal Code. 2. The AO while adjudging the quantum of penalty shall have due regard to the following: The amount of gain or unfair advantage(wherever possible to quantify) due to contravention. The amount of loss caused or likely to cause to any person due to contravention The repetitive nature of contravention. Whether contravention is knowingly or unknowingly Issue direction to a person found guilty of an offense, for taking corrective action to rectify the mistake or destruction of such an article of food. Direct offender to pay compensation to victim or representative of victim in case of injury or death of consumer. Order for cancellation of license, recall of food from market, forfeiture of establishment and property. Issue prohibition orders. 2.7. Ethical responsibilities of service establishment: Ethics is about what one does because it's right, even when not required. 13 2.7.1. Food and dining: By serving alcohol one is facilitating addiction, drunk driving, domestic abuse, and ruined lives. One should try not to push alcohol, see that one is not serving alcohol to youngsters who are not old enough to drink, one should cut off alcohol if people appear to be getting drunk. Try to serve people healthy foods, not too much salt, sugar, calories, fat etc. Be respectful of cultural and culinary traditions. Try being honest about the ingredients – Not calling organic for something which is not. Buying quality ingredients 2.7.2. Operations: Composting, recycling, proper oil disposal, reducing food waste as well as non-food waste, limit power consumption 2.7.3. Safety: Not storing flammables, and not using the emergency exit for storage 2.7.4. Customers: Intervene when abusive or dangerous behavior is seen Watch out for unlawful practices like bribing among staff members Do not turn away people, or make them feel unwelcome, to cultivate a trendy, upscale, exclusive image Serve poor, unkempt, otherwise marginalized people the same way as other customers, Do not discriminate. 2.8. Garbage disposal: 14 1. Food waste and other waste materials shall be removed periodically from the place where food is being handled or cooked or manufactured to avoid building up. A refuse bin of adequate size with a proper cover preferably one which needs not be touched for opening shall be provided in the premises for collection of waste material. This shall be emptied and washed daily with a disinfectant and dried before next use. 2. The disposal of sewage and effluents (solid, liquid and gas) shall be in conformity with requirements of Factory / Environment Pollution Control Board. Adequate drainage, waste disposal systems and facilities shall be provided and they shall be designed and constructed in such a manner so that the risk of contaminating food or the potable water supply is eliminated. 3. Waste storage shall be located in such a manner that it does not contaminate the food process, storage areas, and the environment inside and outside the food establishment and waste shall be kept in covered containers and shall be removed at regular intervals. 4. Periodic disposal of the refuse / waste should be made compulsory. No waste shall be kept open inside the premises and shall be disposed of in an appropriate manner as per local rules and regulations including those for plastics and other non-environment friendly materials. 5. All hotels and restaurants shall, facilitate collection of segregated waste in separate streams, handover recyclable material to either the authorized waste pickers or the authorized recyclers. 6. The bio-degradable waste shall be processed, treated and disposed of through composting or bio-methanation within the premises as far as possible. The residual waste shall be given to the waste collectors or agency as directed by the local body. 15 Unit 03 Licenses and contracts 3.1 Liquor license and types: A liquor license is a permit to sell alcoholic beverages. States don‘t want just anyone selling liquor, hence is the reason they require restaurants and businesses to apply for a liquor license. Purchasing, possessing, transporting, and consuming liquor without a valid permit is an offense under the Bombay Prohibition Act, 1949. In Mumbai the excise department issues license for buying and selling of Liquor There are three types of licenses given for foreign liquor by the government is as follows: FL 1- permits for purchase of liquor directly from the distilleries and sale to FL2 or FL3 license holders. FL 2- permit for purchase of liquor directly from the FL1 license holders and sale to the local public but can‘t sell liquor to FL3 license holders. FL 3- permit for purchase of liquor directly from the FL1 but not from FL2 license holders and sale to all.. This license is generally given to the hotel owners. FL4: Permit for club E: Permit for beer bar E-II: Permit for wine bar FL/BR-II: Permit for beer Shoppe 3.2 Procedure to acquire liquor license: Following is the procedure to acquire a liquor license: A liquor license should be applied for as early as possible, as to get an approval for a liquor license it takes time (in some places as long as a year) 16 The appropriate form has to be filled and required documentation needs to be provided The application will contain details about one’s business and applicant’s personal background Details of age, business experience, and a clean personal record may affect the state‘s decision to grant a license. A number of important documents need to be included in the application. These include: a certificate of incorporation, a partnership agreement, company‘s constitution, a copy of proposed food menu, photos or drawings of the exterior of the building and a floor plan of the interior, a code compliance certificate, a copy of the title certificate for the premises, etc. Liquor licenses should be renewed annually, which requires payment of renewal fees annually. 