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.

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Food group Nestle has withdrawn Maggi instant noodles from sale in India citing "an environment of confusion for consumers," after a food scare triggered by a domestic regulator's report that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.

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.  

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.

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.

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.

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.

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.

Section 80 discusses five kinds of defenses. They are;

§  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;

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.

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.

Reference:

1)   Wall Street Journal India.

2)    IBNLive Online

3)   Food Safety & Standards Authority of India

4)    MAGGI controversy decoded: Liability of the Celebrity actors and directors: 1 Law Street

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Legally Joking: Interview with Rohan Mukherjee, Lawyer turned StandUp Comedian

                                    For the Sake of Argument, Founder Sourya, caught up with Rohan Mukherjee. 

Rohan, is a Lawyer turned StandUp Comedian. One of those rare breed, who despite being successful in law, threw cation to the wind and decided to follow his passion. Currently a Comedian/Writer at The Awkward Fruit Comedy Club in Mumbai, when not destroying peaceful surroundings with his jokes, Rohan can be found writing for his page @smallEpics. 

He talks about Law, Comedy and everything in between with his trademark wit and sarcasm.! 

Sourya (S): You had your own Legal Platform, Grayscale Legal, while still in Law School, had received an PPO and were a Kairos Fellow. Yet you threw it all away and chose to become a standup comedian! The obvious question first. When’s your next show?

Rohan (R): You make it sound like I had this entire kingdom laid down in front of me, and all I decided was to be a court jester! I’m moving to Mumbai soon, so after I pick out a nice spot on the pavement to spend my nights, I’ll get to know more.

But June 23^rd. I think. :P

(S): On a more serious note, what were your exact thoughts when you choose standup comedy as a career instead of law?

(R): First off, 5 years back when I decided to do nothing but law, so much so that I did not even fill out any forms for any other stream, anywhere – I was dead sure that this is what I wanted to do with my life. And had comedy not been a factor, I would have happily pursued a career in environmental law with zero regrets. But look, choosing between law and comedy to me was like choosing between beer and chocolate fudge ice cream. Law, like beer was an acquired taste – you grow to love it and it takes a few cringing gulps to go through that, and in no time a cold beer and a hot day go hand in hand. Comedy, on the other hand for me, is like chocolate fudge. No one really tells you to ‘like’ chocolate fudge. You don’t have your friends breathing down your neck to try that flavor. This is a flavor I love naturally. While beer, I had to teach myself to love.

(S): When did you realize your love for standup comedy?

(R): Face it, I’m funny. More often than not, I embarrass people around me with my off-color humor. Fortunately, Indian stand up scene started to boom very recently and I just happened to come across it. I was into stand up since school, and the reason I took up PDs or even thought about litigation stemmed from the rush I wanted from just standing in front of a bunch of people and being clever. My mental make-up used to be like, forget about Matter and Method, and focus on Manner. Obviously, didn’t work out that well. Thinking about it now, every Whip speech of mine used to be like a 7 minute set. Open with lame ice breaking comments, follow up rebuttals with weird analogies and close looking for, if not laughs, table bangs. So it was always there somehow, and this transition was very easy for me.

(S): In the current world where everyone’s running behind bigger paychecks, I am sure leaving your job to follow your passion wasn’t a very easy decision.  How did people around you react to this news?

(R): Actually it was, you know. Bigger paychecks are not a factor at all. Honest. If you’re good at anything, you’ll get paid well. Sure, will take some time – but it’s bound to happen. I’m not dismissing people who make a conscious decision to run after a profession purely because it pays well, everyone has their own reason. But perhaps the point I’m trying to get to is, if you see a kick-ass electrician, and a pathetic doctor – who do you think gets fresh work more often?

Anyway if I did take up law, I would without doubt be getting into litigation, so let’s not take the income angle at all. Just that, in litigation it would require me to work my ass off, day and night for at least 3-5 years before I could even dream of turning into a rainmaker. In comedy, I have to think of goofy shit. Laziness wins, no?

(S): How did your parents react when you first pitched this idea?

Rohan performing in Vizag

(R): It took a while for me to drop it on them. But I guess, career wise, they had learnt to leave that to me. My parents have always been very liberal about all this fortunately. It’s absolutely understandable that after having invested all this money into my legal education, they would have their little aspirations that involved me in a black robe, but I believe the attire just made me sweat profusely, metaphorically. I made my dad sit with me through George Carlin, Seinfeld and Louis CK specials, just to make him subtly understand that respectable grown men do this for a living as well. Manipulative bugger that I am.

(S): Are you completely leaving law or is there a possibility of ever coming back to it in the future?

(R): How can one ever leave law? In 5 years, you have been attuned to thinking in a particular way and using facts to back your arguments. I’ll be doing the same, hopefully. I mean it is unfair that the courts of law produce some of the best comedy material, but then what can one do!

