Delhi High Court says FoodPharmer can comment on facts but can't disparage Bournvita

The Delhi High Court on Wednesday clarified that its earlier interim order restraining health influencer Revant Himatsingka - who goes by FoodPharmer on social media - from disparaging Bournvita does not stop him from making factual assertions regarding it [Mondelez India Foods Pvt. Ltd. & Ors. vs. Mr. Revant Himatsingka].

Justice Amit Bansal made the observation in response to a request by Himatsingka's counsel, Senior Advocate Rajshekhar Rao who had urged the Court to clarify that the October 15 interim injunction should not be interpreted as a gag order.

The Court has also issued notice on an application filed by Himatsingka to vacate the interim injunction issued against him.

The interim injunction had been issued on a plaint filed by Mondelez India, which owns Bournvita (a chocolate malt drink), which has contended that Himatsingka has made disparaging and defamatory comments on its brand. Mondelez has sought a take down of videos uploaded by the influencer against Bournvita.

The issue of whether Himatsingka's earlier videos on Bournvita should be taken down is yet to be considered.

On October 15, the Court had opined that Mondelez (Bournvita) had made out a prima facie case in its favour. Therefore, the Court had restrained Himatsingka (FoodPharmer) from issuing, uploading or telecasting any videos, publications or posts that disparage Bournvita

The Court yesterday was slated to consider whether earlier videos allegedly disparaging Bournvita should be taken down. Senior Advocate Rajiv Nayar appeared for Mondelez India and submitted that he is seeking the removal of such videos.

Himatsingka's ‘FoodPhamer’ account has garnered about 2.7 million followers on Instagram. In his videos, Himatsingka claimed that Bournvita has excess sugar. One such video went 'viral' and led public authorities to enquire into the veracity of Bournvita being called a health drink.

The National Commission for Protection of Child Rights (NCPCR) directed Mondelez to remove claims of Bournvita being a 'health drink' from its advertisements, packaging and labels.

The Ministry of Commerce and Industry issued a directive to all e-commerce companies to remove various products from the category of health drinks as no such definition exists under the Food Safety and Standards Act 2006.

Mondelez released a statement saying that Bournvita's "formulation has been scientifically crafted by a team of nutritionists and food scientists." 

Thereafter, Mondelez reduced the sugar content in Bournvita by nearly 15 percent.

It proceeded to file the present suit against Himatsingka.

Mondelez claims that Himatsingka has published more than 150 posts/ videos targeting and disparaging its products, 'Bournvita' and 'Tang'.

Aggrieved by the videos, Mondelez issued a legal notice requesting Himatsingka to cease and desist from defaming Mondelez products in its videos.

However, Mondelez claims that Himatsingka continued to create and publish more videos with disparaging comments concerning 'Bournvita'.

The Court yesterday did not order a takedown of the influencer’s videos and only granted both sides some more time to file their replies.

The October 15 interim injunction against the influencer will continue in the meanwhile. The matter will be taken up next on November 27.

Senior Advocate Rajiv Nayar appeared for Mondelez India.

Senior Advocate Rajshekhar Rao along with advocates Nakul Gandhi, Eshna Kumar, Mujeeb, Gloria Purty and Harshil Wason appeared for Revant Himatsingka.

[Read October 15 order]