3.3 Off premises or off site premises: The temporary club license or party permit fees for bigger parties (more than 100 people) is Rs15,000. But smaller parties (below 100 people) cost Rs10,000. For temporary club licenses for liquor parties in smaller towns, such as Navi Mumbai, where the population is below 20 lakh, the mandatory license will cost Rs10,000 for above 100 members and Rs7,000 for below 100 members. As per excise department rules, the FL-4 license is needed to host a private liquor party in a flat or at a resort that presently costs Rs.13,000 across cities in the state. Consumers must have this license even if they are drinking with friends in an apartment or a house party organizer can be booked for illegal possession of liquor if he does not have permission to host the party. While only if a few friends are together, the consumer should at least have a Rs5 daily drinking permit. 17 License fee for permit rooms is Rs.544,000 and that for beer shops is Rs.150,000. 3.4. Procedure to acquire liquor license for guests: 3.4.1. License for purchasing, consuming and transporting alcohol: If a person in Maharashtra buying alcohol needs to be a major (i.e. above 18); as per Bombay Prohibition Act, 1949 Section-18. However he cannot consume alcohol, because the consumption age in Maharashtra is 25 (as per Bombay Prohibition Act, 1949- Part VI-A Rule 70D). If an individual wants to buy alcohol he first needs to get a license from the government. He needs to show that license to the vendor before making a purchase. A person is allowed to possess only 12 units of alcohol at a time. One unit of alcohol (10ml) is the equivalent to: A single measure of spirits (ABV 37.5%); Half a pint of average-strength (4%) lager; Two-thirds of a 125ml glass of average-strength (12%) wine; Half a 175ml glass of average-strength (12%) wine; A third of a 250ml glass of average-strength (12%) wine The state excise department has launched an online portal ‘stateexcise.maharashtra.gov.in‘ to grant liquor consumption permits. The permit could be obtained by simply keying one’s Aadhar Card number on the website or the app. A digital permit will be provided within a few minutes of the application. The applicants can even check the application status online. Those applying for liquor permits must be aged 25 and above. A one-day drinking for foreign liquor costs Rs 5, country liquor costs Rs 2 whereas the annual permit costs Rs 105 and a lifetime one costs Rs 1,005. One can apply for only one permit in a day. Earlier, 18 applicants needed to go to the excise office to submit documents and pay fees, for getting the drinking permits. 3.5 Liquor legislation in India: Liquor legislation is different in different states in India. 3.5.1 Prohibition: Alcohol prohibition in India is in force in the states of Gujarat, Kerala, Bihar, and Nagaland and in the Union Territory of Lakshadweep. All other Indian states and union territories permit the sale of alcohol. 3.5.1.1. Gujarat: Gujarat has a law in force that forbids the manufacture, storage, sale and consumption of alcoholic beverages. The legislation has been in force since 1 May 1960 when Bombay State was bifurcated into the states of Maharashtra and Gujarat. The Bombay Prohibition Act, 1949 is still in force in both states; however the licensing regime in Maharashtra is quite liberal with granting licenses to vendors and traders. Gujarat is the only Indian state with a death penalty for the manufacture and sale of homemade liquor that results in fatalities. The legislation is titled the Bombay Prohibition (Gujarat Amendment) Bill, 2009. The legislation was prompted by numerous deaths resulting from the consumption of methyl alcohol. Many restaurants have permits to sell alcohol if they are a part of four or five star hotels. Any outsider visiting Gujarat can buy liquor from the authorized liquor shops by showing his/her travel tickets and residence proof. This is the simplest way to get liquor for outsiders as of today. An outsider can get one liquor bottle or 750 ml in a week or 10 beer cans per week for a period of four weeks. 3.5.1.2. Bihar: 19 Bihar government announced that alcohol would be banned in the state from 1 April 2016. On 25 October 2016, the Bihar Government decided to renew liquor licenses of canteens in cantonment areas, military and air force stations for 2016-2017 in the "interest of soldiers". 