Nestle India, a well-known multinational, manufactures Maggi Noodles and Madhuri Dixit is the brand ambassador of this product. Recently, the Food Security and Drugs Authority (FSDA, UP) and Food and Drugs Authority (FDA, Bihar) alleged that samples of Maggi noodles contained monosodium glutamate (MSG) and lead beyond the permissible limits, a claim hotly denied by the company. Notices have been served under the Food Safety & Standards Act, 2006 (FSSA) not only on the company and its officials but on Madhuri Dixit as well.
The scene now shifts to Muzzafarpur, Bihar. A consumer claimed that he purchased Maggi from a shop at Lenin Chowk of Muzaffarpur on May 30 and that he became ill after eating it. He then filed a complaint against Nestle, the maker of the noodles and three famous film stars who were/are the products brand ambassadors – Amitabh Bacchan, Madhuri Dixit and Priety Zinta. Earlier, an advocate of Barabanki, Uttar Pradesh filed a complaint before the Chief Judicial Magistrate making these three film stars as co-accused along with Nestle and its officials.
The inclusion of these actors and actresses has naturally generated media frenzy. On a deeper level, however, it raises an important legal question: can a brand ambassador, who merely promotes the sale of a product, in the print or in electronic media, be criminally liable?
It appears that Sections 270, 273 and 276 read with Section 420 of the Indian Penal Code, 1860 (IPC) have been relied upon by the complainant in the Muzzafarpur case. Section 270 deals with prosecuting a person who malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread infection of any disease dangerous to life. Section 272 deals with adulterating any article or food or drink so as to make such article noxious, while Section 276 deals with punishing a person who knowingly sells, offers, or exposes for sale any drug or medical preparation and cheating is covered by the oft-quoted section 420. From a bare reading of these provisions, it would be clear that they have no bearing on the current controversy at hand.
Are brand ambassadors criminally liable?
Even if some samples of Maggi did indeed contain MSG and lead beyond the permissible limits, can brand ambassadors be criminally made liable under the Indian Penal Code (IPC) and/or the FFSSA?
Section 24 of the FSSA imposes restrictions on advertising and prohibits unfair trade practices. It requires that no advertisement related to food shall be made which is misleading or deceiving or contravenes the provisions of FSSA. Have any of the filmstars “made” the advertisement? Section 24 also prohibits undertaking of any ‘unfair trade practice’ for the purposes of promoting sale, supply, use and consumption of articles of food, or adoption of any unfair or deceptive practice to mislead the public regarding the standard, quality, quantity, usefulness or guarantee of efficacy which is not based on a scientific justification thereof. Again, the question is whether the said film stars have indulged in unfair trade practices? The expression ‘unfair trade practice’ is not defined under FSSA, but has been defined under the Consumer Protection Act, 1996. It can hardly be alleged that a model, even if he/she is a filmstar, either makes the advertisement or indulges in any unfair trade practice.
The Supreme Court in the matter of Lakhanpal National Ltd. v. M.R.T.P. Commission held that when a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution would be to examine whether it contains a “false statement and is misleading” and further what is the effect of such a representation made “by the manufacturer” on the common man? (sic)
Thereafter, in Coca-Cola India Limited v. Dr Amarjit Singh, the question arose for consideration as to which entity could commit an unfair trade practice. The National Consumer Redressal Board, in 2010, noted that such an entity could either be a trader, manufacturer, or a service provider. Thus, to include models/brand ambassadors in the definition of “unfair trade practice” would be expanding its meaning beyond permissible limits.
Section 53 of the FSSA prescribes the penalty for a misleading advertisement, which can extend to Rs. 10 lakhs, but, such penalty can only be imposed on a “person who publishes” or “is a party to a publication of an advertisement”.
The person endorsing the product is neither a publisher nor a party to the publication of the advertisement. He/she is merely a model in the commercial. Indeed, if the model is liable, then the director, cameraman and script-writer should be equally liable. (In fact, it is reported that the FSDA has taken the stand that everybody connected with the advertisement will be liable.)
Apart from the penalty for misleading advertisements, there are separate penalties prescribed for food not of the nature or substance or quality demanded (section 50), sub-standard food (section 51), misbranded food (section 52), food containing extraneous matter (section 54).
Penalties under these sections are imposed only on the manufacturer/seller/distributor. The person concerned with the production of an advertising film or the models are not liable to be penalized for defective products.
Section 66 of the FSSA prescribes the persons who may be prosecuted if offences are committed by companies. Even with regard to employees of such company, it can only be such persons who, at the time of the offence, were in charge of, and were responsible to, the company for the conduct for the business of the Company. Brand ambassadors are not employees and cannot be included as “accused” even if criminal law is stretched to its elastic limits.
The Supreme Court has repeatedly held “that penalty will ordinarily be imposed in cases where the party acts deliberately in defiance of law or is guilty of contumacious or dishonest conduct, or acts in conscious disregard of its obligation; but not in cases where there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the Statute”. (Hindustan Steel Ltd. v. State of Orissa).
It is the manufacturers’ responsibility to ensure that products are made to conform to the prescribed limits. But, it is impossible for a brand ambassador or even the director of the commercial to examine whether the product meets all regulatory requirements. This would be placing an almost impossible burden on not only models, but even the advertising agency. If indeed Maggi noodles or any other product is a health hazard, a prosecution against the company and its officials must follow. But, there is absolutely no justification, in law, in making film stars as co-accused.
Arvind Datar and Payal Chawla are practicing advocates.