Ban on Maggi and the legal issues involved
Ban on Maggi and the legal issues involved Maggi has been a household name in our country for decades. A revenue of Rs. 350 crore per month soon fell to Rs.30 crore a month, a product value of Rs. 4200 crore annually was broken down to nothing. Nestlé’s history in the Indian market goes back to 1912 when it launched itself as “The Nestle Anglo-Swiss Condensed Milk Company (Export)”.Nestle introduced Maggi as instant noodles in India in the year 1983, which makes it a 31-year-old brand that captured 75% of the market share until recently.
The Food Safety and Standards Authority of India (FSSAI), an agency under the Ministry of Health and Family Welfare, was established under the Food Safety and Standards Act, 2006 as a statutory body for laying down science-based standards for articles of food, and regulating manufacturing, processing, distribution, sale and import of food. The FSSAI has certain regulations providing the standards for different kinds of food articles and additives that may be permitted to be used in food products called the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011.
However, it has failed to develop a standardized revised format and criteria to define the adequate requirements for standardization of food and food products. Proprietary Food is a category under the FSS Act, which is not standardized under the regulations and these regulations provide for an additional labelling requirement.
The major issues that have caused a legal dilemma and discussion have been on the basis of the definition provided to proprietary foods which did not conclude that the non-standardized foods are not allowed to be manufactured, imported or sold, but also doesn’t mean exclusively that all other non-standardized products, not mentioned in the list of 377 food items, may be manufactured. Given the backdrop, the biggest lacuna of FSSAI has been the non-inclusion of thousands of food products that need minimum standards to be prescribed and the ratification of international standards for the same. The “Product Approval Scheme” by the FSSAI has been held unconstitutional by the Bombay High Court under Section 93 of FSS Act. SECTION 139
Ban on Maggi and the legal issues involved The Maggi Controversy erupted when an officer of the UP Food Safety and Drug AdministrationOrdered laboratory tests of some samples of Nestle’s Maggi instant noodles. The Gorakhpur lab tested positive for MSG whereas the labelling on the product claimed that it contained no added MSGi.e.monosodium glutamate. According to the FSS Rules 2011, MSG, a flavour enhancer, is not permitted in over 50 items but is allowed to be used as a seasoning for noodles and pasta. According to the FSS (Contaminants, Toxins and Residues) Regulations 2011, the permissible limit of lead for instant noodles ranges to a maximum of 2.5 ppm. The tests revealed that the product contained 17 parts per million lead as opposed to the permissible limit of 0.01ppm.
MSG is a widely used condiment in “Indo-Chinese” food. It is generally recognized as safe and is considered among the likes of salt, pepper, vinegar and baking powder. A number of natural products that are added to Maggi contain Glutamates like hydrolysed groundnut protein, onion powder and wheat flour. Thus, Nestle argued that it is a naturally occurring glutamate. However, excessive consumption of MSG may lead to increased body weight, brain damage in infants, liver damage, diabetes and headaches and high blood pressure. Thus, a number of states like Delhi, Gujarat, Tamil Nadu, Jammu Kashmir and Uttrakhand conducted laboratory tests on the product eventually banning it for the presence of lead and MSG.
There is a dichotomy in the stand of FSSAI, which has failed to enact an adequate regulating document in advance when put in contrast with the view that it does not ipso facto ratify the standards and guidelines permitted under Codex Alimentarius, where they contrarily use the Codex and other international standards to make a case against various food operators. The technicality of the issue can be broken down stating that the FSS Act gives massive power to a food analyst. They are usually qualified people and thus when a random sample is sent for testing, theyshall note the seal and condition of the package and report it in 14 days. They can test the food items in any laboratory-personal, accredited or notified.
An accredited laboratory is certified by the National Board. The National Board certifies an accredited laboratory for Accreditation (NABL). It may or may not be a notified laboratory. On the other hand, the state and central food authorities recognize “notified laboratory”. NABL or an equally qualified accreditation body accredits it. The Maggi samples were checked in an accredited notified laboratory but they are not empowered to test for lead. Thus, the report calls into question.
The Maharashtra Food and Drug Administration had alleged that Maggi destroyed Thirty thousand tonnes of product amounting to Rs.320 crore worth of evidence. The sole reason for the same being that Nestle did not want the samples to be tested. As then, the mere issue at hand shall be disputing the validity of the authority of the laboratories that tested Maggi. However, the same had been argued by Nestle that the issue has been prejudged by the FSSAI. Thus, the cancellation of the product has been arbitrary and so was banned without a show cause notice. They questioned the qualification of these laboratories and alleged that the tests were faulty.
The whole procedure for checking the product was questioned as Maggi and its tastemaker were tested separately as opposed to the way it is consumed as per the “intended use”. Leaving aside the people who consume the product separately. Codex prescribes that a product must be tested separately and not as composite. Nevertheless, the FSSAI contented that it had sufficient evidence to produce order without a show cause notice against Maggi. FSSAI had collected 72 samples before banning the product out of which 30 had found lead in excess of the permissible limit. Nestle had its res judicata, as it was heard before the passing of the notice. The FSSAI failed to understand the perspective of the Nestle executives- Paul Bulcke, Etienne Benet along, etc. Hence, FSSAI did what it was required to do as a regulatory body. It prohibited the manufacturing and sale of the product in the interest of the consumers and the public.
Finally, the court lifted the ban from Maggi and stated that the respondents could not discharge the tall claims that they make. The FSSAI could not substantiate its argument pertaining to lead contamination beyond the permissible limit. The FSSAI came out as a big loser. The Ministry of consumer affairs has filed a claim in the National Consumer Dispute Redressal Commission for Rs. 640 crores for alleged trade practices, false labelling and misleading advertisements. Maggi is all set to make a comeback to win over the hearts of its consumers, whereas the FSSAI needs to gear up and improve upon the lacunae to be a credible regulatory body.