3.5.1.3. Kerala: Liquor bars in Kerala had to renew licenses every year; the state government did not license any bar on 31 March 2014, resulting in the closure of 418 bars. However, sale of alcohol continued to be permitted in 5-star, 4 star and three star hotels. Toddy was continue to be legally sold, and toddy shops were permitted to operate as earlier. In 2016 new Chief Minister of Kerala said their studies showed total ban is not applicable but they will enforce on regulating alcohol consumption. The proposed plan is to regulate alcohol consumption using Aadhaar cards to a maximum of 14 units per week. 3.5.1.4. Lakshadweep & Nagaland: Lakshadweep is the only union territory that bans the sale and consumption of alcohol. Consumption is permitted only on the island of Bangaram. Bangaram is an uninhabited island, but the Bangaram Island Resort has a bar. The Nagaland Liquor Total Prohibition Act (NLTP) banned the sale and consumption of alcohol in 1989. 3.5.2. Dry days: Dry Days are specific days when the sale of alcohol is prohibited. Dry Days are fixed by the respective state government. Most Indian states observe dry days on major religious festivals/occasions depending on the popularity of the festival in that region. National holidays such as Republic Day (26 January), Independence Day (15 August) and Gandhi Jayanti (2 October) are usually dry days throughout India. Dry days also depend on the establishment selling alcohol. For example, generally 20 5-star hotels do not have to observe all the dry days that liquor stores and small bars may have to. Dry days are also observed on and around voting days. National dry days also occur during Election Commission of India-ordained voting and result days. 3.5.3. Legal age for drinking: The legal age for drinking is different in different states. In Maharashtra it's 18 years for wine, 21 years for beer and 25 years for any other liquor. Minimum drinking age in different states / UT: State / UT Min. age State / UT Min. age Ladakh 18 Andaman & Nicobar Is. 21 Andhra Pradesh 21 Arunachal Pradesh 21 Assam 25 Bihar Illegal Chandigarh 25 Chattisgarh 21 Dadra & Nagar Haveli 21 Daman & Diu 21 Delhi 21 Goa 18 Gujarat Illegal Haryana 18 Himachal Pradesh 18 Jammu & Kashmir 21 Jharkhand 21 Karnataka 21 Kerala 21 Lakshadweep Illegal Madhya Pradesh 18 Maharashtra 25 Manipur Illegal Meghalaya 25 Mizoram Illegal Nagaland Illegal Odisha 21 Pondicherry 18 Punjab 25 Rajasthan 18 Sikkim 18 Tamil Nadu 21 21 Telangana 21 Uttar Pradesh 18 Uttarakhand 21 West Bengal 21 List of states / UT with 18 as age for drinking: Goa Haryana Himachal Pradesh Ladakh Madhya Pradesh Pondicherry Rajasthan Sikkim Uttar Pradesh List of states / UT with 21 as age of drinking: Andaman & Nicobar Is. Andhra Pradesh Arunachal Pradesh Chattisgarh Dadra & Nagar Haveli Daman & Diu Delhi Jammu & Kashmir Jharkhand Karnataka Kerala Odisha Tamil Nadu Telangana Uttarakhand West Bengal List of states / UT with 25 as age of drinking: Assam Chandigarh Maharashtra Meghalaya Punjab List of states / UT where drinking is illegal: Bihar Gujarat Lakshadweep Manipur Mizoram Nagaland 22 3.6. Sale of cigarette, cigar and tobacco: 3.6.1. Sale prohibition: Prohibition on sale of cigarettes or other tobacco products to a person below the age of eighteen years and in particular areas is in effect. No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product— To any person who is under eighteen years of age, and in an area within a radius of one hundred yards of any educational institution. Sale of cigarettes or any other tobacco products in certain places or to persons below the age of eighteen years may attract a penalty of Rs. 200/- for the single offense and the offense may be compounded and tried summarily. Ban on sale along with FMCG Maharashtra government has declared ban on sale of tobacco at shops that sell chocolates, chips and other edible items. Under the Cigarette and Other Tobacco Products Act (COPTA), 2003, sale to minors is prohibited. Prohibition of smoking in a public place. No person shall smoke in any public place: In a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made. 3.6.2. Punishment for smoking in certain places: Whoever contravenes the provisions of this rule shall be punishable with fine which may extend to two hundred rupees An offense under this section shall be compoundable and shall be tried summarily 3.7. Business Contracts: 23 Dealing with contracts is part of running all business. One will have a number of business relationships involving some type of contractual commitment or obligation. You may: be a purchaser of goods and services - as a borrower of money, in rental agreements and Franchise agreements be a supplier of goods and services – retailer, wholesaler, independent contractor have a partnering agreement with other businesses – partnerships, joint ventures, consortium. Managing your contracts and business relationships is very important. Contracts can be verbal (spoken), written or a combination of both. Some types of contract such as those for buying or selling real estate or finance agreements must be in writing. The need for and the existence of contracts seems to have grown in recent decades. Back in the old days, there were few written business contracts, and many business and personal deals were done with a handshake. If a problem arose, the two parties could take the issue to court, and a judge would hear the case even if the contract was not put into writing. Today, although a verbal contract is still legal (except for specific situations), most contracts are documented in written form. Contracts have become increasingly detailed these days, and every effort is made to make all possibilities and eventualities clear. Written contracts may consist of a standard form agreement or a letter confirming the agreement. Verbal agreements rely on the good faith of all parties and can be difficult to prove. 