Recent controversy over the excess lead content and presence of MonoSodium Glutmate (MSG) in “MAGGI” has attracted the attention of the entire nation to the implementation of the food safety laws. The collateral damage of this has been caused to the celebrities who have been endorsing the products in electronic/print media. This article seeks to analyse whether the celebrities brand ambassadors can really be held liable in the present case.
Indian law with respect to MSG
MSG is a flavor enhancer and is allowed to be added to food as per the Appendix-A of the Food Safety and Standards (Food Products Standards and Food Additives), Regulations, 2011. However, the regulation specifically prohibits its use in certain specified food items and one of such item is Noodles (dried products). So, if MSG has been found in the Maggi where it is totally prohibited to be used then Nestle will have to explain as to how it reached the food item.
Indian law with respect to ‘lead’
The Food Safety and Standards (Contaminants, Toxins, and Residues) Regulations, 2011 provides limits for different kinds of metal contaminants, crop contaminants and naturally occurring toxic substances & insecticides etc. in a food article. It clearly states that no article of food shall contain any crop contaminants or insecticides which are not mentioned in the regulation. Under this regulation limit for the lead content has been mentioned for certain specified items and for non-specified food item, limit of 2.5 Parts per Million by weight has been given. Noodle is not specifically mentioned in the list of specified items, so, the maximum limit for lead content would be 2.5 Parts per Million by weight. Therefore, if the during lab analysis lead content is found to be more than 2.5 parts per million by weight then, it would be violative of the regulation and thus punishable.
In both the abovementioned circumstances, primarily the manufacturer can be held liable under the food safety and standards act. However, the question which has been trending in the media is whether the celebrities who were endorsing such products can also be made liable or not. It has been widely reported in the media that some of the celebrities have already been issued notices by the food safety department. So, here, in this article I seek to analyse whether it is possible to punish such celebrities for appearing in advertisements and what all different views are possible on this issue. I will start with the provisions of the Food Safety & Standards Act first. Section 24 of the Food Safety & Standards Act prohibits misleading or deceiving advertisements. It further states that no person shall falsely represent the standard, quality and quantity of the food item or shall give public any guarantee without scientific justification. Further, section 53 prescribes penalty for misleading advertisement. As per this section, any person who is party to the publication of misleading/falsely describing food advertisement shall be liable to a penalty up to ten lakhs. The expression “any person who is party to the publication” is very wide and might include actor, directors, advertisement makers etc. Now, the question arises when this provision is so clear and widely worded that it can cover the actors, directors etc., will it be correct to penalize to every person howsoever remotely connected he might be with actual publication and decision making. The answer to this question can be seen in section 80 of the food safety and standards act. Section 80 mentions different kinds of acceptable and non-acceptable defenses available in cases of violation of the provisions of the food safety & standards act and regulations made therein.
Defences
Section 80 discusses five kinds of defences:-
- Defence relating to publication of advertisement
- Defence of due diligence
- Defence of mistaken and reasonable belief not available
- Defence in respect of handling food
- Defence of significance of the nature, substance or quality of food
For the purposes of the present facts, only first two kinds of defences are relevant. Under the defence available relating to publication of advertisement (Section 80 A), the accused person will have to prove that he carried out business of publication of advertisement and advertisement was done in the ordinary course of business. However, this defence will not be available in three circumstances:-
- Where accused should reasonably have known that publication of advertisement was an offence – Under this category, those advertisement makers might get excluded who were aware of the content of the product and their role was not limited to only the publication part of it.
- Where the accused was previously informed in writing by the authority that such publication would constitute offence
- Where party to the publication of the advertisement is also the food business operator of such food item.
After analyzing the defence relating to publication of advertisement, it seems that this defence is primarily available to the publishers of the advertisements like newspapers, printers, TV channels etc. Now, it will be a moot question whether this defence can also be extended to the celebrity actors and directors because though they might be a party to the publication, they cannot be said to be carrying out business of publication of advertisement and such advertisement was done in the ordinary course of their business.
Next, under the defence of due diligence (section 80 B), it is provided if the person proves that he took all the reasonable precaution and exercised all due diligence to prevent the commission of offence then it would be considered valid defence. Further, under section 80 B (2), it is provided that if a person acts on the information supplied by the other person then it would be a valid defence. This defence is general in nature and is not limited to offence of mis-leading or false advertisements only. Now, it has to be analysed whether this defence is available to the celebrity actor and directors or not. From the facts and circumstances of individual cases it would have to be deciphered whether the celebrity actor and director took all the reasonable precaution or not and whether he exercised all the due diligence or not. Reasonable precaution can be, inter alia, deciphered from the agreements entered into by such celebrities with the manufacturers or the advertisement makers. It can also be deciphered from the fact whether prior to becoming party such advertisement, the celebrities took any effort to check the genuineness of the claim made about the food item and whether he was aware of the various approval required for the product. There can be various ways in which “reasonable precaution” & “due diligence” can be proved, however, any knowledge on the part of the celebrity about the mis-leading nature of the product can be fatal to his interest like if celebrity says that he knew that the food item was hyped and he did not believe in its effectiveness then the defence of “reasonable precaution” & “due diligence” would not be available to him he can be held liable.
Further, under section 80 B (2), it is provided that if a person acts on the information supplied by the other person then it would be a valid defence. This defence seems most apt for the celebrity actors and directors especially when the dispute involves Monosodium glutamate and lead. Celebrities cannot be expected to know and understand the level of monosodium glutamate and lead. It would be a farfetched argument that celebrities are expected to know as to how the monosodium glutamate entered the food item when manufacturer themselves are denying it. Here, the situation of celebrity can be compared with that of the Food Safety & Standards Authority of India (FSSAI), the apex regulatory body who grants product approval for proprietary food items like MAGGI. FSSAI grants licence of manufacturing and sale such products on the basis of samples and information presented to them & after inspecting the manufacturing unit of the manufacturer. Such licence number is mentioned on the label of each packaged food item with the logo of the FSSAI. Such licence number and the logo on the packaged food clearly gives an impression that the regulatory body must be undertaking routine inspection of such manufacturing units. Despite all these powers, FSSAI and state food authorities allowed the manufacturing unit to come out with products with high lead content and Monosodium Glutamate. It would be interesting to see whether food safety authorities visited the manufacturing units of the Nestle before granting manufacturing licence to them and whether any periodic check was undertaken by them. Now, going by the logic which is applied on the Celebrities, should FSSAI also not be held liable? Celebrities act on the basis of information supplied to them and script provided to them. If the regulatory body and the state food safety authorities themselves are party to the whole situation, it would be unfair to point fingers at the celebrities brand ambassadors, at least in the present case. It may be argued that they have the moral responsibility to be doubly sure about the claims made about the food item. However, the present case is on totally different footing. It is primarily not about whether the health benefits claimed about the food item is correct or not. The present case is about the present of prohibited material in the food item and for which only manufacturer can be made answerable and not the celebrities.
Kunal Kishore is an Advocate and writes on food safety laws. He can be contacted at adv.kunalk@gmail.com
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