In many respects, the Nestle-FSSAI tussle is a test case for regulator-company relations in India. Maggi ban and the ensuing courtroom drama is a study in itself. When pronouncing the verdict on Thursday, judge V M Kanade of the high court in Mumbai raised 12 questions, the points of contention in the dispute pertaining to the recall and ban of Maggi.
Question 1: Whether the writ petition filed by the petitioner (Nestle India) under Article 226 of the Constitution of India is maintainable?
Question 2: Whether there was suppression of fact on the part of the petitioner and whether it had made an attempt to destroy evidence disentitling it from claiming any relief from this court?
Question 3: Whether respondent No. 2 (chief executive of FSSAI) could impose a ban on the grounds that the lead found in the product of the petitioner was beyond what the latter had represented in its application for product approval, though it was below the permissible limit laid down under the regulations?
Question 4: Whether the food authority (FSSAI) had unfettered discretion to decide what are the standards which have to be maintained by manufacturers of proprietary foods and whether in respect of the proprietary food, the food authority was not bound by the permissible limits of additives and contaminants mentioned in the regulations and the schedules appended thereto?
Question 5: Whether in view of the provisions of Section 22 of the Food Safety and Standards Act, 2006, there was a complete ban on the manufacture of sale and products mentioned in the said section?
Question 6: Whether there was violation of the principles of natural justice on the part of the respondents (CEO of FSSAI, state food commissioner of Maharashtra and the state)
Question 7: What was the source of power under the which the ban and recall of Maggi was passed?
Question 8: Whether the analysis of the product manufactured by the petitioner could have been made in the laboratories in which the said product was tested by the FSSAI and whether these labs are accredited by NABL and whether the reports submitted by these laboratories can be relied upon?
Question 9: Whether reliance can be placed on the reports obtained by the petitioner from its laboratory and other accredited laboratories?
Question 10: Whether the food analyst was entitled to test the samples in any laboratory, even if it was not accredited and recognised by the food authority?
Question 11: Whether it was established by the FSSAI that the lead beyond permissible levels was found in the product of the petitioner and the product of the petitioner was misbranded on account of the declaration made by the petitioner that the product contained "No added MSG"?
Question 12: Whether the respondents were justified in imposing a ban on all the nine variants of the petitioner though tests were conducted only in respect of three variants and whether such ban orders are arbitrary, unreasonable and violative of Article 14 and 19?