24 It is advisable (where possible) to make sure your business arrangements are in writing, to avoid problems when trying to prove a contract existed. Contract structure Contracts may follow a structure that can include, but are not limited to, the following items: Details of the parties to the contract, including any sub-contracting arrangements Duration or period of the contract Definitions of key terms used within the contract A description of the goods and/or services that your business will receive or provide, including key deliverables Payment details and dates, including whether interest will be applied to late payments Key dates and milestones Required insurance and indemnity provisions Guarantee provisions Damages or penalty provisions Renegotiation or renewal options Termination conditions Special conditions Indian Contract Act, 1872: The Indian Contract Act, 1872 prescribes the law relating to contracts in India. The Act was passed by British India and is based on the principles of English Common Law. It is applicable to all the states of India except 25 the state of Jammu and Kashmir. It determines the circumstances in which promises made by the parties to a contract shall be legally binding and the enforcement of these rights and duties. Interpretation of the Indian Contract Act, 1872 1. When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the consent of that other to such act or abstinence, he is said to make a proposal; 2. When the person to whom the proposal is made signifies his consent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise; 3. The person making the proposal is called the "promisor", and the person accepting the proposal is called the "promisee"; 4. When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, such act or abstinence or promise is called a consideration for the promise; 5. Every promise and every set of promises, forming the consideration for each other, is an agreement; 6. Promises, which form the consideration or part, of the consideration for each other are called reciprocal promises; 7. An agreement not enforceable by law is said to be void; 8. An agreement enforceable by law is a contract; 9. An agreement which is enforceable by law at the option of one or more of the parties - thereto, but not at the option of the other or others, is a voidable contract; 10. A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable. 26 Definition of Proposal (Offer): When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the consent of that other to such act or abstinence, he is said to make a proposal. Hence, proposal is synonymous to offer. So, we can say that the above definition of proposal is also valid for offer. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise. Offer is an open invitation by the promisor for the acceptance of the terms and conditions of the undertaking, which when accepted by the promisee becomes binding on both parties and the proposal becomes a promise. Hence the difference between an offer (proposal) and a promise lies in acceptance of the offer (proposal). AGREEMENT A promise or a number of promises that are not contradicting and are accepted by the parties involved is an agreement. An agreement must be socially acceptable. It may or may not be enforceable by the law. An agreement doesn‘t create any legal obligation. An agreement may or may not be a contract. CONTRACT A contract is an agreement that is enforceable by law. A contract is only legally enforceable. A contract has to create some legal obligation. 27 All contracts are also agreements. Essentials of Business Contracts: Essential Elements of a Contract as defined in Section 10 of the Indian Contract Act 1872 1) Agreement - Offer and Acceptance: The parties to the contract should have a mutual understand regarding the subject-matter of the contract. There must be a "lawful offer" and "lawful acceptance" thus resulting in an agreement. The parties must have agreed to the subject-matter in the same sense. 2) Legal purpose: There must be an intention among the parties that the agreement should be attended to by legal consequences and create legal obligation. Agreements of social or domestic nature do not contemplate legal relations. 3) Lawful Consideration: Consideration means 'something in return'. In every legal contract, there must be something in return. An agreement is legally capable to be enforced only when each of the parties to it gives something and gets something. The consideration should not be unlawful, illegal, immoral or opposed to public policy. 