FSS Act- Imported products Labeling defects -Kerala HC – M/s Kilban Foods (India) Pvt.Ltd vs FSSAI …on 20 January, 2014

  
                     
 
 
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT:

                THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                WEDNESDAY, THE 28TH DAY OF MAY 2014/7TH JYAISHTA, 1936

                           WP(C).No. 8306 of 2014 (K)
                          ---------------------------

PETITIONER:
----------

            M/S. KILBAN FOODS (INDIA) PVT.LTD.,
            7/498, M.A. ROAD, CALICUT - 673 001, KERALA,
           REPRESENTED BY ITS MANAGER MR. E.K. SUNDAR RAJ.

            BY ADVS.SRI.JOY THATTIL ITTOOP
                          SRI.A.G.ADITYA SHENOY
                          SRI.K.M.BIJU
                          SRI.JACOB TOMLIN VARGHESE

RESPONDENTS:
-----------

          1. FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA,
             FDA BHAWAN NEAR BAL BHAVAN, KOTLA ROAD,
             NEW DELHI - 110 002, INDIA, REPRESENTED BY
             ITS AUTHORIZED OFFICER.

          2. FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA,
             1ST FLOOR, MARINE BUILDING, NORTH END,
             PO WILLINGDON ISLAND, COCHIN - 682 003 KERALA,
             REPRESENTED BY ITS AUTHORIZED OFFICER.

          3. THE COMMISSIONER OF CUSTOMS,
             OFFICE OF THE COMMISSIONER OF CUSTOMS,
             CUSTOM HOUSE, KOCHI.

            R1 & R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
            R1 & R2 BY ADVS. SRI.MEHMOOD PRACHA
                                  SRI.PAUL JACOB
                                  SRI.I.K.RAJU
                                  SRI.SUMIT BABBAR
                                  SRI. DEEPAK AGARWAL
                                  SRI. AJAY KALRA
            R3 BY SRI.THOMAS MATHEW NELLIMOOTTIL, S.C

            THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
            ON 28-05-2014, THE COURT ON THE SAME DAY DELIVERED
            THE FOLLOWING:

WP(C).No. 8306 of 2014 (K)
----------------------------

                                            APPENDIX
                                            --------

PETITIONER(S)' EXHIBITS
-----------------------

EXHIBIT P1 : TRUE COPY OF THE BILL OF ENTRY BEARING
                     NO. BE NO./DT/CC/TYPE 4393021/20/01/2014/N/H.

EXHIBIT P2 : TRUE COPY OF THE E-RECEIPT WITH DOC NO. 4393021.

EXHIBIT P3 : TRUE COPY OF THE EXAMINATION ORDER ISSUED BY THE
                     3RD RESPONDENT DIRECTING THE 2ND RESPONDENT
                     DATED 20-01-2014.

EXHIBIT P4 : TRUE COPY OF THE REJECTION REPORT OF FOOD IMPORT.

EXHIBIT P5 : TRUE COPY OF THE LETTER FROM THE EXPORTER TO THE
                     1ST RESPONDENT DATED 27-01-2014.

RESPONDENT(S)' EXHIBITS: NIL

                                                                                       
                      A.M.SHAFFIQUE, J
                     * * * * * * * * * 
                    W.P.C.No.8306 of 2014
                 -------------------------
              Dated this the 28th day of May 2014

                      J U D G M E N T

Petitioner has approached this Court seeking the following reliefs:

“i) To issue a Writ of Certiorari or other writ, direction or order calling for the records leading to Exhibit P3 and P4 and quash the same.

ii) To issue a Writ of Mandamus or other appropriate writ, direction or order directing the 2nd respondent to take samples and conduct tests on the same, in accordance with the FSS (Packaging and Labeling) Regulations, 2011 and to forward the report to the 3rd respondent forthwith.

Iii) To issue a Writ of Mandamus or other appropriate writ, direction or order directing the 3rd respondent to release the consignment covered under Bill of Entry bearing No.BE No./Dt./cc/TYPE:4393021/20/01/2014/N/H to the Petitioner forthwith.”

