Liability of Brand Ambassadors in case of Product Deficiency & Misbranding: The Maggi-Lead Fiasco
How Did It Begin?
Back
in 2014, officials from the Food Safety and Drug Administration Department, in
Bihar, picked up Maggi Noodles, which were being sold at a retail outlet in the
State, at random and had them tested. The tests revealed a presence of the
metal lead, at severable times beyond permissible limit. It is pertinent to
note here that as per WHO, there is no safe limit for lead in human body, as
the human body has no use of lead whatsoever. Irrespective of the detection of
lead way back in 2015, the reason it stayed out of news for almost a year is because
Bihar does not have a functional food safety
lab. The food safety wing’s lab at Aghamkuan in Patna has been
defunct for four years. The lab does not have a food analyst to conduct tests
on samples. The state food safety wing for now relies on a private Kolkata lab
which is accredited by National Accreditation Board for Testing and Calibration
Laboratories. Even after the State Food Safety Officer sent the seized
Maggi packets to the Food Analyst and they sent back reports, Section 46 (4) of
the Food Safety and Standards Act, 2006, allows the accused Company to appeal
against the report of the Food Analyst. Following the appeal, the sample was
then sent to the Central Government Laboratory, whose reports finally emerged
in 2015.
in 2014, officials from the Food Safety and Drug Administration Department, in
Bihar, picked up Maggi Noodles, which were being sold at a retail outlet in the
State, at random and had them tested. The tests revealed a presence of the
metal lead, at severable times beyond permissible limit. It is pertinent to
note here that as per WHO, there is no safe limit for lead in human body, as
the human body has no use of lead whatsoever. Irrespective of the detection of
lead way back in 2015, the reason it stayed out of news for almost a year is because
Bihar does not have a functional food safety
lab. The food safety wing’s lab at Aghamkuan in Patna has been
defunct for four years. The lab does not have a food analyst to conduct tests
on samples. The state food safety wing for now relies on a private Kolkata lab
which is accredited by National Accreditation Board for Testing and Calibration
Laboratories. Even after the State Food Safety Officer sent the seized
Maggi packets to the Food Analyst and they sent back reports, Section 46 (4) of
the Food Safety and Standards Act, 2006, allows the accused Company to appeal
against the report of the Food Analyst. Following the appeal, the sample was
then sent to the Central Government Laboratory, whose reports finally emerged
in 2015.
Current status of Maggi:
Food group Nestle has withdrawn Maggi instant noodles
from sale in India citing “an
environment of confusion for consumers,” after a food scare triggered
by a domestic regulator’s report that some packs of the popular snack contained
excess lead. Nestle reiterated the noodles were safe. But after coming under
fire in local media for doing too little, too late in response, the group said
early on Friday that it would recall the product regardless, weeks after food
inspectors first reported their findings. In India’s most significant packaged
foods scare for nearly a decade, at least six states have banned Maggi noodles
after tests revealed some packets contained excess amounts of lead and MonoSodium
Glutmate (MSG). MSG is an artificial salt to enhance certain food
tastes. On Thursday, Tamil Nadu became the first state to ban several brands of
instant noodles, including Nestle. Maggi has already also been banned from
consumption by Indian Army personnel, taken off all Big Bazaar stores and
banned in New Delhi for 15 days.
from sale in India citing “an
environment of confusion for consumers,” after a food scare triggered
by a domestic regulator’s report that some packs of the popular snack contained
excess lead. Nestle reiterated the noodles were safe. But after coming under
fire in local media for doing too little, too late in response, the group said
early on Friday that it would recall the product regardless, weeks after food
inspectors first reported their findings. In India’s most significant packaged
foods scare for nearly a decade, at least six states have banned Maggi noodles
after tests revealed some packets contained excess amounts of lead and MonoSodium
Glutmate (MSG). MSG is an artificial salt to enhance certain food
tastes. On Thursday, Tamil Nadu became the first state to ban several brands of
instant noodles, including Nestle. Maggi has already also been banned from
consumption by Indian Army personnel, taken off all Big Bazaar stores and
banned in New Delhi for 15 days.
