By Nihit Nagpal & Vaibhav Mehra
Introduction
Intellectual property (“IP”) law and food safety law have traditionally been treated as separate domains, administered by different authorities, under different statutes, and animated by different objects. IP law governs a proprietor’s exclusive rights over a mark and the consequences of its unauthorized use;[1] food safety law governs the safety, labelling and honest presentation of food to the public.[2] The usual assumption is that the two occupy separate compartments. A dispute over a brand belongs before the civil courts under the Trade Marks Act, 1999, while questions of food safety belong to the regulator. That division, however, overlooks an area where the two regimes genuinely meet, because both are concerned at bottom with consumer confusion. When a mark is used to create a false impression about what a consumer is receiving, whether as to the nature of the product or the identity of its source, the same act amounts both to trademark infringement and to a food safety concern.
The point is far from academic. It arises whenever a Food Business Operator (“FBO”) trades under a brand identity it has no authority to use, whether by passing off, counterfeit labelling, or the continued use of a mark after a franchise, licence or supply arrangement has come to an end. In each such case the consumer is deceived about the source of the food rather than its composition, and therefore about the quality controls, hygiene standards and accountability that the brand is taken to guarantee. Our argument is that FSSAI currently holds two positions that cannot stand together, and that its own recent reasoning requires it to treat brand-identity deception as a matter within its mandate under the Food Safety and Standards Act, 2006 (“FSS Act”), rather than one to be left to trademark law.
FSSAI’s Own Reasoning on the Intersection of Trademark and Food Safety Law
A useful starting point is FSSAI’s handling of the “ORS” controversy. In October 2025, it directed that the term “ORS” not be used on food products that did not meet the formulation prescribed by the World Health Organization for Oral Rehydration Salts.[3] It relied on Sections 23 and 24 of the FSS Act, read with the Food Safety and Standards (Labelling and Display) Regulations, 2020, taking the view that the use of a recognised clinical term on an ordinary food beverage amounted to misbranding and to a misleading representation about the nature and quality of the food. Dr. Reddy’s Laboratories challenged the order, but the Delhi High Court declined to interfere. It pointed to the “deleterious effect and adverse health outcomes” that could follow if consumers relied on a falsely labelled product, and deferred to FSSAI’s expertise in matters of food safety.[4]
More important for present purposes is FSSAI’s Order dated 30 October 2025, where the regulator addressed the overlap between trademark and food safety law directly. Two propositions emerge from it. The first is that the Trade Marks Act, 1999 confers “no permission to the organization to use the trademarks for creating deception amongst the consumers.” A trademark, on this view, recognises proprietary rights as between rival traders; it does not authorise its proprietor to mislead the public. The second is that Section 89 of the FSS Act carries a non-obstante character, so that compliance with food safety law operates notwithstanding anything inconsistent in any other law in force.[5] From these premises FSSAI concluded that “even a validly registered trademark cannot be used in a manner that misleads consumers or contravenes food safety provisions.”[6] Registration of a mark, in short, offers no answer to a charge of misbranding or misleading representation under the FSS Act.
If that is correct, the converse must also hold. A trademark registration that cannot defeat FSSAI’s mandate cannot, by the same token, be used to oust it. The jurisdiction of FSSAI under the FSS Act does not disappear merely because the deception complained of is also actionable as passing off or infringement before a civil court. The Act exists to protect the consumer of food and to secure honest dealing in it. Where a consumer is misled about the identity of the food business from which the purchase is made, and so about the standards to which the food has been prepared, the protective machinery of the FSS Act is plainly engaged.
The Delhi High Court has already recognised this overlap, and FSSAI’s place within it, in a related context. In Hershey Company v. Atul Jalan, the Court held that the use of the plaintiff’s trademark on an altered product prima facie amounted to infringement, since it falsely suggested that the product had been sold by the plaintiff, and it directed FSSAI to inspect and seize the offending goods.[7] The Court also noted that FSSAI had not been able to take up, with the urgency required, cases concerning the sale of such expired and mislabelled products on e-commerce platforms. The order thus serves two ends. It confirms FSSAI’s relevance to food safety violations that arise from trademark misuse, and it records, candidly, the enforcement gap that currently accompanies them.
The Emerging Jurisdictional Question
The issue is now before the Delhi High Court in a writ petition[8] filed by Veerji Restaurants, which seeks action by FSSAI against unauthorized FBOs causing consumer confusion through unauthorized use of its trademark. The petitioner has sought directions to treat its representations as a complaint, investigate the errant Food Business Operators under Sections 41 and 42 of the FSS Act, and initiate action under Section 32. Upon preliminary consideration, the Delhi High Court was pleased to issue notice. FSSAI submitted that the petitioner’s complaints were under examination and that necessary action, in accordance with the applicable Rules and Regulations, would be taken. The Court accordingly directed FSSAI to file a status report before the next date of hearing. The proceedings raise an important question regarding the scope of FSSAI’s jurisdiction over brand-identity deception.
The communications issued by the Director of Regulatory Compliances to online platforms directing inquiry and delisting of unauthorized FBOs indicate that concerns relating to consumer deception and public interest may, in appropriate cases, warrant regulatory attention. The precise statutory basis and extent of such jurisdiction are issues that merit further judicial consideration.