2. The facts involved in the writ petition would disclose that when the petitioner imported flavouring substance namely Leachy flavouring as well as strawberry flavouring, on examination of the materials by the Food Safety and Standards Department, it was noticed that the product does not have the list of ingredients mentioned on the label as required under Regulation 2.2.2.2 of the Food Safety and Standards (Packaging and Labelling) Regulations 2011. Further, the same came to be rejected. Therefore, the petitioner challenges Exts.P3 and P4 by which they were not permitted to import the material.

3. Counter affidavit is filed by respondents 1 and 2 inter alia stating that as per Regulation 2.2.2.2(f) of the Regulations, every package of food sold as a mixture of combination shall disclose the percentage of the ingredient used at the time of manufacture of goods (including compound ingredients or categories of ingredients) etc. and necessary label has to be shown. However, such provision further indicates that if the ingredient has been used as flavouring agent, the disclosure of such ingredient is not required. The respondent would however submit that as per the documents of import which contain the analysis report of the product sent by the exporter from United Kingdom, it is indicated that anti caking agent – Silicon Dioxide (E551) is 5%. They refer to Regulation 3.1.10(3) with reference to flavouring agents and related substances and it is indicated that use of anti caking agents in flavours: Synthetic Amorphous Silicon Dioxide may be used in powder flavouring substances to a maximum level of 2%. On this basis, it is contended that since admittedly the percentage of Silicon dioxide is 5%, it has exceeded the maximum level and therefore, the petitioner is not entitled to import the said material.

4. Heard learned counsel for the petitioner, learned counsel appearing for respondents 1 and 2 and the learned Standing Counsel appearing for the 3rd respondent.

5. Having gone through the averments made in the writ petition as well as in the counter affidavit, though it is stated in Exts.P3 and P4 that the product does not have the list of ingredients mentioned on the label as required, materials produced further indicate that the product is having anti caking agent which is more than the permissible level of 2%. In so far as the exporter had clearly indicated at pages 4 and 5 of Ext.P5 that both the flavouring substances contain 5% Silicon dioxide, it is apparently contrary to the standards prescribed under the Regulations.

Under these circumstances, I am of the view that it will not be possible for this Court to issue the directions, as sought for and accordingly this writ petition is dismissed. Needless to state that if the petitioner requires to approach the competent authority for export of the consignment and seeks necessary permission for the same, it shall be considered in accordance with the procedure prescribed.

(sd/-) (A.M.SHAFFIQUE, JUDGE)

Largest fine levied in Food Safety cases

Picture: THINKSTOCK

 

 

 

 

 

 

 

A CONAGRA Foods unit agreed to pay a record fine and plead guilty to a federal misdemeanour charge stemming from a 2006-07 salmonella outbreak. The rare criminal case spotlights how stepped-up enforcement of food-safety laws is shaking up the industry.

ConAgra Grocery Products LLC will pay $11.2m to resolve allegations that the company shipped contaminated peanut butter under its Peter Pan brand and Wal-Mart Stores’ Great Value label. The salmonella contamination sickened more than 700 people.

The fine — the largest ever levied in a food-safety case — marks the latest in a string of successful efforts by the Justice Department to hold food companies or their executives accountable for outbreaks of food-borne illnesses that, added together, have sickened thousands.

Since 2013, the Justice Department has won convictions or guilty pleas in four criminal cases against food companies or the executives that ran them. All of the cases fell under the 1938 Federal Food, Drug and Cosmetic Act. By contrast, that is roughly the same number of convictions or guilty pleas as the agency landed under the same act in the 24-year-period from 1988 through 2012.

In most of the recent cases, the Justice Department has successfully prosecuted defendants for introducing contaminated food into the market even without proof that officials acted with criminal intent — a nuance that has jolted the food industry, given its broad implications.

The agency’s actions have sparked greater awareness in corporate boardrooms and many companies have stepped up efforts to bolster food safety, according to industry executives and lawyers. Some companies have invested in new technologies to prevent the build-up of bacteria in plants and to enhance and speed up data collection and analysis.