Brand Ambassador Liability:
Recent
controversy over the excess lead content and presence of MonoSodium
Glutmate (MSG) and lead in Maggi has raised questions regarding the
possible accountability of celebrity brand ambassadors, who at times sell
defective products, while minting corers.
controversy over the excess lead content and presence of MonoSodium
Glutmate (MSG) and lead in Maggi has raised questions regarding the
possible accountability of celebrity brand ambassadors, who at times sell
defective products, while minting corers.
Following
the Uttar Pradesh Food and Drug Administration’s decision to recall packets of
Maggi Noodles for reportedly having monosodium glutamate and lead more than
permissible limits, Madhuri Dixit, who currently endorses Maggi’s brand of ‘nutritious’
oats noodles, is in trouble. The Haridwar FDA has issued her a notice seeking an explanation as to how the noodles are
nutritious, and what the basis is for making such a claim. If she fails to
respond within 15 days a case could be filed against her. Amitabh Bachhan and Preity Zinta, two previous ambassadors for
Maggi also face the risk of being dragged to Court.
the Uttar Pradesh Food and Drug Administration’s decision to recall packets of
Maggi Noodles for reportedly having monosodium glutamate and lead more than
permissible limits, Madhuri Dixit, who currently endorses Maggi’s brand of ‘nutritious’
oats noodles, is in trouble. The Haridwar FDA has issued her a notice seeking an explanation as to how the noodles are
nutritious, and what the basis is for making such a claim. If she fails to
respond within 15 days a case could be filed against her. Amitabh Bachhan and Preity Zinta, two previous ambassadors for
Maggi also face the risk of being dragged to Court.
Following
this development, the Confederation of All India Traders (CAIT) has asked all brand
ambassadors who endorse a product, and thus influence choice of customers and
promote sales, to be brought under the gambit of Consumer Protection Act. CAIT,
in a letter to Ram Vilas Paswan, Union Minister for consumer affairs, said that
there is a need to fix the liability of Brand Ambassadors for the claims made
by them in their endorsements for the product. Brand Ambassadors act as service
providers in entire sales mechanism and therefore they become subject to
Consumer Protection Act. In addition, the money taken as consideration by the
Brand Ambassadors is generally accounted in the cost of product. Therefore CAIT
approved of the notice issued to Madhuri Dixit by Food Department. The CAIT has
also demanded formulation of specific guidelines for endorsement of products
since such endorsements have direct impact on consumers. A lot of people may
contend that Mrs. Dixit is merely an actress. How is she supposed to know the
amount of MSG in Maggi.. Nor can it be logically presumed that she had any idea
about the lead content. To be fair, under current laws, as long as she can
prove that she had done ample due diligence, she shall be in the clear. While
it is true that even I don’t have any idea as to what MSG actually is, atleast
I am not claiming something is healthy infornt of millions without being sure of the same.
this development, the Confederation of All India Traders (CAIT) has asked all brand
ambassadors who endorse a product, and thus influence choice of customers and
promote sales, to be brought under the gambit of Consumer Protection Act. CAIT,
in a letter to Ram Vilas Paswan, Union Minister for consumer affairs, said that
there is a need to fix the liability of Brand Ambassadors for the claims made
by them in their endorsements for the product. Brand Ambassadors act as service
providers in entire sales mechanism and therefore they become subject to
Consumer Protection Act. In addition, the money taken as consideration by the
Brand Ambassadors is generally accounted in the cost of product. Therefore CAIT
approved of the notice issued to Madhuri Dixit by Food Department. The CAIT has
also demanded formulation of specific guidelines for endorsement of products
since such endorsements have direct impact on consumers. A lot of people may
contend that Mrs. Dixit is merely an actress. How is she supposed to know the
amount of MSG in Maggi.. Nor can it be logically presumed that she had any idea
about the lead content. To be fair, under current laws, as long as she can
prove that she had done ample due diligence, she shall be in the clear. While
it is true that even I don’t have any idea as to what MSG actually is, atleast
I am not claiming something is healthy infornt of millions without being sure of the same.
