Legal experts are pondering the basis for the MaharashtraFood and Drug Administration (FDA)'s decision to move the Supreme Court against the Bombay High Court order quashing the ban on Nestle's Maggi noodles.
The popular snack re-entered the market on November 9, on the back of the Bombay High Court order dated August 13 and after clearing new safety tests.
According to Zakir Merchant, partner, Khaitan & Co, although the case had been disposed of by the division Bench of the Bombay High Court, the scope for legal arguments is not over. While Maggi noodles cleared the safety tests, the samples used for the tests were drawn from Nestle India and not from the authorities. This is a point of disagreement between the state regulator and the company.
In its order, the Bombay High Court judges had observed, "We are constrained to give directions for testing of food samples which have been preserved by the Petitioner (Nestle India)." Legal experts point out that the question over the credibility of samples taken from the company, whose own quality standards were in question at that point in time, could become crucial in the apex court.
"Perhaps the government is aggrieved by the fact that the samples that were tested were procured from Nestle and not the ones which were in their possession... The tests are clear but an argument may be made by the government that the results could have varied if their samples were called upon and therefore, a re-testing should be the way forward. Secondly, it could be that there is a divergence in the interpretation of a particular regulation on the standards laid down for testing and applying the prescribed benchmarks. This may be made out to be a ground for challenging the test results," Merchant explained.
While there is no safety limit that has been laid down by the Food Safety and Standards Authority of India (FSSAI) for monosodium glutamate (MSG). It can be found in packaged foods as it originates from natural sources used in products. This was accepted by the FSSAI. However, mis-labelling on Maggi noodle packs could be brought up in the apex court. This is despite Nestle agreeing in the Bombay High Court that the 'no added MSG' tag would be removed from the packs. The company has corrected the issue on new packs released in market.
"Although not a sound argument pressed into service earlier, on technical grounds, mis-labelling may be raised again before the Supreme Court in spite of the fact that MSG is found naturally in several food sources," said Merchant.
It was the Uttar Pradesh food regulatory authority that first brought up the issue in public regarding presence of MSG and lead in Maggi noodles.
However, Ashish Prasad, partner, Economic Laws Practice, has a different take on the matter. "The issue, in my view, is over, with Maggi back on the shelves. The FDA is free to conduct tests and act (accordingly). It does not need to seek any further ratification of its powers and duties under the (Food Safety & Standards) Act, 2006 from any court of law - if that's what it is seeking."
NOT OUT OF THE WOODS YET
- Maggi re-entered the market on November 9, on the back of the Bombay High Court order dated August 13 and after clearing safety tests
- While Maggi noodles cleared the safety tests, the samples used were drawn from Nestle India and not from the authorities
- Legal experts say that the question of credibility of samples taken from the company could become crucial in the apex court
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