MUMBAI: The Bombay High Court today declined to grant relief to Nestle India by rejecting its plea for stay on orders of food regulators banning nine variants of Maggi noodles from the Indian market as they were harmful to public health.
Hearing a plea of the Indian arm of the Swiss multinational, Justices V M Kanade and B P Colabawala were of the view that due to the impunged orders, Maggi products had already been withdrawn from the shops and hence there was no need to grant a stay on the ban.
The company had moved the High Court challenging the ban imposed by a June 5 order by Food Safety and Standards Authority of India (FSSAI) banning nine variants of the popular instant snack.
It had also questioned a similar order by the Maharashtra Government prohibiting the sale of the same products on the ground they were unsafe and harmful to the health of people.
The bench said the authorities were entitled to prosecute the company in case of procedural lapses and if they were not satisfied with the reply of Nestle to the food authorities.
However, in case if Nestle was to be prosecuted, the Judges asked the authorities to give 72 hours notice to the company which had filed an appeal against the impugned orders.
The bench also directed FSSAI and Commissioner of Food Safety, Government of Maharashtra, to file their affidavits in reply to the company's appeal within two weeks justifying the reasons on the basis of which the ban had been imposed.
The matter has been posted for hearing on June 30.
Nestle has sought quashing of the June 5 order of Delhi-based Food Safety and Standards Authority of India (FSSAI) and its Chief Executive Officer asking the company to withdraw and recall all its nine variants of Maggi from the market as they were unsafe and harmful for human consumption.
The impugned orders also asked the company to stop production, processing, import, distribution and sale of their products with immediate effect, said Nestle.
Nestle also sought setting aside the order of Maharashtra Commissioner of Food Safety, banning the production and sale of 'Maggi' products in the State.
The company said the impugned orders do not comply with the mandatory provisions of section 34 of Food Safety and Standards Authority Act which deals with Emergency prohibition notices and orders. It said the orders were passed without any authority and without following due process of law.
The company also said the orders were illegal, arbitrary and violative of the principles of Natural Justice as well as the Constitution of India.
Nestle's counsel Iqbal Chhagla argued that the company was exporting 'Maggi' products to foreign countries such as Canada, Australia, England and Singapore and no ban had been imposed in these countries.
He said a test conducted in Singapore showed that all the 'Maggi' products were safe and healthy for the consumers.
According to the tests done by the authorities in India, there was alleged violation in three variants of 'Maggi' but ban had been imposed on all the nine variants, the Counsel argued.
Chhagla further said that the jurisdiction of the Chief Executive Officer of FSSAI was limited. The Food Authority, he said, was empowered to ban the product only if it was unsafe and that too in emergency situations. He said FSSAI cannot go into the aspect of a sub-standard product.
"Maggi was neither sub-standard nor unsafe" as had been made out by the food authorities, he argued.
Nestle's Counsel further said food authorities had objected to the words "No added MSG (monosodium glutamate)" scribbled on the label of the product. They were of the view if there was no MSG in 'Maggi' then why should the company say that on the label. He said the company had offered to withdraw these words from the label.
He said that procedure was not followed under the Act by the authorities while banning 'Maggi' as notice was not served to the company. He said Nestle had not compromised with the quality of its products and the company had built up its reputation over the years because of the quality of products.
Moreover, section 34 of Food Safety and Standards Act, which was invoked in this case to ban the product, can be used only in case of emergency. However, there was no situation prevailing for them to invoke this provision of law, the lawyer said.
FSSAI Counsel Mahmood Pracha argued that the company had spent a staggering amount of Rs 445 crores on advertising its products last year. If this money was used in making and not branding products, it would not have given rise to such a situation. He said all procedures had been duly followed in issuing the impugned orders.
Anil Singh, acting Advocate General of Maharashtra, said the food authorities had powers to ban products if they were unsafe and hazardous to health. He too argued that all the procedures had been followed in every respect.
Nestle argued that the application of standards or tolerance limit by the authorities in the tests conducted by them for the presence of lead in its products was "incorrect and against the law."
The finding of impugned orders that the cake and tastemaker should be tested separately are "erroneous and liable to be set aside," it said. The company also denied misbranding or violation of packaging and labelling regulations as alleged by the impugned orders.
The directions in impugned orders to withdraw and recall its product "Maggi Masala Oats" was arbitrary and devoid of merits. Nestle denied that its products posed a health risk as alleged by the impugned orders.
The company denied allegations of food authorities in India of the presence of lead in excess of permissible levels of 2.5 parts per million (ppm) and refuted charges that the information given on labels and package of its products were "misleading".
Nestle further said that the allegation of lead presence in its products was "non-specific and vague" as it did not say how the product was misbranded.