Is
funny as this may seen, this is not the first time brand ambassadors have been
pulled up for erroneous, misleading or outright false advertisements. An FIR
was filed against Genelia D’Souza for allegedly making false
promises through ads and brochures for a real estate company in 2012. The Home
Trade scam of 2002 had the celebrity endorsement of three big celebrities,
Sachin Tendulkar, Hrithik Roshan and Shah Rukh Khan. Having created not a
single product, the company made away with thousands of crore rupees of investor money, and celebrity-endorsed brand building was a crucial part of their
operation. Several insurance ads are alleged to have been making misleading claims in the past, and
several insurance brands have celebrities like Irrfan Khan and Amitabh Bachchan
endorse them. And it’s not just the world of high-flying celebrities endorsing
mega-brands. Activists have also been speaking out against ads for sauna-belts, medicines, Hanuman-chalisa yantra and
gem-stones on TV screens. In February last year, the Central Consumer
Protection Council, the under the leadership of former Union Food Minister KV
Thomas, decided unanimously to propose laws to hold celebrities
endorsing products also liable for misleading advertisements.
funny as this may seen, this is not the first time brand ambassadors have been
pulled up for erroneous, misleading or outright false advertisements. An FIR
was filed against Genelia D’Souza for allegedly making false
promises through ads and brochures for a real estate company in 2012. The Home
Trade scam of 2002 had the celebrity endorsement of three big celebrities,
Sachin Tendulkar, Hrithik Roshan and Shah Rukh Khan. Having created not a
single product, the company made away with thousands of crore rupees of investor money, and celebrity-endorsed brand building was a crucial part of their
operation. Several insurance ads are alleged to have been making misleading claims in the past, and
several insurance brands have celebrities like Irrfan Khan and Amitabh Bachchan
endorse them. And it’s not just the world of high-flying celebrities endorsing
mega-brands. Activists have also been speaking out against ads for sauna-belts, medicines, Hanuman-chalisa yantra and
gem-stones on TV screens. In February last year, the Central Consumer
Protection Council, the under the leadership of former Union Food Minister KV
Thomas, decided unanimously to propose laws to hold celebrities
endorsing products also liable for misleading advertisements.
The
rationale behind this decision of the CPCC was that celebrities had
considerable influence over consumer choice, and that there must me some form
of liability for the endorsements being made. For a country which reveres and
adores its film stars and popular personalities, celebrity endorsements could
entirely change the consumer’s likes and dislikes. As the Home Trade Scam case
showed us, celebrity endorsements could be of immense consequence in driving
choices being made by buyers. It should be noted that, in the Home Trade scam,
there was not a single product which was launched. And based on the ad
campaign, serious investors and even national banks were duped into investing
huge amounts of money. Hardened financial investors were fooled by ads
campaigns with pictures of celebrities.
rationale behind this decision of the CPCC was that celebrities had
considerable influence over consumer choice, and that there must me some form
of liability for the endorsements being made. For a country which reveres and
adores its film stars and popular personalities, celebrity endorsements could
entirely change the consumer’s likes and dislikes. As the Home Trade Scam case
showed us, celebrity endorsements could be of immense consequence in driving
choices being made by buyers. It should be noted that, in the Home Trade scam,
there was not a single product which was launched. And based on the ad
campaign, serious investors and even national banks were duped into investing
huge amounts of money. Hardened financial investors were fooled by ads
campaigns with pictures of celebrities.
The Current Law:
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. It is pertinent to note
that the lawmakers had considered that fact that there may be certain genuine
cases where the Brand Ambassadors may be completely in the dark. For that they
provided a list of defenses in the Act itself. 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.
