DNA Editorial: A ban revoked

The Bombay high court order revoking the ban on Maggi noodles has come as a major embarrassment for India’s food regulator, the Food Safety and Standards Authority of India (FSSAI) and the Indian government. The government’s discomfiture is more pronounced given the series of flip–flops it went through in the period leading to the court order. The order came just a day after the consumer affairs ministry cleared a proposal to sueNestle India for Rs640 crore for allegedly misleading consumers with false claims. The judgment faulted the FSSAI on multiple counts for violating due procedure as enshrined in the Food Safety and Standards(FSS) Act. The court order noted that the samples were not collected in accordance with the Act’s provisions, Nestle officials were denied a proper hearing, and that the samples were not tested at accredited laboratories and hence the results could not be relied upon. Further, the court questioned the need to impose the ban when Nestle India had decided to recall all Maggi packets from the market. The court also disapproved the FSSAI ban on all variants of the Maggi product when only three variants allegedly revealed impermissibly high lead content and the other variants were not even tested.

The court has directed Nestle to send samples in its possession to three accredited laboratories for testing to satisfy the FSSAI that the lead content is within permissible levels before it can renew operations. The FSSAI has reason to feel aggrieved as it had pressed for sending the samples in its possession rather than the ones in the company’s possession. However, the company managed to convince the court that the authenticity of the samples in the FSSAI’s possession could not be guaranteed as it had already violated the FSSAI Act’s provisions on sampling. Even the FSSAI’s lawyer’s attempts to cite examples of similar allegations against Nestle in other countries by presenting articles downloaded from the Internet boomeranged spectacularly. The court ruled that FSSAI was “also influenced by extraneous considerations” in imposing the ban on Maggi noodles. This is rather harsh because the lawyer’s zeal to win the case for a client cannot be linked to the ban which happened before the matter even reached the court.

Rather than be disheartened by the verdict, the FSSAI must learn the right lessons from this debacle. Represented by some of India’s top lawyers, Nestle India was able to puncture holes in the FSSAI’s handling of the samples and their testing. Nestle argued that the laboratory testing the samples was not NABL-accredited and recognised under the FSS Act. The company’s lawyers also questioned the absence of batch numbers, manufactured date, and other particulars in the test reports. Even the quantity of sample tested at the lab was greater than what a Maggi packet could contain, which indicated that samples were taken out of sealed envelopes and then sent for testing. Nestle contended that this violated the FSS Act which stipulates that the food as found in a packet must be sent for testing and the entire packet must be sent for testing in an unopened condition.

FSSAI has only itself to blame for not paying attention to details, due procedure, and quality infrastructure. If the FSSAI and state and central governments are serious about checking food adulteration, they cannot operate in a cavalier fashion. The FSSAI claimed to have collected 32,389 samples between April and September 2014, found 4,924 non-conforming samples, and launched 933 criminal and 2,785 civil prosecutions. These statistics, while impressive, must face greater interrogation, considering that the regulator has failed its biggest test — against a well-healed corporate — on a rare occasion when it came under public gaze. Merely pandering to populism and outrage will not do; without adherence to procedure and quality standards such faux pas are bound to repeat.