13 August:the ban on Nestle’s Maggi noodles is set aside.
Consipiracy behind it:
Nestle India has been destroying evidence, he alleges. It is a serious charge. Why has Nestle been in such a tearing hurry to burn thousands of tonnes of Maggi noodles? Thirty thousand tonnes, to be exact. Worth almost Rs320 crore. Gone. Poof! Up in smoke. All in just a few weeks.
Khambata1:is a serious matter, because if we detect lead, which is a serious contaminant, in a few samples, then we are not shutting down their business. These products are valid for nine months; we gave them the opportunity to come back. They could have come back in June and asked us what are we doing, have the fourth part tested. It would have been a week, two weeks, may be even less to get those results and if there was a variance, it would have gone to a referral lab. Why didn’t they do that?
On 11 June, Nestle India filed a petition in the Bombay high court challenging the ban imposed on Maggi noodles
That came after the Food Safety and Standards Authority of India (FSSAI) on 5 June and the Maharashtra FDA on 6 June ordered Nestle to withdraw all nine variants of Maggi instant noodles from the market, terming them unsafe and hazardous for human consumption.
In various tests, the regulators found overwhelming evidence that the product contained lead far above the maximum permissible limit of 2.5 parts per million. In the order, FSSAI also asked Nestle to stop the production, processing, import, distribution and sale of the product with immediate effect. However, there was no directive given to destroy the stocks.
Nestle charged:
*That its order cancelling the product approval was arbitrary and that both FSSAI and the Maharashtra FDA had passed those orders without any show-cause notice.
There was no show-cause notice because there was overwhelming evidence of lead in Maggi noodles. Before the ban order, on 5 June, several states had tested Maggi samples and found lead in excess of 2.5 parts per million. Uttar Pradesh, Bihar, Delhi, Tamil Nadu, Maharashtra, Gujarat, Jammu and Kashmir and Uttarakhand—each of them had conducted tests and decided to ban the product. Before passing the ban order, FSSAI collected 72 samples from across the country and found excess lead in 30 of them.

And it’s not like the regulator didn’t give Nestle a hearing. On 4 June, a day before passing the order, FSSAI and senior Nestle executives met. The meeting was attended by Paul Bulcke, global CEO of the Swiss company, Etienne Benet, managing director and CEO of Nestle India, along with a few other company officials. On its part, Nestle said that the whole controversy had been created out of confusion and a lack of proper understanding of the issue. FSSAI didn’t find the explanation satisfactory.
Under the Constitution, it is the responsibility of the regulator that food has to be safe and fit for human consumption and if found that it is unfit and substandard, then under the Act, FSSAI can pass orders to stop manufacture and sale in the public interest and in interest of consumers.” 1. That multiple tests of the same sample across laboratories had shown different results. 2. the procedure followed by the laboratories was faulty. 3. They were not even qualified to carry out those tests in the first place. 4. The laboratories had tested the noodles and tastemaker separately, while they should have been tested as a composite, in the way Maggi is consumed.
FSSAI’s lawyers argued that there are several people who consume the product separately; does that mean they should be harmed by the higher lead content found in them separately? 5. Nestle also alleged that some of the samples were way past their shelf life and while testing, they remained unsealed for three months and as such the test reports could not be relied upon.
Khambata comes in. For good measure, he is not alone—there’s Anil Singh, the lawyer representing FSSAI, and Mahmood Pracha, representative for the chief executive of FSSAI, Yudhvir Singh Malik.

it is playing with the lives of countless people who consumed Maggi noodles. On the flip side, by banning Maggi, the regulator did nothing out of the ordinary. In fact, it only complied with what it was mandated to do.

How could its action in the interest of consumers be wrong?

The Food Safety and Standards Act, 2006, is the bedrock of food standards and regulation in India. It is FSSAI’s bible. In its submission before the court, FSSAI said that it followed the Act to the T, right from the day the Maggi issue cropped up.

in the court, Nestle claimed that it had carried out not one, but 2,700 tests across the world. And there, no red flags were raised. No high content of lead. Maggi was found to be safe.UK AUS CANADA SINGAPORE

n the court, Khambata pointed this out in as many words: “Any food business operator who is confident of his case, that this is a stray report, a malafide report, the Act itself gives a mechanism to send one sample to an accredited laboratory. It is one of the most significant silences in the matter, that Nestle, with all the vociferous nature of its case and 2,700 reports from all over the world, has never thought of invoking this right.”

“It is going to be my argument that you cannot come into the court by brandishing 2,700 reports if you don’t submit yourself to the discipline of the statutes in the country in which you operate and make profits. This is the simplest way of testing. I am not saying that they are right or we are right. Test it. Test our reports. If we are wrong, there we are proved to be wrong. How are you reacting—that all the accredited laboratories in India—none of them are trustworthy? Not one is worthy of the Nestle standard?”