But practicing as a lawyer after deciding to go into comedy? I hope not. That would be a very KRK move.

(S): Any words of advice for those directionless souls who may have taken up law only because they are scared of following their passion?

(R): I believe that as far as ‘serious professions’ go – law is an amazing one. How many professions allow you to actually change shit around you, make money, and make your opinion count in a dinner conversation? But if that doesn’t ignite that little fire in you, so to speak, do something else, man. Sure, going after your passion can be scary, but what’s even scarier is to live without even trying. Sounds fancy, but hey look, I spent 5 years in Cuttack. The nearest place with an inkling of a comedy scene was Kolkata, or Vishakapatnam. I have taken so many long train journeys, to even Delhi and Mumbai, just for those 3 minutes on stage at an open mic. You don’t get paid in open mics. It seems a little crazy right now, but hey, I wouldn’t have it any other way.

Read An Old Interview of Rohan, from before his standup days, while he was still in Law School HERE

For people looking for some legally sanitized comedy shows for their college fest, organization reunion etc, feel free to contact Rohan Mukherjee on Facebook or Twitter. 

You can also check out some of his work on YouTube HERE and HERE

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Armed Forces (Assam- Manipur) Special Powers Act: An Overview (Part I)

INTRODUCTION

        The Armed Forces (Special Powers) Act of 1958 (AFSPA) is one of the most draconian legislations that the Indian Parliament has passed. Under this Act, all security forces are given unrestricted and unaccounted power to carry out their operations, once an area is declared disturbed. Even a non-commissioned officer is granted the right to shoot to kill based on mere suspicion that it is necessary to do so in order to "maintain the public order".

The AFSPA gives the armed forces wide powers to shoot, arrest and search, all in the name of "aiding civil power." It was first applied to the North Eastern states of Assam and Manipur and was amended in 1972 to extend to the entire seven sister states[1] in the north- eastern region of India. The enforcement of the AFSPA has resulted in innumerable incidents of arbitrary detention, torture, rape, and looting by security personnel.[2]The Government of India gives justification for this Act that it will stop the seceding of North East states from the Indian Union.

 HISTORICAL BACKGROUND

Through the centuries, the Himalayan hills and valleys have bridged South, South East, and Central Asia. The great Hindu and Muslim empires that reigned over the Indian sub-continent never extended east of the Bhramaputrariver.India's British colonizers were the first to break this barrier. In the early 19th century, they moved in to check the Burmese expansion into today's Manipur and Assam. The British, with the help of the then Manipur King, Gambhir Singh, crushed the Burmese imperialist dream and the treaty of Yandabo was signed in 1828.[3] Under this treaty, Assam became a part of British India and the British continued to influence the political affairs of the region.

This undue interference eventually led to the bloody Anglo- Manipuri conflict of 1891.[4] The British reaffirmed their position but were cognizant of the ferocious spirit of independence of these people and did not administer directly but only through the King.

After the departure of the British, the Kingdom of Manipur was reconstituted as a constitutional monarchy on modern lines by passing the Manipur Constitution Act, 1947.[5]

Elections were held under the new constitution. A legislative assembly was formed. In 1949, Mr V P Menon, a senior representative of the Government of India, invited the King to a meeting on the pretext of discussing the deteriorating law and order situation in the state at Shillong.[6] Upon his arrival, the King was allegedly forced to sign under duress the merger agreement. The agreement was never ratified in the Manipur Legislative Assembly. Rather, the Assembly was dissolved and Manipur was kept under the charge of a Chief Commissioner. There were protests, but the carrot-and-stick policy[7] launched by the Indian Government successfully suppressed any opposition.

At the beginning of the century, the inhabitants of the Naga Hills, which extend across the Indo-Burmese border, came together under the single banner of Naga National Council (NNC)[8], aspiring for a common homeland and self-governance. As early as 1929, the NNC petitioned the Simon Commission, which was examining the feasibility of future of self-governance of India. The Naga leaders were adamantly against Indian rule over their people once the British pulled out of the region. Mahatma Gandhi publicly announced that the Nagas had every right to be independent. His assertion was based on his belief in non-violence, he did not believe in the use of force or an unwilling union.

Under the Hydari Agreement signed between NNC and British administration, Nagaland was granted protected status for ten years, after which the Nagas would decide whether they should stay in the Union or not.[9] However, shortly after the British withdrew, independent India proclaimed the Naga Territory as part and parcel of the new Republic.

The NNC proclaimed Nagaland's independence. In retaliation, Indian authorities arrested the Naga leaders. An armed struggle ensued and there were large casualties on either side. The Armed Forces Special Powers Act is the product of this tension. 

