The Supreme Court on Tuesday sought a response from the government on Nestle India’s plea seeking the recall of the National Consumer Disputes Redressal Commission’s (NCDRC) order last week that directed the retesting of 16 samples of its popular Maggi instant noodles to check the safety of its consumption.
A bench headed by justice Dipak Misra, while issuing a notice to the Centre, posted the matter for further hearing on Wednesday, when it will hear Nestle’s prayer for a stay of the apex consumer court’s December 9 retesting order.
Senior counsel L N Rao, appearing for Nestle, argued that the Bombay High Court’s August 13 order lifting the ban on nine variants of its fast food was in its favour and “any repeated sending of its samples is causing so much harm. Let them not proceed for further testing,” he said.
He further contended that the tests were already ordered and conducted on October 15 on 13 samples of Maggi noodles from nine batches, and the samples were sent to the Central Food Technological Research Institute in Mysuru, but till now the test results haven’t come.
The company argued that despite its noodles having undergone several rounds of testing at accredited and notified labs, and being safe for consumption, the commission has wrongfully directed fresh rounds of testing. Besides, the testing is required to be done only for lead and not for any compound or derivative of lead. Such a direction would, in any event, “vitiate the test,” it added.
Nestle, in its appeal, said that “the commission had directed that out of withdrawn stocks of Maggi noodles in the custody of the Food Safety and Standards Authority of India (of which 100 batch numbers were randomly noted by the local commissioner), 16 samples be sent for testing for presence of lead in any form and monosodium glutamate (MSG), including their quantity in the samples at the Export Inspection Council of India, Chennai.”
The consumer court has gravely erred while ordering further testing, in spite of the fact that samples of withdrawn Maggi noodles have already been tested in FSSAI notified and accredited laboratories, the petition stated, adding that the company in consumer interest in the past few months had voluntary undertaken testing of 3,566 samples of its instant noodles at nine different labs in India and abroad including samples tested at FSSAI-notified and NABL-accredited labs in India, and all test results have shown Maggi noodles to be compliant.
According to Nestle, the consumer court should have appreciated that since the alleged defect in goods was sought to be tested with reference to permissible limits for lead as prescribed under the Act as 2.5 parts per million, which is a miniscule quantity and can only be tested by highly qualified and well-equipped accredited lab, any deviation from the prescribed methods of testing would render the tests “inaccurate and invalid.”
Last week, the Supreme Court had sought response from Nestle India and the Maharashtra government on an appeal by FSSAI demanding countrywide ban on the company’s popular Maggi noodles. While food regulator FSSAI challenged the high court’s order lifting ban on nine variants of the fast food, attorney-general Mukul Rohtagi, appearing for FSSAI, had told the bench that it was not pressing for the ban on maggi now.
“The new food adulteration law mandates the laboratories are accredited by National Accreditation Board for Testing and Calibration Laboratories (NABL) and recognised by the regulator. However, until the accreditation process is completed the ministry had permitted the laboratories with old accreditation to continue testing. The HC now says that you cannot conduct any tests until the accreditation is complete. As a result all 72 laboratories do not have enough work,” Rohatgi said.
The regulator, in its plea, had questioned the “sanctity” of the samples provided to government-approved laboratories for the re-test. It said the HC had asked Nestle to provide samples whereas they should have been picked up randomly from the market. This direction vitiated the procedure of re-testing and a neutral agency should have lifted the samples, it said. After a five-month ban on its Maggi instant noodles by the national food watchdog, Nestle relaunched its product in the market on November 9.
An Uttar Pradesh government order recalling Maggi noodles for containing excessive lead in May triggered a chain reaction across the country. In June, the company had announced withdrawal of the Maggi noodles, incurring a one-time removal cost of R451.6 crore. A day later, FSSAI ordered the company to recall its products. Nestle India later withdrew about 30,000 tonnes of popular instant noodles from the market.