For the first time, the consumer affairs ministry has filed a class action suit under a provision in the Consumer Protection Act, 1986, against Nestle. The government’s decision to sue for damages reportedly in the range of Rs 640 crore comes after the consumer goods company’s popular Maggi noodles were alleged to be unsafe for human consumption because they were found to have hazardous levels of lead. Nestle is also accused of misrepresenting the product in advertising and on the packaging, and Maggi has been banned in many Indian states. The company is challenging the ban in the Bombay High Court, which has reserved judgment on the matter.
The government’s unprecedented use of the class action device must be seen in this context. While the invocation of a class action — a predominantly US phenomenon — is welcome, the government’s choice of contest appears built on sadly flimsy foundations. Since the scare broke out in June, the food safety regulator’s contention that Maggi contains monosodium glutamate, or MSG, and high levels of lead has been hit by findings from labs accredited by the Food Safety and Standards Authority of India (FSSAI) and labs abroad, such as in the UK, Singapore and Canada. Made-in-India Maggi has passed tests in those countries, casting doubt on the integrity and ability of test labs and facilities in India. Far from building confidence in a robust food safety regime, the contradictory results raise questions about the competence of the FSSAI and the job it is doing in certifying other food products as fit for consumption.
This is a pity, as a class action, in the form in which it is wielded in the US, can be a powerful tool for a group of people with few individual resources to take on a much larger adversary. Essentially, one of the parties, commonly the plaintiff, can represent an entire collective, or “class”. Instead of each aggrieved individual bringing their own suit, the class action would allow for the resolution of the claims of all members — whether or not they know they were injured. Examples include the tobacco settlement of 1998 and the Deepwater Horizon oil spill. The formal absence of such a procedural instrument arguably hindered the pursuit of justice for the victims of the Bhopal gas disaster. Whatever happens in its battle against Nestle, the government should incorporate a class action mechanism that would empower those affected by such malfeasance to seek justice, even without the state as a party.