Lawyer’s Lingo – Understanding the legal implications of the Maggi “ban”

Never before have instant noodles received as much media attention as in the past two weeks. What started off as random testing of Maggi packets by Food Safety Officer VK Pandey in Uttar Pradesh last year, has now snowballed into a national controversy..As of yesterday, a total of 14 Indian states have banned the sale of Maggi, a list that does not include Uttar Pradesh. Nestle India, the manufacturers of Maggi, is not only facing a PR nightmare, but has also witnessed a 10% fall in its share prices last week..In this piece, we analyse the legal issues involved.1. What is the law involved?.The Food Safety and Standards Act of 2006.An overarching legislation, the FSSA replaced a number of food-related laws such as Prevention of Food Adulteration Act, the Milk and Milk Products Order, and others..The two most relevant consequences of the FSSA are:.The creation of the Food and Safety Standards Authority of India, entrusted with the enforcement of the ActRegulations dealing with labeling, packaging, food safety etc.2. Is MSG banned in India?.Yes and No..Under the Food Safety and Standards (Food Product Standards and Food Additives) Regulations (Part I and Part II) there are certain restrictions on what food products MSG can be added to..For example no MSG can be added to noodles and pasta (dried products) under 3.1.11 (xiv) of the Regulations, but, MSG is allowed in “seasoning for noodles and pasta” under 3.1.11 (xxiii) of the same regulations.3. How much MSG is allowed?.Well, there is no numerical limit. Instead it depends on Good Manufacturing Practices, which in turn can be traced back to the Codex Alimentarius International Food Standards. The GMP is that quantity that is the “lowest possible level necessary to accomplish its desired effect”..4. Is lead allowed in food?.Yes. Under the Food Safety and Standards (Contaminants, toxins and residues) Regulations 2.5 ppm (parts per million) of lead contaminant is allowed in foods such as Maggi..5. So if MSG and lead are allowed, where did it go wrong?.One, labelling..The Indian Food Safety Standards Packaging and Labelling Rules of 2011 says that any product that contains MSG must mention that on the label. Apparently, the Maggi packets did not indicate this..On its part, Nestle India claims that there was no MSG in the product. Instead the tests may have found “glutamate” which occurs “naturally in many foods”..Two, the lead content was far more than permissible under the Regulations..Three, the release of “Maggi Oats Masala Noodles with Tastemaker” without product approval..6. So what is the punishment under the FSS Act?.There are a number of headings that prescribe punishment based on the severity involved. For instance, if one is found to be guilty of selling “unsafe” food, the punishment ranges from six months imprisonment and a fine of rupees one lakh to life imprisonment and a fine of rupees ten lakh..7. Who awards this punishment?.An order passed under the FSS Act can be appealed before the Food Safety Appellate Tribunal. This Tribunal consists of judges of the rank of Additional District Magistrate and above. Appeals from this Tribunal go to the High Court..8. So who will be punished?.This is where things get interesting. The FSS Act recognizes offences committed by companies. In such a case,.“…every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence.”.However, it appears that this provision has not been exercised so far..On June 4, 2015 a meeting was held between the FSSAI and officials from Nestle India. As per the official order released by the FSSAI, the purpose of this meeting was to,.“…seek their response in the matter and also to know as to what steps the Company had taken in terms of compliance of its obligations under Section 26 of the FSS Act, 2006.”.Section 26 of the Act lays down the obligations of a food business operator..At the said meeting, some of the submissions made by Nestle India were.The tastemaker and noodles were tested separately when they should have been tested as one productThe high lead readings were because the samples had remained open for a “considerable period” before being testedThe “No added MSG” label was due to lack of clarity on the concerned regulations.The FSSAI though, has a different point of view. Holding that there was “overwhelming evidence” that the lead content was beyond permissible limits, Nestle India has been directed to withdraw and recall the product with immediate effect..Furthermore, Nestle was issued a show cause notice as to why the product approval for Maggi should not be withdrawn..Conclusion.As things stand, three forums are already involved in this matter. One, the CJM’s court in Uttar Pradesh where Nestle officials have been summoned, two the National Commission where the government has filed a first of its kind plaint, and the High Court of Uttarkhand where Nestle India has challenged the ban..Whether any civil or criminal liability will arise, and who will initiate the same, remains to be seen.