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. It is pertinent to note
that the lawmakers had considered that fact that there may be certain genuine
cases where the Brand Ambassadors may be completely in the dark. For that they
provided a list of defenses in the Act itself. 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.
Section 80 discusses five kinds of defenses.
They are;
They are;
§ Defence relating to publication of
advertisement;
advertisement;
§ Defence of due diligence;
§ Defence of mistaken and reasonable
belief not available;
belief not available;
§ Defence in respect of handling food;
§ Defence of significance of the
nature, substance or quality of food;
nature, substance or quality of food;
Under the defense of due diligence, which is
provided under Section 80 B, it is provided that 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 defense. 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. 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 statutory approvals 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 misleading nature
of the product can hold them liable.
provided under Section 80 B, it is provided that 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 defense. 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. 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 statutory approvals 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 misleading nature
of the product can hold them 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 should be noted that the Celebrities can
claim the due diligence defense based on the fact that Food
Safety & Standards Authority of India (FSSAI), the apex regulatory body
which grants product approval for proprietary food items like MAGGI, had
granted it license. 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 license 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 give an
impression that the regulatory body must be undertaking routine inspection of
such manufacturing units. Despite all these powers, and the regulations and
rules regarding stop checks of manufacturing plants by FSSAI and state food
authorities, the manufacturing unit of Maggie still managed to come out with
products with high lead content and Monosodium Glutamate. According to the
FSSAI website, Bihar’s food safety wing has only 14 officers
to man its 38 districts. According to an official report for 2014-15, there are
at least 1.5 lakh food business operators in the state. But only 23,435 are
registered and 8,678 are licensed. This is in contravention of the FSSAI
guidelines according to which any food unit having an annual turnover of up to
Rs 12 lakh has to be registered. Those having a turnover of more than Rs 12
lakh have to be licensed. The mandate to register or license such units lies
with the Food Safety Officers. With the immense lack of manpower, it is safe to
assume that the
food safety authorities did not visit the manufacturing units of the Nestle
before granting manufacturing license to them and even if they did periodic
check were not undertaken by them. Celebrities act on the basis of information
supplied to them and script provided to them. At the very most they can be
expected to make certain that the product they are endorsing has all the
necessary statutory licenses. If the
regulatory body and the state food safety authorities themselves had been
lacking in their duty, it would be unfair to point fingers at the celebrity
brand ambassadors who may have relied on those licenses, at least in the
present case till all the facts are laid out in the open.
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 should be noted that the Celebrities can
claim the due diligence defense based on the fact that Food
Safety & Standards Authority of India (FSSAI), the apex regulatory body
which grants product approval for proprietary food items like MAGGI, had
granted it license. 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 license 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 give an
impression that the regulatory body must be undertaking routine inspection of
such manufacturing units. Despite all these powers, and the regulations and
rules regarding stop checks of manufacturing plants by FSSAI and state food
authorities, the manufacturing unit of Maggie still managed to come out with
products with high lead content and Monosodium Glutamate. According to the
FSSAI website, Bihar’s food safety wing has only 14 officers
to man its 38 districts. According to an official report for 2014-15, there are
at least 1.5 lakh food business operators in the state. But only 23,435 are
registered and 8,678 are licensed. This is in contravention of the FSSAI
guidelines according to which any food unit having an annual turnover of up to
Rs 12 lakh has to be registered. Those having a turnover of more than Rs 12
lakh have to be licensed. The mandate to register or license such units lies
with the Food Safety Officers. With the immense lack of manpower, it is safe to
assume that the
food safety authorities did not visit the manufacturing units of the Nestle
before granting manufacturing license to them and even if they did periodic
check were not undertaken by them. Celebrities act on the basis of information
supplied to them and script provided to them. At the very most they can be
expected to make certain that the product they are endorsing has all the
necessary statutory licenses. If the
regulatory body and the state food safety authorities themselves had been
lacking in their duty, it would be unfair to point fingers at the celebrity
brand ambassadors who may have relied on those licenses, at least in the
present case till all the facts are laid out in the open.
Reference:
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