4) Capacity to contract: Every person who enters into a contract must be competent. In other words, the person should be of the age of majority, should have a sound mind, and must not be disqualified from any law to which they subject. Minors, lunatics, unsound and intoxicated persons are incompetent to enter into a contract. In case of an exception the minor or lunatic is not personally liable. 5) Consent to contract: All the parties must have agreed upon the subject matter of the agreement in the same sense. Section 14 says that if the agreement is induced by coercion, fraud misinterpretation or mistake, it is said to be "no free consent" and such a contract is voidable and cannot be enforceable by law. 6) Lawful object: If the object in the agreement is unlawful, the agreement is void. 28 7) Certainty: Every agreement of the contract must be certain. If the agreement is not certain or incapable of being made certain, it is void. 8) Possibility of Performance: Every contract must be capable of performance. Otherwise, the agreement is void. An agreement to do an impossible act whether physically or legally, is void. 9) Not expressly declared void: The agreement must not have been expressly declared to be void under the Act. Examples of such agreements are restraint of trade, marriage, legal proceedings and wagering agreements. Such agreements are not enforceable by law. 10) Legal formalities like Writing, Registration etc.: A contract may be oral or in writing according to the Indian Contract Act. In certain special cases the agreement must be in written. In some cases like contracts by companies, selling or buying of shares etc., the contract must be registered. All the above ingredients must be satisfied in every valid contract. It can be noted that all contracts are agreements, but not all agreements are contracts. Types of contracts 1) Valid contract: The Contracts which are enforceable in a court of law are called Valid Contracts. 2) Void contracts are unenforceable by law. Even if one party breaches the agreement, you cannot recover anything because essentially there was no valid contract. Some examples of void contracts include: Contracts involving an illegal subject matter such as gambling, prostitution, or committing a crime. Contracts entered into by someone not mentally competent (mental illness or minors). 29 Contracts that require performing something impossible or depends on an impossible event happening. Contracts that are against public policy because they are too unfair. Contracts that restrain certain activities (right to choose who to marry, restraining legal proceedings, the right to work for a living, etc.). 3) Voidable contracts are valid agreements, but one or both of the parties to the contract can void the contract at any time. As a result, you may not be able to enforce a voidable contract: Contracts entered into when one party was a minor. (The law often treats minors as though they do not have the capacity to enter a contract. As a result, a minor can walk away from a contract at any time.) Contracts where one party was forced or tricked into entering it. Contracts entered when one party was incapacitated (drunk, insane, delusional) 4) Illegal contract: If the contract has unlawful object it is called Illegal Contract. Example: There is a contract between X and Z according to which Z has to murder Y for a consideration of Rs. 10000/- from X. It is illegal contract. 5) Unenforceable contract: A contract which has not properly fulfilled legal formalities is called unenforceable contract. That means unenforceable contract suffers from some technical defect like insufficient stamp etc. After rectification of that technical defect, it becomes enforceable or valid contract. Example: A and B have drafted their agreement on Rs. 10/- stamp where it is to be written actually on Rs. 100/- stamp. It is unenforceable contract. 6) Express contract – Where the offer or acceptance of any promise is made in words, the promise is said to be express. For example: A has offered to sell his house and B has given acceptance. It is Express Contract. 30 7) Implied contract – An implied contract is one which is inferred from the acts of the parties or course of dealings between them. Sitting in a Bus can be taken as example to implied contract between passenger and owner of the bus. 8) Quasi Contract: In case of Quasi Contract there will be no offer and acceptance so, actually there will be no Contractual relations between the partners. Such a Contract which is created by Virtue of law is called Quasi Contract. 9) Executed contract - In a contract where both the parties have performed their obligation. 