The Food Safety and Standards Act gives enormous power to a food analyst. So, it is not necessary for the food analyst to test the food item in an accredited food laboratory( that has been certified by the National Board for Accreditation of Laboratories (NABL). But it may or may not be a notified laboratory.) The analyst is allowed to conduct the test on his/her own and this can be done in his/her private laboratory or any other state or notified laboratories. Only in the case of imported food is the analyst required to get the analysis done at a notified laboratory(recognized by the state and central food authorities and accredited by NABL or an equally qualified accreditation body.)

Under the Act, when an item is picked up for random sampling, the food safety officer has to divide the item into four parts. One part is sent to the food analyst for testing. On receipt of the package, the food analyst shall note the seal and the condition in which he/she has received the package and in 14 days, he/she must send the report to the officer.
The Act has a provision for an appeal if a company is not in agreement with the food analyst’s report. The food officer can send the second part (of the sample) to an accredited laboratory. If there is any difference between the two reports, the officer can then send the third part (of the sample) to the referral food laboratory whose reports will be the final say in the matter.

//The Maharashtra state report on the presence of high lead content in five samples of Maggi came out on 5 June, the day of the FSSAI ban order. The same were sent to the company, the very same day. In the letter, Nestle was told that it could ask for the test to be done again if it didn’t agree with the analysis. But Nestle didn’t.

Not just that, it didn’t even mention this in its petition. That’s clearly a case of suppressing facts.

It is important to safeguard public health. It is important for foreign investments. “Why do investors come to India?” he said. “They come here because we have the rule of law. That is our main USP against China, which doesn’t have it.”

Nestle side:

the allegation that Nestle has been destroying evidence by burning Maggi. “It was done with full consultation with FSSAI. It was mutually decided and agreed upon,” said Chagla. “We were reporting o0n a daily basis. Let me put forward the minutes of the meetings. This was no clandestine approach.” According to the Act, a food recall procedure expressly states that the recalled food ought to be destroyed. Nestle wasn’t burning Maggi noodles on a whim. FSSAI knew all about it. So much so that every day, Nestle was sending an update to the regulator, along with pictures of the incineration for factual verification.

That’s because the food analyst (Amit Singh in Delhi) in his report said that he did not rely on any other external report. But the Avon report had his name. It was carried out under his personal supervision. “In the report of the food analyst,” continued Chagla, “Dated 27 May and completed on 2 June, the lead content is 1.75 ppm in the noodle and 4 in the tastemaker. But there is no mention of anything being outsourced.

t is a curious question. But then, there is the other bit which is fishy. Specifically, the sample quantity in the Avon report: 300g.

Now, Maggi packets are sold in only two quantities: 280g and 420g. “What went to Avon?” asked Chagla. “The sample received by the food analyst is one, so how does it go to two different people? It is a package so the entire package should be sent.”

It is a pertinent point. Did the food analyst open the packet? If that be the case, then the test has no sanctity because the Act clearly states: Foods sold in packaged condition shall be sent for analysis in its original condition without opening the package.

The referral labs in this Maggi case, are they accredited? Yes and no. The lab in Pune is accredited, but not for testing lead. Of the 72 tests conducted on Maggi samples in India, how many were carried out in accredited labs? None that met with all requirements for testing Maggi. That is, if you don’t count the Avon report. Is accreditation for testing lead and certain spices important? Yes. Only so that the lab can come up with an accurate test result. What about the intended use and composite test, what gimmickry is that? Well, that’s what the Act says. The test must be conducted in the “intended use” form. Nestle clearly labels that the noodles must be added in water along with the tastemaker and boiled. So, that’s that.

JUDGEMENT

For instance, on the credibility of tests carried out: “It is not in dispute that the Laboratories in which these food samples were tested were either not accredited by NABL or not recognized by the Food Authority... or even if they were accredited or notified, they were not accredited to make analysis in respect of leading the samples. There is no material on record to show whether the procedure of testing samples which is mentioned under the Act... has been followed. There is a grave doubt about the samples being tested at Avon Food Lab (Pvt.) Ltd. and even if they are so tested, prima facie, it does appear that procedure of testing the samples has not been followed.”

On that count, the court ruled in favour of Nestle that the sanctity of the fourth sample held by the regulator was not tenable. Thus, a retest has been ordered but only of the samples held by Nestle. The court has directed the company to submit five samples each of nine variants of Maggi noodles for tests at laboratories certified by NABL—in Jaipur, Hyderabad and Mohali. The tests have to be carried out in six weeks. If the test results show the presence of lead within permissible levels of 2.5 ppm, Nestle is free to resume the manufacture and sale of Maggi noodles.

Does the FSSAI have egg on its face? Yes. Is the crisis surrounding Maggi over? Far from it. FSSAI has the option of challenging the high court verdict in the Supreme Court. And then, there is the other case—on 11 August, the ministry of consumer affairs filed a complaint against Nestle in the National Consumer Disputes Redressal Commission, seeking about Rs640 crore in damages for alleged unfair trade practices, false labelling and misleading advertisements.