The recent controversy over the excess lead content and the presence of monosodium glutamate (MSG) in Maggi noodles has attracted the attention of the whole country for implementing food safety laws. In the process, celebrities endorsing the product have also been affected. Can they really be held liable? Before that, we need to understand two laws.
First, the Indian law with respect to MSG, which is a flavour enhancer and is allowed to be added to food as per appendix A of the Food Safety & Standards (Food Products Standards & Food Additives) Regulations, 2011. However, the regulation specifically prohibits its use in certain specified food items and one such is noodles (dried products). So, if MSG has been found in Maggi, then Nestle has to explain how it reached the food item.
Second, the Indian law with respect to lead. The Food Safety & Standards (Contaminants, Toxins & Residues) Regulations, 2011, clearly state that no food article shall contain any crop contaminants or insecticides which are not mentioned in the regulation. Under this regulation, a limit for lead content has been mentioned for certain specified items, and for non-specified food items a limit of 2.5 PPM by weight has been prescribed. Noodles are not specifically mentioned in the list of specified items, so the maximum limit for lead content would be 2.5 PPM. Therefore, if during lab analysis lead content is found to be more than this, it is violative of the regulation and punishable.
In both these circumstances, it is primarily the manufacturer who can be held liable under the Food Safety & Standards Act. However, what about the celebrities endorsing such products? It has been reported that some celebrities have already been issued notices, but should they be punished?
Section 24 of the Food Safety & Standards Act prohibits misleading or deceiving advertisements. It states that no person shall falsely represent the standard, quality and quantity of the food item or shall give public any guarantee without scientific justification. Section 53 prescribes penalty for misleading advertisements. It notes that any person who is party to the publication of misleading/falsely describing food advertisement shall be liable to a penalty of up to R10 lakh. The expression “any person who is party to the publication” is very wide and might include actors, directors, advertisement makers and so on. The question is, when this provision is clear and widely worded that it can cover any person, is it correct to penalise everyone howsoever remotely connected s/he might be with actual publication and decision-making? The answer lies in section 80, which mentions different acceptable and non-acceptable defences available in cases of violations.
Section 80 discusses five kinds of defences:
Defence relating to publication of advertisement;
Defence of due diligence;
Defence of mistaken and reasonable belief not available;
Defence in respect of handling food; and
Defence of significance of the nature, substance or quality of food.
For the purpose of the current case, only the first two defences are relevant. Under the one relating to publication of advertisement (section 80A), the accused will have to prove that s/he carried out business of publication of advertisement and advertisement was done in the ordinary course of business. However, this defence will not be available under three circumstances:
Where the accused should reasonably have known that publication of advertisement was an offence. Under this, those advertisement makers might get excluded who were aware of the content of the product and their role was not limited to only the publication part of it.
Where the accused was previously informed in writing by the authority that such publication would constitute offence.
Where party to the publication of the advertisement is also the food business operator of such food item.
It appears that defence relating to publication of advertisement is primarily available to publishers such as newspapers, printers, TV channels, etc. The question arises, whether this defence can also be extended to actors and directors because, though they might be party to publication, they cannot be said to be carrying out business of publication of advertisement and such advertisement was done in the ordinary course of their business?
Next, under defence of due diligence (section 80B), if the person proves that s/he took all reasonable precautions and exercised all due diligence to prevent the commission of offence, then it would be considered valid defence. Under section 80B(2), it is provided that if a person acts on the information supplied by the other person, then it would be a valid defence.
This defence is general in nature and is not limited to offence of misleading or false advertisements only. It has to be analysed whether this defence is available to actors and directors or not? From the facts and circumstances of individual cases, it would have to be deciphered whether the actor or the director took all reasonable precautions or not and whether s/he exercised all due diligence or not? Reasonable precaution can be, inter alia, deciphered from the agreements entered into by such celebrities with manufacturers or advertisement makers. It can also be deciphered from the fact whether prior to becoming party such advertisements, celebrity actors took any effort to check the genuineness of the claim made about the food item and whether s/he was aware of the various approvals required for the product. There can be various ways in which ‘reasonable precaution’ and ‘due diligence’ can be proved; however, any knowledge on the part of the actor about the misleading nature of the product can be fatal to her/his interest. If an actor says s/he knew that the food item was hyped and s/he did not believe in its effectiveness, then the defence of reasonable precaution and due diligence would not be available to him and s/he can be held liable.
Under section 80B(2), it is provided that if a person acts on the information supplied by the other person, then it would be valid defence. This defence seems most apt for celebrity actors and directors, especially when the dispute involves MSG and lead. It would be a far-fetched argument that celebrity actors are expected to know as to how MSG entered the food item when the manufacturer itself is denying it.
Here, the situation of a celebrity actor can be compared with that of the Food Safety & Standards Authority of India (FSSAI), the apex regulatory body granting product approval for proprietary food items like Maggi. FSSAI grants manufacturing licence for sale of such products on the basis of samples and information provided and after inspecting the manufacturing unit. This licence number is mentioned on the label of each packaged food item with the logo of FSSAI. It clearly gives the impression that FSSAI must be undertaking routine inspection of such manufacturing units. Despite these powers, FSSAI and state food authorities allowed the manufacturing unit to come out with products with high lead content and MSG. Going by the logic applied to celebrity actors, shouldn’t FSSAI also be held liable? Celebrity actors act on the basis of information supplied to them and the script provided to them. If the regulatory body and the state food safety authorities themselves are party to the whole situation, it would be unfair to point fingers at the celebrity brand ambassadors, at least in the present case. It may, however, be argued that they have a moral responsibility to be doubly sure about the claims made about the food item. But the Maggi case is on a different footing. It is not primarily about whether the health benefits claimed about the food item is correct or not, it is about the presence of prohibited materials in the food item and for which it is only the manufacturer who can be made answerable and not the celebrities.
The author is an advocate and writes on food safety laws
adv.kunalk@gmail.com
For Updates Check Editorials and Columns; follow us on Facebook and Twitter