The Nestle-Maggi Noodles Case

BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 1688 OF 2015

M/s Nestle India Limited a Company incorporated under the provisions of the Companies Act, 1956 -Petitioner.

Versus

1. The Food Safety and Standards Authority of India- Respondent 1

2. The Chief Executive Officer, The Food Safety and Standards Authority of India -Respondent 2

3. State of Maharashtra, through the Ministry of General Administration Department, Mantralaya, Mumbai -Respondent 3

4. Commissioner of Food Safety, State of Maharashtra, -Respondent 4

Brief Facts

The petitioner namely, Nestle India Limited, a food company has instituted a writ petition in the High Court of Mumbai, against the Food Safety and Standard Authority of India (FSSAI) (R1), CEO of FSSAI (R2), the State of Maharashtra (R3) and the Commissioner of Food Safety Maharashtra (R4).

The writ is filed for quashing and setting aside of the ban orders passed by R2 on 05/06/2015 due to which the petitioner had to stop the sale and manufacture of 9 varieties of its noodle product.  

Chronology of Events

1.     January 2015:Food inspector UP sends a packet of Maggi Noodles to a lab for testing as product claims no added MSG

2.      The State Food Lab at Gorakhpur UP tests positive for MSG

3.      Same is intimated to R1, R2 and the Petitioner. Same sample is sent to Kolkatta’s referral lab on insistence of Petitioner

4.      Referral Lab finds 17ppm of lead as against prescribed limit of 2.5ppm in sample

5.      On this information 3 out of 9 varieties of petitioner s noodle products tested across various batches in labs across Delhi and 9 other states

6.      Food Analyst reported high lead in samples tested in (1) Delhi, (2) UP, (3) Tamil Nadu, (4) Gujarat (5) Maharashtra, (6) Punjab (7) Meghalaya, permissible limit in samples tested at Goa and Kerala to R2 and that out of 72 samples tested, 30 samples contained lead in excess of 2.5ppm. petitioner intimated same on 04.06.2015

7.      Petitioner in a press conference held on 04.06.2015 withdraws product on its own accord

8.      A meeting is held with representatives of petitioner and R2 on 05.06.2015, wherein petitioner is informed of high lead content is tested samples and misbranding of product. Allegedly no opportunity or notice to be heard was given. Same day R2 passed orders as annexed in Exhibit A

9.      On 06.06.2015 R4 passed an order banning all 9 varieties of Petitioners product in Maharashtra on the basis of high lead content in 5 out of 20 samples tested. Tested samples included 4 of 9 variants of product

10.  Present petition filed to dismiss and set aside orders passed on 05.06.2015 and 06.06.2015

11.  the Petition came up for hearing on ad-interim and interim relief, the Court, declined to grant any ad-interim order in view of the press release given by the Petitioner on 4.06.2015

Contentions

Petitioner:

1.      That there is violation of PNJ as orders are arbitrary, without sufficient show cause, without substantial reasons and passed in haste

2.      That orders passed by the Commissioner of Food Safety, State of Maharashtra were arbitrary as testing of products under section 43 FSS Act, was carried out by unaccredited laboratories of FSSAI

3.      That the reports of such laboratories were unreliable as end use of product not considered

o   Beyond jurisdiction of FSSA to pass such orders

4.      That the  product of the petitioner when tested in own accredited laboratories, did not contain lead in excess

5.      That the analysis of the Food Analyst was not challenged by an appeal as per section 46(4) of the FS Act, as R1 and R2 had pre-determined the issue

Submissions of Respondents

1.      That the petitioner had an alternate remedy that is of filing an appeal under section 46(4) of the Act, as a result the present petition should not be entertained

2.      That show cause was issued to the petitioner, asking them why their product approval should not be cancelled, however no response instead the present petition was filed

3.      That the contention of unaccredited lab results was raised in the rejoinder for the first time as an after thought

4.      That the petitioner engaged in destruction of evidence

5.      That the petitioner violated terms of product approval, wherein it was stated that the lead limit would be less than 1ppm, however the product contained more than 1ppm of lead on analysis. Thus the petitioner engaged in misrepresentation. (Notwithstanding that permissible limit of lead is up to 2.5ppm)

6.      That the FSSAI was acting in public interest

7.      That the orders passed were in pursuance of section 30 of the Act- R3

8.      That the orders passed were in pursuance of section 10(5), 16(1), 16(5), 22, 26 and 28 of the Act- R1 and R2

Issues

1.      Whether the writ petition filed under Article 226, is maintainable: Affirmed

2.      Whether the Petitioner has attempted destruction of evidence: Negative

3.      Whether FSSA can ban the product in the basis of lead content being higher than submitted for product approval: Negative

4.      Whether FSSA has the authority and jurisdiction to pass orders and regulate standards of manufacturers of proprietary foods: Negative

5.      Whether as per section 22 of FSS Act, a ban was imposed upon the Petitioners: Does not arise

6.      Whether the Principles of Natural Justice were violated :Affirmative

a.       On account of no show cause

b.      On account of violation of petitioners right to Audi Alteram Partem

7.      Whether orders could have been passed : Negative

8.      Whether analysis of product in equipped and accredited laboratories: Negative

9.      Whether reliance can be placed upon reports of such laboratories: Negative

10.  Whether Food Analyst entitled to test samples in such laboratories: Negative

11.  Whether FSSA established lead content beyond permissible limit and product being misbranded by Petitioner: Negative

12.  Whether ban on all varieties of products of Petitioner violative of PNJ, as tests conducted on only 3 varieties: Affirmative

Conclusion/Judgement

1.      The Court dismissed the impugned orders and allowed the petition

2.      The Court held that Petitioner should send the 5 samples of each batch which are in their possession to three Food Laboratories accredited and recognized by NABL as per the provisions of section 3(p) and section 43 of the Act, before commencing sale of product. After results show that lead within permissible limits, Petitioner can begin manufacturing.

3.      The court concluded that

o   Impugned orders were violative of principles of natural justice

o   Food Testing labs were not accredited and recognised as per the Act, thus no reliance can be placed

o   Mandatory procedure as per section 47(1) of the Act was not followed

o   Orders are arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution

4.      Petitioner to obtain product approvals for tastemaker and Maggi Oats Masala Noodles