Locating the Violation within the FSS Act
When food is sold under a particular brand identity, a reasonable consumer associates it with the standards, quality controls, sourcing discipline and reputation that the brand ordinarily carries, and makes a purchasing decision in reliance on that association. A consumer deceived by an unauthorized FBO may be exposed to real health risks by consuming food that is only claimed to be sourced from or connected with the reputed brand, but that in fact carries none of its assurances. The harm here is not speculative. It is the foreseeable result of misplaced trust.
Read in the ordinary way, the relevant provisions of the FSS Act, chiefly the definition of “misbranded food” in Section 3(1)(zf)[9] together with Sections 23 and 24, seem aimed at cases where the consumer is misled about the characteristics of the food itself, such as its composition, quality, quantity or nutritive value. The significance of the ORS decision is that the regulatory inquiry did not turn on physical composition at all. What troubled FSSAI was the misleading commercial impression created by the expression “ORS” and the likelihood of deception that followed from it, not any established defect in the constituents of the product. The objection went to the message conveyed to the consumer rather than to the contents of the bottle.
On the same reasoning, FSSAI’s mandate can extend to deception that concerns the source, affiliation or identity of the FBO supplying the food rather than its composition or species, provided the deception influences the consumer’s choice and exposes the consumer to risk. A representation about source is itself a representation about the food, and a false representation about food is exactly what the misbranding and misleading-representation provisions are meant to prevent. To apply those provisions to a deceptive clinical term while withholding them from a deceptive trade source would rest on a distinction that the consumer-protective purpose of the statute does not bear.
Conclusion and the Way Forward
The foregoing discussion highlights an important question regarding the scope of the FSS Act where consumer deception arises through unauthorized use of a food brand. FSSAI has recognized that even a validly registered trademark cannot be used in a manner that misleads consumers or contravenes food safety provisions. The pending proceedings before the Delhi High Court provide an opportunity for judicial guidance on the extent to which brand-identity deception falls within the regulatory framework of the FSS Act.
A structural weakness in the licensing regime makes matters worse. FSSAI’s framework does not, at the threshold, check an FBO’s entitlement to use the trademark or brand identity under which it intends to trade before a licence issues. Nor is there any procedure by which a subsisting licence is revisited or cancelled once the trademark authorization behind it falls away, whether through termination of a franchise, expiry of a licence, or an order of court. The outcome is the anomaly now visible in the litigation, where an unauthorized operator continues to hold a valid FSSAI licence while using it to create consumer confusion.
The most direct cure operates at the point of entry. In the same way that a company files statutory declarations and undertakings when it is incorporated, FSSAI ought to require every applicant FBO, as a condition of the grant and renewal of a licence, to give a binding undertaking that the brand name or trademark under which it trades belongs to it or is used with proper authorization, and that the use infringes no third party’s rights. A false undertaking would then supply a clear and independent ground for suspension or cancellation, and would leave a record on which the regulator could act quickly. A requirement of this kind would tackle the problem at its source by keeping unauthorized operators out before a licence is granted, instead of leaving proprietors, and more importantly consumers, to the slow and uncertain path of litigation. This is the gap that the present regime leaves open, in regulation and in litigation alike, and it ought to be closed.
The real answer is to read the two statutes harmoniously rather than as mutually exclusive. Section 29 of the Trade Marks Act deals with infringement by the unauthorized use of a registered mark, while Sections 23 and 24 of the FSS Act forbid the misbranding and misleading representation of food. Taken together, and in service of their shared object, they cover the case of food offered under a brand identity that the operator has no authority to use, conduct that is at once trademark infringement and misbranding under the FSS Act. To treat the two regimes as exclusive is to frustrate the consumer-protection purpose that lies behind both, and to leave the consumer, for whose benefit each statute was framed, without the protection that either was meant to provide.
Ishani Garg, Former Intern at S.S. Rana & Co., has assisted in the research of this Article.
[1] Trade Marks Act, 1999, ss. 28, 29.
[2] Food Safety and Standards Act, 2006, Preamble.
[3] FSSAI Order F.No.RCD-15001/6/2021-Regulatory-FSSAI [E-1475], dated 14.10.2025 and 15.10.2025.
[4] Dr. Reddy’s Laboratories Limited & Ors. v. Union of India & Anr., W.P.(C) 16303/2025 (Delhi High Court, October 31, 2025).
[5] Food Safety and Standards Act, 2006, s. 89; see also Ram Nath v. State of U.P. (2024) 3 SCC 502.
[6] FSSAI Order dated 30.10.2025, passed in compliance with the order dated 17.10.2025 in JNTL Consumer Health India Pvt. Ltd. v. Union of India & Anr., W.P.(C) 16217/2025, as cited in Dr. Reddy’s Laboratories Limited & Ors. v. Union of India & Anr., W.P.(C) 16303/2025 (Delhi High Court, October 31, 2025).
[7] Hershey Company v. Atul Jalan Trading as Akshat Online Traders, CS(COMM) 780/2023 (Delhi High Court).
[8] Veerji Restaurants v. Union of India, W.P.(C) 19638/2025 (Delhi High Court)
[9] Food Safety and Standards Act, 2006, s. 3(1)(zf).