India: Maggie:- 2 Minutes Noodle Controversy And The Legal Issues Involved

BACKGROUND

The recent controversy with respect to MNC Giant Nestle's Maggie noodles across the country has once again opened the Pandora box with respect to dual safety standards being followed by the MNC food company in the Country and the yesterdays haunt of pesticides in Coke and Pepsi is once again looking to revisit. The article deals with the recent controversy with respect to Maggie noodles viz. the presence of higher Monosodium Glutmate than the prescribed limit and the Order dated 05th June, 2015 bearing No. 10/Q.A/Enforcement Issues/FSSAI-2015 issued by Food Safety and Standard Authority of India (hereinafter referred to as FSSAI) under the various provisions of Food Safety and Standard Act, 2006 (hereinafter referred to as "FSS Act''), 2006 inter alia directing the Nestle India Ltd to withdraw and recall various variants of its products has made it .

INTRODUCTION

The recent controversy erupted from Barabanki District of Uttar Pradesh where samples of Maggie noodles were collected by Uttar Pradesh Food Safety and Drug Administration and the same was found to contain lead, MSG. Pertinently, the order dated 5th June issued by FSSAI has classified the issues with respect to Maggie. The First is the presence of lead in excess of maximum permissible levels of 2.5 ppm, misleading labelling information on the package reading "no added MSG" Monosodium glutamate (MSG) and lead and release of non-standardized food product in the market viz. Maggie Oats Masala Noodles with tastemaker1. Shockingly, after the lab tests in Uttar Pradesh it was revealed that 2 minute noodle contained 17 parts per million lead, while the prescribed and permissible limit is only 0.01 ppm2. Even the content of monosodium glutamate (MSG) in it was found at levels above the dangerous mark. The various articles dealing with the harmful effects of MSG has clearly outlined that impressible and high intake MSG can have very dangerous impact on health and it can lead to Obesity, Eye damage, Headaches, Fatigue and disorientation, Depression3 amongst others. Therefore as a result of high presence of Lead and MSG particles in Maggie, the various State Government conducted a lab test in to find the content of the same and almost quite a few States including Delhi, Gujarat, Tamil Nadu, Jammu Kashmir and Uttarakhand4 have imposed ban on sale of Maggie after the 2 minutes noodles failed the lab test in these respective states. The ban imposed by State Government on sale of Maggie and its products from the market eventually resulting in the recall of Maggie products from the market.

LEGAL DIMENSIONS TO MAGGIE CONTROVERSY

A) Legal Issues dealing with June 5 FSSAI Order and the Provisions under FSS Act, 2006

In brief the order dated 5th June, 2015 issued by Food Safety and Standard Authority of India, Delhi has held M/s. Nestle India Ltd liable inter alia under Section 20, 22, 23 and 24 r/w Section 53, Section 26, 27,48, 50, 52 and 58 and 595 amongst others of the FSS Act, 20066. The FSSI order published and available on the public domain inter alia also directed M/s. Nestle India Ltd to withdraw and recall the 9 approved variants of Maggie instant Noodles from the market since these products having been found unsafe and hazardous for human consumption. The Authority also directed the company to further stop the production, processing, import, distribution and sale of the instant products from immediate effect, and also to immediately withdraw and recall "Maggie Oats Masala Noodles with Tastemaker" since the product has still not been approved by the Competent Authority.

Section 20 deals with Contaminants, naturally occurring toxic substances, heaving metals etc which states that food products will only contain the quantities as specified by the regulations. Section 22 deals with genetically modified foods, organic foods, functional foods, proprietary foods7. It is this "proprietary food" provision that has been used against Maggie Oats Masala Noodles with Tastemaker whereby M/s. Nestle India Ltd was asked to recall and withdraw the product with immediate effect. Section 23 of the FSSI Act deals with packaging and labelling of foods, M/s. Nestle India Ltd has been prima facie being liable under this section since the label of Maggie specifies that the product does not contain any MSG whereas lab testing of the product confirmed that the MSG presence was much higher than the prescribed limit.

