Burning issue: A messy blame game. Sanjoy Ghosh
That’s food safety law for you. How the courts interpret alleged transgressions in the case of Maggi remains to be seen
August 2, 2015:
The Food Safety and Standards Act, 2006, is the principal legislation governing food products in India. It classifies food products into two categories — standardised products and proprietary products. Products that conform to the standards specified under the Act are standardised products. Products that do not adhere to the standards, or for which no standards have been specified, are proprietary products.
All food manufacturers have to obtain a licence to manufacture and sell products; however, manufacturers of proprietary products have to additionally obtain prior product approval from the Food Safety and Standards Authority of India (FSSAI), the food regulator. Approval is granted based on safety assessment by a scientific panel; until such assessment is completed, the FSSAI issues an interim no objection certificate and licence to the manufacturers to launch products in the market.
If approval is not given, and the manufacturer has already launched the product on the basis of the NOC, the manufacturer has to recall the products. Therefore, manufacturers have to ensure ‘traceability’ of the products in order to facilitate a recall. The FSSAI has also introduced regulations on the recall procedure; although these are awaiting approval.
The noodles affair
The FSSAI is currently in the spotlight given its actions in the case of Maggi noodles. While nine variants of Maggi noodles, being proprietary products, were granted approval in 2013, the FSSAI has alleged that these products contain lead, a metal contaminant, beyond the permissible limit of 2.5 parts per million. The manufacturer, Nestle, has in its defence argued that the FSSAI has not interpreted the testing protocol correctly, as the noodles and tastemaker were tested separately, instead of being tested in their combined and consumable form.
Nestle’s defence is that lead in the tastemaker appears to be higher than the permissible limit only when tested separately. However, the FSSAI holds that both components have to be independently compliant, given that they are packaged separately. While the approval was for both the components based on one application, it appears they have been assessed separately.
Of greater concern
In addition to lead, the presence of mono-sodium glutamate (MSG) in Nestle’s products has caused an increased concern among consumers. It is pertinent to note here that tastemakers for noodles are permitted to contain MSG; but the issue raised by the FSSAI is that the declaration on product labels states that there is no ‘added’ MSG in the products. Here Nestle has taken a technical defence by contending that the tastemaker contains naturally-occurring MSG and that Nestle does not add any MSG. While it appears that Nestle’s contention is not wrong, the FSSAI has stated that the declaration creates an erroneous impression in the minds of consumers.
This approach of the FSSAI may be contradictory to its own labelling regulations, because these regulations imply a distinction between naturally occurring MSG and added MSG. The labelling regulations only require products which contain added MSG to bear a declaration, and not products containing naturally occurring MSG.
However, the trouble for Nestle does not end here. The food giant is also alleged to have launched ‘Maggi Oats Masala Noodles’ without obtaining product approval or the NOC. The FSSAI has stated that Nestle had made an application for product approval and that subsequently, due to a lack of response by Nestle on the safety assessment, the application was closed.
FSSAI’s product approval system itself is currently under the scanner of the Supreme Court as a result of a Bombay High Court order striking down the product approval system, for FSSAI exceeding its authority in promulgating the product approval system. In view of this, there was a short span of time when the product approval system was inapplicable. However, the High Court’s order has been stayed by the Supreme Court and the product approval system is applicable again.
Awaiting a decision
Nestle has stated that the alleged product was introduced in the market during such time when the product approval system was not in force. The approach that was expected to be taken by manufacturers of proprietary products who launched products when the Bombay High Court order was effective is required to be understood, given the inapplicability of the product approval system during such period. This ambiguity can only be settled with an expedited decision by the Supreme Court.
As it currently stands, the FSSAI, having rejected the arguments of Nestle, has issued an order directing the recall of all nine variants of its instant noodles and one other unapproved product from the market. The FSSAI’s order has been challenged by Nestle before the Bombay High Court; however the court has not granted interim relief over the ban on Nestle’s products. It will be interesting to see how the various provisions of law are interpreted and settled given the variety of interests and stakes involved.
The writer is a partner at J Sagar Associates, Advocates and Solicitors. The views are personal. Sindhu Nayak contributed to the article
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