10) Unilateral contract - In a contract is where one of the parties makes a promise to each other. Ex. a reward of Rs.500/- for finding a lost key. 11) Bilateral contract – It is a contract where both the parties are promising to do or not to do an action. COMMON HOSPITALITY CONTRACTS: Many of the contracts used in the hospitality and tourism industries are very similar to those used in other industries; these include contracts regarding employment, routine facilities and grounds maintenance, equipment purchases, employee insurance, and accounting services, to name but a few areas. There are, however, some unique and very specialized. Franchise arrangement: In a franchise arrangement, the owner of a hospitality facility, (the franchisee) agrees, in exchange for a franchise, to operate their business in a specific manner approved by the franchisor. The actual contracts and agreements utilized in the selection, purchase, and implementation of franchise operating agreements are highly regulated and very detailed. Unless very carefully created and thoroughly read, these intricate agreements can often be misconstrued or misinterpreted by the contracting parties and, as a result, it is important to understand fully their intent and complexity. 31 Management contract: A management contract, or as it is very commonly known, a management operating agreement is created when the owner of a hospitality facility allows another party to assume the day to day operation of that facility. Hospitals, school foodservices, campus dining operations, and business dining facilities are commonly operated under management contracts. Hotels, from the smallest to the largest, can also be operated in this manner. In an operating agreement (management contract) the facility owner allows the management company to make the operational decisions that are necessary for the facility to effectively serve its clientele. Typically, a management contract will set forth, in great detail, the period that the agreement will be in effect, the payment terms, the responsibilities of each party, and the stipulations by which the arrangement can be ended, as well as a variety of legal and operational issues. These agreements are typically very detailed and, as a result, understanding their basic components as well as areas of possible contention is very important. Banquets event order: Nearly every major event planned at a hotel or special event facility requires a Banquet Event Order or BEO, which is a contract that outlines every detail of the event. The agreement is often outlined on a form that details selections for food and beverage, audio/visual, room setup, including table centerpieces, staffing requirements, and all other items relating to your event. Included in the BEO is a broken down list of costs you will need to pay. Maintenance Contract: A maintenance contract, defined as the contract between 2 parties which creates the agreement that one party will maintain an asset owned by another party, is common across many industries. Maintenance contracts can exist for equipment, a building, landscape, computers and other information technologies, and more. Usually the service providers give only service support and would charge separately for every part under AMC. However, in some cases, few parts are replaced during the visit by service engineer when it is mentioned in AMC contract that limited parts will be replaced. 32 Group room’s contract: A group rooms contract is developed when an individual or organization requires a large number of hotel rooms. Nearly all hotels rely, to some degree, on group business to help maximize their room sales revenue. The situations in which group rooms are sold can be as varied as an agreement with an airline to provide overnight accommodations for flight crews, to group meetings and conventions, and family weddings. Purchase contracts: It is equally critical to ensure that essential clauses are in place when hospitality managers contract to purchase or receive products and services. Here, too, it is in the best interest of both parties to get all contractual arrangements in writing. Essential clauses of a purchase contract: essentials of purchase contract are as follows. Payment terms: Some of the most significant components of a contract for buying products and services are the payment terms. Required down payments, interest rates on remaining balances, payment due dates, and penalties for late payments are points that should be specified in the contract, and reviewed carefully. Delivery dates: In the case of some delivery dates, a range of times may be acceptable. Thus, when purchasing sofas, a hotel could insert contract language, such as ―within 60 days of contract signing‖ as an acceptable delivery date clause. In a like manner, food deliveries might be accepted by a kitchen ―between the hours of 8:00 A.M. and 4:00 P.M.‖ Completion dates: Completion dates let the contracting parties know when the contract terms end. If the contract is written to guarantee a price for a product purchased by a restaurant, the completion date is the last day that price will be honored by the vendor. It is often difficult to estimate completion dates. This is especially true for construction contracts when weather, labor difficulties, or 33 material delays can affect timetables. Despite these difficulties, completion dates should be included whenever products or services are secured. Performance Standards: Performance standards refer to the quality of products or services received. This can be an exceptionally complex area because some services are difficult to quantify. The thickness of concrete, the quality of carpeting, and the brand or model of a piece