Section 278 deals with liability of the manufacturers, packers and wholesalers, distributors and sellers and amongst various other liability Section 27 (3) (c) deals with liability of wholesalers and distributors for unsafe and misbranded. Section 489 in detail covers provisions relating to offences.

The company has challenged the order dated 5th June, 2015 issued by FSSAI and order dated June 6th issued by Maharashtra FDA whereby direction was issued to recall Maggie products from the market before the Hon'ble Bombay High Court.

B) Legal Issues with respect to Celebrities liability for Brand Endorsement under FSS Act, 2006

Pertinently, this section is important since the Ld. Muzzfarpur Court in Bihar has asked Police to register FIR against Amitabh Bachhan, Madhuri Dixit and Priety Zinta10 who were said to be endorsing Maggie products through advertisements. Quite interestingly, the FSS Act appears to be vague when it comes to impose liability on celebrities for endorsing the products which is otherwise found to be unsafe and hazardous. It is pertinent to appreciate some of the relevant provisions dealing with advertisement under the FSS Act. Section 3 (1) (b) of the Act defines "advertisement11" and section 24 (1)12 of the Act deals with Restrictions of Advertisements and prohibitions as to unfair trade practises. Section 53 of the Act deals with penalty for misleading advertisement13 and it imposes a penalty of Rs. 10,00,000/- for misleading advertisement. The definition of advertisement is very wide when it comes to the liability of brand endorsers more so because there are various stake holders involved in branding starting from the company, advertisement agency and then the celebrities who endorse the product. Further, besides imposing a fine of Rs. 10 lakh, it is difficult to prosecute the celebrity because for the act done in good faith one cannot held to be liable.

Maggie in its defence has categorically and out rightly denied the presence of excess MSG and lead in its composition and rather has contended that the presence of MSG and lead is natural phenomenon. The statement issued by Maggie read as under:-

"We do not add Monosodium Glutamate (MSG) to Maggi Noodles. We use raw materials that may contain naturally occurring Glutamate and which could be confused with commercially produced MSG. Glutamate is safe and is found in everyday and high protein foods including tomatoes, peas, paneer, onions, milk.14"

Thus it can be inferred that Nestle has shielded itself from any culpability and has sought to justify MSG as natural phenomenon.

CONCLUSION

The Fault dear Brutus, is not in our Stars, But in Ourselves15. This is the very famous quote from the masterpiece Julius Ceaser, a play written by William Shakespeare. Thus the point which is being emphasised is that our system itself is not full proof to deal with such kind of action and issues with Iron hand. The Coke controversy is not very old wherein it was brought to the knowledge that the standard and the ingredients followed by the MNC giants while preparing the soft drink is different in European Countries as compared to the Asian countries to be more precise Afro-Asian Countries. As of now we don't have the prevalence of product liability in India whereby the company can be sued for the deficiency of their products and compensation can be claimed in considerable amount as the same is prevalent in United States and Other European Countries. Even though Nestle has recalled its products, Maggie controversy has given our lawmakers to revisit the entire Consumer Protection Act and ensure that the concept of Product Liability is incorporated in the Act.

Footnotes

1 http://www.fssai.gov.in/Portals/0/Pdf/Order_Nestle.pdf (Visited on 20th June, 2015)

2 Maggi noodles controversy: Case to be filed against Nestle in UP today; http://zeenews.india.com/news/health/healthnews/maggi-noodles-controversy-case-to-be-filed-against-nestle-in-up-today_1604198.html (Last Visited on 20th June, 2015)

3 MSG: Is This Silent Killer Lurking in Your Kitchen Cabinets; http://articles.mercola.com/sites/articles/archive/2009/04/21/msg-is-this-silent-killer-lurking-in-your-kitchen-cabinets.aspx ( Last Visited on 21st June, 2015)

4 Trouble escalates for Maggi as four more states impose ban - http://indianexpress.com/article/india/india-others/maggi-fails-uttarakhand-test-banned/   (Last visited on 21st June, 2015)

5 Food Safety And Standards Act, 2006, http://www.fssai.gov.in/portals/0/pdf/food-act.pdf (Last visited on 21st June, 2015)

6 http://www.fssai.gov.in/portals/0/pdf/food-act.pdf (Last visited on 21st June, 2015)

7 "proprietary and novel food" means an article of food for which standards have not been specified but is not unsafe: See Section 22 (4) of the FSSI Act, 2006

8 (1) The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made thereunder.

