No 'instant' end to this impasse

Avoidable Imbroglio: FSSAI's hasty and unfair decision to impose a ban on Maggi has drawn flak
Last Updated 22 August 2015, 18:36 IST
The FSSAI should have followed well-established international standards before enforcing a ban on popular Maggi products. It acted in haste and was carried away by trial by media over alleged high levels of MSG and lead. It also did not test all the nine variants of noodles sold by Nestle in the country. The regulator should have doubled checked the values before initiating the ban. Also, there is a need for highly transparent and technically valid methods and friendly measures to avoid incidents like Maggi. A report.

Nestle’s Maggi 2-minute noodles are loved by people of all ages, be it a toddler or a 70-year old, across the country. The quick-to-make noodles have been a staple snack of every Indian household in one way or another. Having acquired a cult status, especially among those of our generation, a sudden ban on such a beloved product has left many broken hearts in its wake.

An incident in UP, where higher levels of lead and MSG were found in a few samples of Maggi, caught the attention of the media out of the blue. However, even before any facts could be duly verified by accredited agencies, the incident became a national issue. A media trial began, and as has been the trend in recent times, a verdict was soon handed out making it the most discussed household news. As a result, several states conducted random tests on samples of different variants of Maggi, with some apparently finding similar high levels of lead and MSG in samples.

The Food Safety and Standards Authority of India (FSSAI) banned Nestle Maggi through an order dated June 5, 2015, which has subsequently been set aside by the Bombay High Court. The high court has done so on the premise that a person against whom an order is passed should be given an opportunity to explain themselves, and in accordance with principles of natural justice should be duly heard. No opportunity was given to Nestle to present its case and even the show-cause notice was issued to the company only after banning its product.

There were totally nine variants of Maggi available in India; and although the tests were conducted only on a few  variants, a blanket ban was imposed on all of them. The tests were not even conducted in the laboratories accredited by the FSSAI. Imposing a ban on a product, which has a nationwide consumption, without following the due process of law and principles of natural justice was totally uncalled for.

This is what leads to a larger issue of public interest. The issue of ensuring public health, manufacture, and sale of safe and wholesome food to the people of India with regard to the rights of the manufacturers and sellers of the food products assumes great significance, especially keeping in view the sentiments attached with the product of Maggi.

So, what does the government do in such a scenario, and how does it react under tremendous media pressure? It takes the easy way out – a ban. The Centre itself cannot be blamed entirely, as it acted in the best interest of society at large, given the circumstances that were prevalent.

However, in a progressive environment which the government is trying to create, a ‘ban’ may not always be the ideal solution. What needs to be done is a proper framing of the rules and regulations so as to ensure that the welfare and interest of everyone is protected. The government must not only do away with its archaic legislations, but also
actively revamp the existing legislations to suit the growing needs of the present times.

The Food Safety and Standards Act, 2006, came into existence to necessitate a proper procedure for manufacture and sale of food products. At the same time, it was expected to regulate the quality of products in order to ensure that the food supplied to the consumers is safe and healthy. Being the sole regulatory authority, the FSSAI needs to be very cautious before arriving at any decision. The rules and regulations of the Act being unclear and ambiguous provide a huge opportunity to officers and food inspectors to exercise their powers in a coercive manner.

Fair, transparent procedures

These rules and regulations need to be amended in a way that the procedures for acquiring licences and random sample testing are made fair and transparent. The FSSAI should only rely upon reports of the tests conducted in laboratories accredited and recognised by it. Such an impartial, transparent and crystallised mechanism will not only ensure that food safety and standards are adhered to, but will also give a level of confidence to the food processing industry that no discrimination or bias will be caused against it.

The image of this country doesn’t need to be polished by constant interference from courts, but should be improved by implementing a fair, transparent and hassle-free procedure that extends beyond the food processing industry to industries that invest and set up their units in the country.

A favourable environment needs to be created for providing safe food products, and for ensuring that safety norms are adhered to by the food processing industry.