of equipment can, for example, be specified. The quality of an advertising campaign, a training program, or interior design work can be more difficult to evaluate. The effective hospitality manager should quantify performance standards in a contract to the greatest degree possible. Licenses and Permits: Obtaining licenses and permits, which are normally required for contracted work, should be the specific responsibility of the outside contracting party. Trades people, such as plumbers, security guards, air conditioning specialists, and the like, who must be licensed or certified by state or local governments, should be prepared to prove they indeed have the appropriate credentials. Indemnification: Accidents can happen while an agreement is being fulfilled. In order to protect themselves and their organizations, hospitality managers should insist that the contracts they execute contain indemnification language similar to this example: Contractor hereby agrees to indemnify, defend, and hold harmless the restaurant and its officers, directors, partners, employees, and guests from and against any losses, liabilities, claims, damages, and expenses, including, without limitation, attorneys‘ fees and expenses that arise as a result of the negligence or intentional misconduct of Contractor or any of its agents, officers, employees, or subcontractors. Nonperformance Clauses: Often, it is a good idea to decide beforehand what two parties will do if the contract terms are not fulfilled. In the case of purchasing products and services, the simple solution may be for the hospitality manager to 34 buy from a different vendor. If, for example, a fresh-produce vendor who has contracted with a group of family-owned restaurants frequently misses delivery deadlines or delivers poor-quality products, the nonperformance solution might simply be to terminate the contract. Language would need to be written into the contract that would address the rights of the restaurant group to terminate the agreement if the vendor consistently performed unsatisfactorily. Dispute Resolution Terms: In some cases, it is a good idea for contracting parties to agree on how to settle any disputes that may arise before they actually occur. To do so, several issues may need to be addressed. The first is the location of any litigation undertaken. This is not a complex issue when both parties to the contract and their businesses are located in the same state Labour laws that provide rights of employees: Traditionally Indian Governments at federal and state level have sought to ensure a high degree of protection for workers through enforcement of labour laws. While conforming to the essentials of the laws of contracts, a contract of employment must adhere also to the provisions of applicable labour laws and the rules contained under the Standing Orders of the establishment. There over fifty national laws and many more state-level laws. The Shops & Establishment Act: The Shops and Establishment Act is a state legislation act and each state has framed its own rules for the Act. The object of this Act is to provide statutory obligation and rights to employees and employers in the unauthorized sector of employment, i.e., shops and establishments. This Act is applicable to all persons employed in an establishment with or without wages, except the members of the employers‘ family. This Act lays down the following rules: Working hours per day and week. Guidelines for spread-over, rest interval, opening and closing hours, closed days, national and religious holidays, overtime work. 35 Employment of children, young persons and women. Rules for annual leave, maternity leave, sickness and casual leave, etc. Rules for employment and termination of service. Factories Act, 1948: All Industrial establishments employing 10 or more persons and carrying manufacturing activities with the aid of power come within the definition of Factory. The said Act makes provisions for the health, safety, welfare, working hours and leave of workers in factories. Minimum Wages Act 1948: The Minimum Wages Act prescribes minimum wages for all employees in all establishments or working at home in certain employments specified in the schedule of the Act. Central and State Governments revise minimum wages specified in the schedule. The Minimum Wages Act 1948 has classified workers as unskilled, semi-skilled, skilled; and highly skilled. Industrial Employment (Standing orders) Act 1946: The Industrial Employment Act requires employers in industrial establishments to clearly define the conditions of employment by issuing standing orders duly certified. Model standing orders issued under the Act deal with classification of workmen, holidays, shifts, payment of wages, leaves, termination etc. Generally, the workers are classified as apprentice/trainee; casual; temporary; substitute; probationer; permanent; and fixed period employees Payment of Wages Act 1936: Under the Payment of Wages Act 1936 the following are the common obligations of the employer: Every employer is primarily responsible for payment of wages to employees. The employer should fix the wage period (which may be per day, per week or per