In 1975, some Naga leaders held talks with the Government of India which resulted in what is known as the Shillong Accord.[10] The Naga leaders who did not agree with the Shillong accord formed the National Socialist Council of Nagaland (NSCN) and continue to fight for what they call," Naga sovereignty".[11]

Much of this historical bloodshed could have been avoided if the new India had lived up to the democratic principles enshrined in its Constitution and respected the rights of the nationalities it had taken within its borders. But in the over-zealous efforts to integrate these people into the "national mainstream", based on the dominant Brahminical Aryan culture, much destruction has been done to the indigenous populations. 

On 22 May 1958, a mere 12 days after the Budget Session of Parliament was over, the Armed Forces (Assam-Manipur) Special Powers Ordinance was passed.[12] A bill was introduced in the Monsoon session of Parliament that year. Amongst those who cautioned against giving such blanket powers to the Army included the then Deputy Chairman of the RajyaSabha, (Upper House of the Indian Parliament), Mr P N Sapru.[13] In a brief discussion that lasted for three hours in the LokSabha and for four hours in the RajyaSabha, Parliament approved the Armed Forces (Assam- Manipur) Special Powers Act with retrospective from 22 May 1958.[14]

Read Part II HERE

About the Author:

Sanya Darakhshan Kishwar is a third year BSc.LLB. student from Central University of South Bihar, Gaya. She is currently interning at For the Sake of Argument.She is passionate about books and loves to read case laws in her free time.

---

[1]They are Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram and Nagaland, also known as the "seven sisters".

[2]Armed Forces Special Powers Act: A study in National Security tyranny, available at http://www.hrdc.net/sahrdc/resources/armed_forces.htm, last seen on 02/06/2015

[3]Treaty of Yandaboo, 24 February 1826,available at www.centralexcisehyderabad4.gov.in/documents/history/1826.PDF, last seen on 02/06/2015

[4]Supra 2

[5]Manipur Constitution Act, available at http://www.satp.org/satporgtp/countries/india/states/manipur/documents/actsandordinances/manipur_state_constitution_act_1947.htm, last seen on 02/06/2015

[6]Supra 2

[7]Ibid

[8]Naga National Council, available athttp://en.wikipedia.org/wiki/Naga_National_Council, last seen on 02/06/2015

[9]Supra 2

[10]Shillong Accord of 1975 , available at http://en.wikipedia.org/wiki/Shillong_Accord_of_1975, last seen on 02/06/2015

[11]Supra 2

[12]Armed Forces (Special Powers)Act,1958,available at http://en.wikipedia.org/wiki/Armed_Forces_%28Special_Powers%29_Act,_1958, last seen on 02/06/2015

[13]Supra 2

[14]Supra 2

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CALL FOR PAPERS THE LIBERTATEM MAGAZINE - ISSUE 6 [ISSN: 2395-4418]

THE LIBERTATEM MAGAZINE is delighted to announce a call for articles for its 6th Issue, which will focus on current legal issues and legal developments.

GUIDELINES

 Authors should not mention their name or any kind of identification mark in the manuscript. Any manuscript found to have any details of authors shall be rejected upfrontly.

 Article should not exceed 1200 words [should be strictly adhered to and shall be a ground from rejection upfrontly].

 All submissions have to be made in MS Word format with Font size 12 and 1.5 line space.

 No co-authorship is allowed.

 The piece should not be overly technical, but practical and engaging.

 Article should be specifically related to current legal issues and legal developments.

 Papers must be written solely by the candidate, in English, and may not have been submitted for publication elsewhere.

 All the claims of the authors, in the body of the manuscript, are expected to be backed by reasons along with proper citations [any uniform citation will do] and shall not be merely an assertion.

 Article should not be bifurcated by the headings, rather, flow of arguments should be maintained through the manuscript.

 Submission should also mandatorily include the author’s view, in the conclusion, taking into considerations the aspects/contentions discussed throughout the manuscript.

 Plagiarism is strictly prohibited and shall lead to immediate rejection.

PAPER SUBMISSION PROCEDURE

 The deadline for submissions is 11:59 PM Indian Standard Time on 25th of June, 2015.

 Authors should submit papers directly through the website under ‘Submission link’, where further details regarding the submission procedure is available.

 For any queries, contact query@thelawbrigade.com


THE REVIEW PROCESS & OTHER INFORMATION:-

 It is the author’s responsibility to ensure that all references and citations are correct, and the submissions do not contain any material that infringes copyright or is defamatory, obscene or otherwise unlawful or litigious.

 The copyright of the manuscript will vest with The Law Brigade Group. Due accreditation will be given to the authors.

 For the purpose of anonymity, the author/s shall not disclose their identities anywhere in the body of the manuscript.

 The submissions will undergo a double blind peer-review process.

 The Editorial Board reserves the right for modification of the manuscript to maintain the standard and quality of the submission. The board will notify its decision and other relevant information through email.

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