(2) The wholesaler or distributor shall be liable under this Act for any article of food which is–

(a) Supplied after the date of its expiry; or

(b) Stored or supplied in violation of the safety instructions of the manufacturer; or

(c) Unsafe or misbranded; or 28

(d) Unidentifiable of manufacturer from whom the article of food have been received; or

(e) Stored or handled or kept in violation of the provisions of this Act, the rules and regulations made thereunder; or

(f) received by him with knowledge of being unsafe.

(2) The seller shall be liable under this Act for any article of food which is –

(a) sold after the date of its expiry; or

(b) handled or kept in unhygienic conditions; or

(c) misbranded; or

(d) unidentifiable of the manufacturer or the distributors from whom such articles of food were received; or

(e) received by him with knowledge of being unsafe.

9 48. General provisions relating to offences.

(1) A person may render any article of food injurious to health by means of one or more of the following operations, namely:-

(a) adding any article or substance to the food;

(b) using any article or substance as an ingredient in the preparation of the food;

(c) abstracting any constituents from the food; or

(d) subjecting the food to any other process or treatment, with the knowledge that it may be sold or offered for sale or distributed for human consumption.

(2) In determining whether any food is unsafe or injurious to health, regard shall be had to –

(a) (i) the normal conditions of use of the food by the consumer and its handling at each stage of production, processing and distribution;

(ii) the information provided to the consumer, including information on the label, or other information generally available to the consumer concerning the avoidance of specific adverse health effects from a particular food or category of foods not only to the probable, immediate or short-term or long-term effects of that food on the health of a person consuming it, but also on subsequent generations;

(iii) to the probable cumulative toxic effects;

(iv) to the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers; and

(v) also to the probable cumulative effect of food of substantially the same composition on the health of a person consuming it in ordinary quantities;

(b) the fact where the quality or purity of the article, being primary food, has fallen below the specified standard or its constituents are present in quantities not within the specified 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 unsafe or sub-standard or food containing extraneous matter. Explanation – For the purposes of this section, "injury", includes any impairment, whether permanent or temporary, and "Injurious to health" shall be construed accordingly.

10 Court orders FIR against Amitabh, Madhuri, Preity over Maggi row; http://www.thehindu.com/news/national/court-orders-fir-against-amitabh-madhuri-preity-over-maggi-row/article7274587.ece   (Last visited on 21st June, 2015)

11 (b) "advertisement" means any audio or visual publicity, representation or pronouncement made by means of any light, sound, smoke, gas, print, electronic media, internet or website and includes through any notice, circular, label, wrapper, invoice or other documents;

12 (1) No advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made thereunder.

13 53. Penalty for misleading advertisement.

(1) Any person who publishes, or is a party to the publication of an advertisement, which–

(a) falsely describes any food; or

(b) is likely to mislead as to the nature or substance or quality of any food or gives false guarantee, shall be liable to a penalty which may extend to ten lakh rupees.

(2) In any proceeding the fact that a label or advertisement relating to any article of food in respect of which the contravention is alleged to have been committed contained an accurate statement of the composition of the food shall not preclude the court from finding that the contravention was committed.

14 No MSG in Maggi Noodles, Says Nestle, as States Reportedly Ask for Tests; http://food.ndtv.com/food-drinks/maggi-noodles-too-much-msg-764089

15 Julius Ceasar (Act I, Scene II) Play written by Shakespeare

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