Nutrition Meets Food Science
Transparency in Rulemaking: Shouldn’t we know how they are made?

Transparency in Rulemaking: Shouldn’t we know how they are made?


It is clearly stated that while framing regulations or specifying standards under the Act, the Food Authority shall take into account – among other things;

  • Undertake risk assessment in an independent, objective and transparent manner; and
  • Ensure that there is open and transparent public consultation… during the preparation and revision of regulations…

The key word in these statements is transparency. Why does the Act mandate transparency in rulemaking? Associated with transparency are; expertise and conflicts of interest.

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Let’s look at ‘transparency’ and ‘conflict of interest’ as it unfolds in a game Indians love most. Cricket’s first issue on conflict of interest arose when accusations were levied at home country umpires as being biased (conflict of interest) allegedly influencing outcomes of matches. To overcome this perception, cricket boards opted for neutral (country) umpires – so that conflicts of interest would be removed. But even neutral umpires made mistakes when declaring LBW decisions, as slow motion TV replays would reveal. What they had dealt with was conflict of interest but not ‘expertise’.  So they called in a third umpire, equipped with “Hawkeye” and ‘Hotspot”; yet a few mistakes were made. Umpires are not infallible and under unconducive circumstances like crowd noise – a “razornick” could be missed. So is the umpire’s ‘expertise’ in doubt? No! It is not. When electronic visuals show the ball’s trajectory narrowly missing the stumps, the umpire’s decision is upheld despite the third umpires review; acknowledging his expertise.

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Conflicts of interest situations arise whenever there is undue influence for a certain pre-determined outcome. It may well be argued that in rulemaking processes, overtly drawing heavily from government funded institutions is likely to lead to favouring a certain point of view, instead of one emerging from the best scientific evidence or technology available. Another kind of conflict arises –and more serious – when outcomes are delivered by compromising principles under the guise of ‘solving problems in a practical way’; yet another is of playing to a gallery. Or when terms of engagement are not laid down (cricketing rules that umpires follow), persons not familiar or experienced with rulemaking provide anecdotal remedies based on ‘personal knowledge’, ‘field experience’ and “in my opinion”.  All these are conflicts – and the validity of outcomes is acceptable only when they are made consistent with principles and due processes required under the Act. Processes – like cricket’s third umpire or the Duckworth- Lewis calculation in rain-interrupted- play are seen publicly; this is transparency. Of course, some may think this is a game while food regulations are a more serious matter. Test this theory of non-transparent decision-making on the cricket field and see the consequences. But let’s move on to seriousness of food regulations.

Transparency reveals conflicts of interest and expertise – or lack of it. Every interest is not a conflict. Interest itself is a prerequisite for expertise. How on earth would one become an expert if one had no interest in the subject? To be transparent is to declare conflicts openly for all to know so that when a reasonable apprehension is stated or raised, it can be dealt with accordingly; exclusion is not the way in dealing with expertise.

Expertise comes in several forms. Industry ‘expertise’ comes from ‘tacit knowledge’ – gathered while doing things, issues and solutions in manufacture, formulations and consumer insights. This is different from formal or explicit knowledge – the kind we learn at institutions. A blend of both tacit and explicit knowledge is required if the best scientific outcomes. In spite of a provision to include an Industry member in Scientific Panels there is an apprehension that they will influence rulemaking. Is institutional science so ephemeral that it cannot overcome scientific inputs from the industry? For the sake of argument if industry scientific inputs (tacit knowledge) are considered a counterpoint to what institutional science (explicit) provides, does not a conflict arise by a biased pre-arrangement to exclude one for the other? Above all their functional role is not to make rules or regulation but to provide scientific inputs.

The Act categorically encourages transparency and limits confidentiality to a request made by a company for data submitted to the Authority.  All other proceedings are to be published. Ironically greater transparency prevailed under the erstwhile PFA 1954 even though such a specific requirement did find mention in the Act.

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Joseph Lewis

A Food Regulatory Consultant,
PhD (Tech) at UDCT, Mumbai

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