Continuing from the previous piece at:
In their counter, FSSAI stated that there was presence of
lead above 2.5 ppm in Maggi samples; that “No added MSG (Mono Sodium
Glutamate)” on the packs was misleading; that Nestle was selling one variant of
Maggi, viz., Maggi Oats Masala Noodles without risk assessment and approval;
and, that the company was given a due hearing on June 4, 2015. FSSAI also
averred that the product needed to be temporarily banned as it was a public
emergency and the order caused no undue harm as the company had already
recalled Maggi and the ban was temporary. It also pointed out that Nestle, on
its own, incinerated 37,000 tons of Maggi without the regulator having asked
for it.
Surprise, surprise – the Court sided with Nestle and
overturned the ban. It also ordered that another round of 90 samples will be
tested for lead by three labs accredited by NABL within six weeks and that
production of Maggi would be allowed to be resumed thereafter. This was the
Court’s reasoning:
There was violation of natural justice because show-cause
notice was not issued. No risk analysis was carried out by the authorities.
Report received from some of the states was conveyed over phone. Results for more than 50 %
of the samples were within permissible limits - only 30 of the 72 samples tested had lead in
excess. The state food commissioner rather than the central food regulator had
the authority to impose the ban. Some of the laboratories were not accredited
by NABL. The procedure for sample taking was not followed. There were some
anomalies in some of the reports – quantity of the sample, etc.. The Kolkata
lab tested a sample after its expiry date. Nestle had already issued a press
release recalling the products. MSG is found in some substances naturally. The
penalty for mislabelling was only Rs. 3 lacs and the company had agreed to withdraw
the label. The company had applied for approval for the ninth variant of Maggi.
Since eight variants were approved, why not sell the ninth, pending approval?
The court directed to test the samples in the possession of
the company and not with the government. The court did not agree to at least
simultaneously test the samples with the government.
The Bombay High Court Order (dated August 13, 2015) can be
seen here:
https://indiankanoon.org/doc/66718388/
I went through the Court order several times – all 69 pages
of it – and was really intrigued.
First, why Bombay High Court? The ban was imposed by FSSAI
whose headquarters are in Delhi so the petition should’ve been filed in Delhi. Also,
Maharashtra was not the first state to impose the ban; Telengana and
Uttarakhand were the first. In fact, Maharashtra was the sixth state to impose
the ban. The timeline also surprises. Normally, even a petty case takes years
to wind through the courts and here there was such a major case decided within
exactly two months.
The company sought to take advantage of India’s “regulatory
incoherence” in the Court. A very major portion of the 69 pages in the
judgement appears to concentrate on the technicalities of which section the
orders were issued under, etc. rather than the basic problems – misleading
labelling on MSG and lead content.
The Kolkata lab is one of the oldest and respected
laboratories in the country. Lead testing is not complicated. Even if the date
of testing was a little over the expiry date, how can lead get into a sealed
packet, that too in such high quantity? Other labs which tested were also
competent. I think, there was undue quibbling about laboratory and
accreditation rather than the health issues. 17.2 ppm lead was found as against the mandated limit of 2.5 ppm and this is seriously
alarming.
The labelling of “No added MSG” was mischievous, to say the
least. It obviated declaration of MSG content and the warning as mandated by the
regulations. High lead content in such a popular product does amount to a
serious health risk and a temporary ban was needed. In any case, it did not
affect the outcome. Rather than paying the fine of Rs. 3 lacs when it had
clearly violated norms regarding MSG and rather than responding to the FSSAI notice,
the company rushed to the Court. That smacks of arrogance and having something
to hide.
The company destroying such a large quantity of Maggi
without being mandated to was suspicious. When the incident broke, Uttar Pradesh
was ruled by the Samajwadi Party. Contrary to the nudge, nudge, wink, wink, it is unlikely that the food inspector was influenced by a different party’s government
at the Centre.
The Court’s objection to the telephonic communication of
lab test results is intriguing. There is a well laid out procedure for
telephonic communication and it is followed by written confirmation.
What I found the most intriguing was the Court’s observation that more than 50 % of the samples had lead within permissible limits and only 30
samples (out of 72) had lead in excess. Hello?! Not a single sample should
have excess lead. Is it okay if 42 % of the consumers die and not okay only if the
death exceeds 50 %?
The judgement also says that the application for approval
of Maggi Oats Masala Noodles was pending so where was the problem in selling
it, pending approval? Is it okay to go ahead with selling something if the
application is pending? What if the product is something dangerous or
poisonous?
The Court directed that the samples in the possession of
the company be tested and did not allow even simultaneous testing of the
samples with the govt agencies. Wasn’t
it a bit like putting a lunatic in charge of the asylum?
Cut to 2026. Tukaram Mundhe’s FDA has now been pulled up by
the Court for “taking a pedantic instead of pragmatic view.” The Court also asked, “Do
you feel you are a Lord and you can do anything?"
Incohernce and inconsistencies in our governance.
ReplyDeleteIndian judiciary is, with due respect, is a double - edged sword indeed.
Shri Bibhuti Dash's story is of great public interest and consequence.
Congratulations and thanks sir.