However, it seems that the setting aside of the ban order by the Bombay High Court, on the ground of procedural irregularities and denial of a proper opportunity to Nestle to prove its case, has not deterred the authorities from approaching the court again.

The class action suit filed by the consumer affairs ministry seeking Rs 640 crore for alleged unfair trade and deceptive practices pertaining to Maggi instant noodles may well turn out to be an act done in haste. The ministry needs to reflect on what basis and on whose behalf the class action suit has been filed when, in fact, the entire nation is eagerly waiting for Maggi to return to the shelves. The ministry should have waited for the test results of the accredited labs and for the product to be termed as “defective and hazardous” before knocking the doors of the consumer forum.

In the current scenario, it would be prudent for the government, all the concerned authorities, and the food processing industry, to exercise restraint before any solution is arrived at by the courts of law. As of now, there seems to be no end to this impasse.

The Making of Maggi Mania: Chronology of events

In January 2015, a food inspector in Barabanki of Uttar Pradesh  was suspicious of the “No MSG level” label on a Maggi noodles packet and sent it to the State Food Laboratory in GorakhpurState lab found MSG in the product. FSSAI and Nestle were informed and the samples were sent to the referral laboratory in Kolkata
The referral laboratory gave its report after three months. It reported much higher level of lead (17 ppm) as against the permitted level of 2.5 ppm

Subsequently, samples from other batches were tested in Delhi and nine other states
Out of nine variants of Maggi noodles, only three variants were tested

Out of the 72 samples tested, in 30 samples lead was in excess of 2.5 ppm. In the remaining 42 samples, lead quantity was within the limit

On June 5, Nestle issued a press statement saying it was taking the product off the shelves till its name is cleared

The same day, at 1 pm, Nestle representatives met the FSSAI officials, who informed the company on the lead content and labelling issues. Explanation was sought from them

Later that afternoon, the FSSAI ordered withdrawal and recall of all nine variants of Maggi instant noodles from the market

Three main charges: (a) presence of lead
(b) misleading labelling information of ‘No Added MSG’ and (c) release of Maggi Oats Masala Noodles without product approval and risk assessment studies

Nestle agreed to rectify the label  
On June 6, Maharashtra Food Safety Authority banned Maggi in Maharashtra
Nestle moved Bombay High Court   

ASSOCHAM writes to Prime Minister

Recent incidences of food recall coupled with onslaught in media has shaken confidence of the industry thereby risking an investment of over Rs 90,000 crores  and an estimated export of over USD 40 billion, which will impact livelihoods, farmers, agri-wastages, inflation and moreover investment climate in India

Now, the consumer distrust is spilling over to other food categories as well.  As a result of the recent events, an impression is gaining ground amongst the public that all branded packaged foods in India are unsafe

 Based on FSSAI’s view, some state authorities have been coercing retailers to remove all such packages of noodles that carry the phrase ‘no added MSG’ from the shelves

Government should clearly lay down guidelines to ensure that authorities refrain from making press statements and taking any coercive action even before an adjudicatory process under the law has concluded

Such guidelines be urgently communicated to the state food officials to save the industry which can increase 5-fold to Rs 5.65 lakh crore by 2030

The food products generate the highest employment, currently providing over 48 million employment in industry, apart from another 25 million in logistics, transportation and so onSource: ASSOCHAM letter dated July 6

FSSAI: Mired in controversy

a) Supreme Court pulls up FSSAI for exceeding its authority by virtually banning food and health supplements

b) A 2013 FSSAI advisory made prior approval mandatory for nutraceuticals that were already licensed

c) The advisory covered novel foods, functional foods, food supplements, irradiated foods, genetically modified foods, foods for special dietary uses or extracts or concentrates of botanicals, herbs or animal sources

d) Bombay High Court had ruled that FSSAI did not have the powers to issue such advisory under the Food Safety and Standards Act. The Supreme Court upheld the high court order

(The writer is a New Delhi-based advocate)

(Published 22 August 2015, 18:14 IST)

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