“It’s a sea change,” said James Neale, a Virginia attorney who represents food manufacturers and retailers in foodborne-illness cases, but wasn’t directly involved in the recent federal criminal cases. “Everyone is paying closer attention to food safety.”

It is widely agreed that tougher enforcement is one of several factors increasing food makers’ vigilance. New safety rules from the Food and Drug Administration are also contributing.

Among the Justice Department’s other recent prosecutorial successes in food safety: last year, a federal jury convicted the former owner of a Georgia peanut-processing company, Peanut Corp of America, and three former employees of felony conspiracy and other charges following a 2008-09 salmonella outbreak tied to nine deaths and more than 700 illnesses. Last month, two executives at a large egg producer were sentenced to prison for their roles in a 2010 salmonella outbreak. In 2014, two Colorado brothers were sentenced to five years’ probation after pleading guilty to misdemeanour charges following a 2011 listeria outbreak that resulted in 33 deaths linked to their farm’s cantaloupes.

Stuart Delery, acting associate US attorney-general, said the gravity of recent outbreaks of food-borne illnesses focused his attention on addressing threats to food safety soon after his arrival at the Justice Department’s civil division in 2012.

American families “are relying on us and on food companies to make sure their products are safe to eat,” he said in an interview.

“The (current) state of affairs is unacceptable.”

The enforcement efforts come amid several recent voluntary recalls, including by Blue Bell Creameries LP, which last month pulled all its ice-cream products from grocery store shelves because of a listeria outbreak. And in April, Jeni’s Splendid Ice Creams recalled all of its products after listeria was discovered in one of its desserts — an action that some food-industry consultants point to as a sign food companies now are taking more precautions. The company has since resumed making ice cream.

ConAgra in 2007 pulled its peanut butter from store shelves after the salmonella outbreak — which sickened people in 47 states — was traced to the company’s Sylvester, Georgia, plant.

But ConAgra admitted as part of Wednesday’s plea agreement that it had been aware of some risk of contamination prior to the recall. The government alleged that ConAgra had earlier shipped from Georgia to Texas peanut butter produced under conditions in which it may have become contaminated with salmonella.

Routine product testing on two occasions in 2004 had revealed what later was confirmed to be salmonella in samples of finished peanut butter, according to the government. After the outbreak, the government said ConAgra made significant upgrades to its plant, and instituted enhanced safety protocols for manufacturing, testing and sanitation.

“We did not, and never will, knowingly ship a product that is not safe for consumers,” said Dr Al Bolles, chief technical and operations officer for ConAgra Foods, in a news release on Wednesday.

Last year, an internal e-mail trail helped government attorneys convince a jury that Stewart Parnell, the former owner of Peanut Corp of America, had presided over a multiyear scheme to conceal that many of the firm’s products were contaminated with salmonella. The government said Peanut Corp for years failed to notify customers when laboratory tests revealed traces of salmonella in its products. In some cases, company officials fabricated lab results, stating peanut products were safe for consumption when tests showed otherwise, or when products had never been tested at all, according to court papers. One internal e-mail suggested Mr Parnell’s desperation after learning that shipment of an order would be delayed because test results weren’t yet available for a batch of peanut products.

“Just ship it”, he wrote, according to court papers. “I cannot afford to loose (sic) another customer.”

The verdict in the Peanut Corp case could result in a lengthy prison sentence and fines. Mr Parnell’s lawyer has filed a motion for a new trial. Tom Bondurant, Mr Parnell’s lead attorney, declined to comment on Wednesday.

Participants in the case are under a gag order imposed by a federal judge. Government attorneys levied felony charges — a rare move in food-safety cases — against Mr Parnell because they felt they could prove criminal intent, according to food-safety lawyers.

Other cases may represent a more significant development for food companies, the lawyers said, with two pairs of executives recently convicted of misdemeanour crimes even without proof of intent.

In April, a federal judge sentenced a former Iowa egg magnate and his son to three months in prison and payment of $100,000 in fines for misdemeanour violations linked to a 2010 salmonella outbreak that sickened thousands of people and prompted the recall of a half-billion shell eggs.