month) but in no case it should exceed one month; 36 Every employer should make timely payment of wages. If the employment of any person is being terminated, those wages should be paid within two days of the date of termination; and The employer should pay the wages in cash, i.e. in current coins or currency notes. However wages may also be paid either by cheque or by crediting in employee‘s bank account after obtaining written consent. Workmen’s Compensation Act 1923: The employer must pay compensation for an accident suffered by an employee during the course of employment and in accordance with the Act. The employer must submit a statement to the Commissioner (within 30 days of receiving the notice) giving the circumstances attending the death of a worker as result of an accident and indicating whether the employer is liable to deposit any compensation for the same. It should also submit an accident report to the Commissioner within seven days of the accident. Industrial Disputes Act 1947: The Industrial Disputes act 1947 provides for the investigation and settlement of industrial disputes in an industrial establishment relating to lockouts, layoffs, retrenchment etc. It provides the machinery for the reconciliation and adjudication of disputes or differences between the employees and the employers. Industrial undertaking includes an undertaking carrying any business, trade, manufacture etc. The Act lays down the conditions that shall be complied before the termination/retrenchment or layoff of a workman who has been in continuous service for not less than one year under an employer. The workman shall be given one month‘s notice in writing, indicating the reasons for retrenchment and the period of the notice that has expired or the workman has been paid, in lieu of such notice, wages for the period of the notice. Employees Provident Funds and Miscellaneous Provisions Act 1952: This Act seeks to ensure the financial security of the employees in an establishment by providing for a system of compulsory savings. The Act provides for establishments of a 37 contributory Provident Fund in which employees‘ contribution shall be at least equal to the contribution payable by the employer. Minimum contribution by the employees shall be 10-12% of the wages. This amount is payable to the employee after retirement and could also be withdrawn partly for certain specified purposes. Payment of Bonus Act 1965: The payment of Bonus Act provides for the payment of bonus to persons employed in certain establishments on the basis of profits or on the basis of production or productivity. The Act is applicable to establishments employing 20 or more persons. The minimum bonus, which an employer is required to pay even if he suffers losses during the accounting year is 8.33% of the salary. Payment of Gratuity Act 1972: The Payment of Gratuity Act provides for a scheme for the payment of gratuity to all employees in all establishments employing ten or more employees to all types of workers. Gratuity is payable to an employee on his retirement/resignation at the rate of 15 days salary of the employee for each completed year of service subject to a maximum of Rs. 350,000. Maternity Benefit Act 1961: The Maternity Benefit Act regulates the employment of the women in certain establishments for a prescribed period before and after child birth and provides certain other benefits. Every women employee who has actually worked in an establishment for a period of at least 80 days during the 12 months immediately proceeding the date of her expected delivery, is entitled to receive maternity benefits under the Act. The employer is thus required to pay maternity benefits and/or medical bonus and allow maternity leave and nursing breaks. The Apprentices Act, 1961: The Main Objectives of Apprentices Act, 1961 is ―Promotion of New Manpower at skills‖. Improvement / Refinement of Old Skills through Theoretical & Practical Training in number of ―Trades & Occupation‖. The Scheme is also extended to Engineers & Diploma Holders. In India the ―Apprentices Act‖ came into force in 1961 and was amended by the Act 41 of 38 1986. It‘s also a ―Statutory Obligation‖ on the part of every Employer covered under the Act. Employees State Insurance Act, 1948: Mission Statement to Provide for Certain Benefits to Employees in case of Sickness, Maternity and Employment Injury & to make the Provisions for Related Matters. Objective of the Act:- The ESI Scheme is an Integrated Measure of ―Social Insurance‖ come to the Life through the ―Employees' State Insurance Act – 1948‖, and is Designed to complete the task of Protecting ‗Employees' as defined in the ESI Act – 1948, against the Hazards of Sickness, Maternity, Disablement or Death due to Employment Injury & to provide full Medical Care to Insured Persons (IP) & their Families. The ESI Act is applicable across the length and breadth of the India. Benefits under the Act to Leave with Average Pay for Twenty Six (26) Weeks, up-to 02 Children's. In Case of more than 02 Children's ML Benefit will be (12) Weeks Only. Employee Can avail ML 08 weeks Before the Delivery or She can avail 26 weeks together immediate proceeding for delivery. 39
