The Bombay High Court on Thursday set aside the countrywide ban on nine variants of Nestle’s Maggi instant noodles, saying the national food regulator had acted in an “arbitrary” manner and not followed the “principles of natural justice” while banning the product.
The court, however, ordered Nestle India to conduct fresh safety tests on the product before relaunching it.
The Indian unit of Nestle had challenged a June 5 order of the Food Safety and Standards Authority of India (FSSAI) and a similar order by the Maharashtra Food and Drug Authority (FDA) directing it to withdraw all variants of the noodles, citing the presence of excessive lead.
While setting aside the ban, Justices V M Kanade and B P Colabawalla clarified that Nestle India has to send five samples of the noodles in its possession for fresh tests before bringing it back to the market.
The court said it was still concerned about “public health and public interest”. “Even though it is two-minute noodles, it took us a lot of time,” the court said, minutes after setting aside the ban.
The tests will be carried out within six weeks at three centres accredited and recognised by the National Accreditation Board for Testing and Calibration Laboratories (NABL): Vimta Labs, Hyderabad; Punjab Biotechnology Incubator, Mohali; and CEG Test House and Research Centre Pvt Ltd, Jaipur.
Reacting to the order, Nestle welcomed the decision and said it would undertake fresh tests of Maggi noodles.
Referring to the ban, the high court observed: “(The) principles of natural justice have not been followed before passing the impugned order and on that ground alone impugned orders are liable to be set aside, particularly when the petitioner (Nestle India), one day prior to the impugned order, had given a press release that it had recalled the product till the authorities were satisfied about the safety of the product.”
The court also said that the food labs engaged by the FSSAI, which found excessive lead in Maggi noodles, were not “authorised” under the FSS Act and Regulations. Therefore, the results could not be relied upon, it said.
Besides, the mandatory procedure of giving a notice under the provision of sampling and analysis was not followed, the court said.
During the arguments, FSSAI had alleged that Nestle India could not claim any relief as it had suppressed facts and attempted to destroy evidence. The High Court, however, negated this line.
Another question was whether FSSAI could impose a ban on Maggi noodles on the grounds that the lead found in tests was in excess of what the company had represented on its product approval application —- it was below the maximum permissible limit. The answer to this was also negative, the court said.
As to the question of whether the FSSAI had “unfettered” discretion to decide on standards to be maintained by companies such as Nestle India which manufactures proprietary food or non-standardised food, the court’s response was again ‘no’.
The court also observed that lab reports obtained by the company from its labs and other accredited labs could not be considered.
Soon after the High Court passed its order, the FSSAI and the FDA sought a stay. The court, however, observed that Nestle India had already said that it was not going to either manufacture or sell Maggi noodles and refused to oblige the two agencies. The court also allowed the company to seek approval for its tenth variant, Maggi Oats Masala Noodles.
The company had earlier argued that the CEO of FSSAI, while passing the order, had acted in an “emergent, drastic and arbitrary” fashion while raising doubts over his jurisdiction.
Nestle also argued that the food regulator had not served any notice before ordering a ban. Nestle claimed it has been operating in India for 30 years and had a global footprint.
The government has also filed a class action suit against Nestle India seeking, Rs 640 crore in damages for alleged unfair trade practices, false labelling and misleading advertisements.
“Nestle India respects the decision made on August 13 by the Honourable Bombay High Court to revoke the ban order passed by the Food Safety and Standards Authority of India (FSSAI) and FDA, Maharashtra, on Maggi noodles and will comply with the order to undertake fresh tests,” the company said.