Austin “Jack” DeCoster and his son Peter DeCoster each pleaded guilty to one count of selling contaminated food across state lines. The DeCosters ran Quality Egg LLC.

Lawyers say the prison terms for the DeCosters reflect the resurrection by prosecutors of a little-used legal doctrine to impose “strict liability”— through which guilt can be ascribed regardless of whether there was intent to violate the law — against an individual rather than a corporate entity. Attorneys for the DeCosters have appealed the sentences.

“Where there was no criminal intent, does the penalty fit the crime?” said Stuart Dornan, the younger Decoster’s attorney.

“While Peter has great concern and sympathy for the victims, he didn’t know his eggs had any salmonella in them.”

EIN-Newsdesk

From pesticides to antibiotics: Brands and the stuff in their products

McDonald’s Corp’s US restaurants will gradually stop buying chicken raised with antibiotics vital to fighting human infections

The jury is still out there, but this is a soup no one wants to have. On Wednesday, inspectors from Lucknow’s Food Safety and Drug Administration reportedly concluded that India’s favourite go-to snack, Maggi, contained lead and the taste enhancer, monosodium glutamate (MSG) beyond permissible limits.
 
Maggi’s manufacturer, Nestle, refuted the charges and claimed MSG in Maggi is within permissible limits. To be fair to them, lead might not have been an intended ingredient, but one that probably came about during the cause of manufacturing its noodles.

Accusing brands of lowering their standards is not new. Many such accusations have proven to be false and at times, the brands have themselves withdrawn the product from the market.

Here is a look at some of the popular brands and their run-ins with controversies.

1.     KFC

Just last year, the Food Safety and Standards Authority of India (FSSAI) found samples of KFC’s ‘Rizo Rice’ unsafe. The reason — use of artificial colouring. The fast food chain denied the charges  and soon after, the Central Food Technology Research Institute (CFTRI), Mysore, cleared the product.

2.     Coca Cola and Pepsi

In 2004, the BBC reported that farmers in Chhattisgarh used the famous cola brands as pesticides for their crops: By mixing it with water. A farmer even told the Guardian that pests in his farm died after the cocktail was sprayed on them.

Several scientists have, however, refuted the theory that the cola drinks had actual pesticide in them. Instead they say that the sugar in the drinks could be the reason. Ants would be attracted to the sugar and thereafter attack the pests. The companies on its part have refuted all allegations.

But a Centre for Science and Environment (CSE) study in 2003 found high levels of toxic pesticides and insecticides in soft drinks including Coca Cola and Pepsi. The centre further found that batches of soft drinks sold in US did not have any pesticide in them showing dual standards followed by the companies. Despite a joint parliamentary committee vindicating the study’s findings, both companies denied all allegations.

3.     McDonald’s

The company recently undertook a step towards phasing out the use of meat injected with antibiotics.

Although laudable, this isn’t the first time that the company had made the pledge – it had done so in 2003 too.

Meat injected with antibiotic meat is dangerous. A study, published in the New England Journal of Medicine in 2002, found that humans acquired Cipro-resistant bacteria from eating pork that were treated with a drug called fluoroquinolone. Cipro is a drug used to treat bacterial infections. You can guess what will happen if bacterial infections suddenly become immune to its cure.

4.     Subway

In 2014, a blogger pointed out that Subway sandwiches contained what’s called the “yoga mat chemical”.

The ingredient referred to here is azodicarbonamide (ADA). It is said to be used in blowing plastic and making yoga mats. The World Health Organization states that the chemical is harmful when inhaled. But it is a regular ingredient in bread making and is approved by the FDA.

The multinational food chain has since committed to phasing out ADA from its sandwiches and according to the company’s public relations firm, have already removed the said ingredient from its products.

5.     Cadbury

This time it is no chemical but a worm.

In 2006, the company was forced to award Rs 15,000 in compensation to a man who found worms and fungi in his bar of chocolate. The company was just recovering from the shock to its reputation just three years earlier when worms were found in many of its chocolate bars.

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