‘Live insect’ in baby formula: Court drops case against Ex-Mead Johnson India MD

Holding that merely by virtue of designation, a person cannot be prosecuted, the Calcutta High Court has set aside criminal proceedings against the former managing director of Mead Johnson India in a case involving alleged ‘live insects’ and black mould found inside ‘baby formula’.

Ruling that the penal provisions applied in the matter were not legally sustainable, Justice Chaitali Chatterjee Das observed that the Food Safety and Standards (FSS) Act clearly gives overriding effect to its provisions over any other food law.

“In that case the matter pertains to Food Safety and Standard Act where in terms of Section 66, where a person in charge of an Establishment or unit nominated by the company as responsible for Food Safety shall be the person who will be liable for contraventions in respect of such Establishment, Branch or unit, only such Nominee and not the Directors shall be responsible for the contravention in respect of Establishment,” the July 8 order said.

The order added, “On careful perusal of the charge sheet, it transpires that till such time the food analysis public health laboratory, Department of Health, that the sample in Enfamil A+ Stage 3 bearing label mark ‘A’ does not conform to the standard of follow-up formulas as laid down in the regulation and the sample was sub-standard and unsafe. The baby food was seized during investigation and sent for such opinion and thereafter submitted the charge.”

Justice Chaitali Chatterjee Das was hearing a matter alleging unsafe baby food products on July 8.

‘Insect found inside baby formula’

Mead Johnson Group (MJN) has its presence in over 50 countries and has over 70 products focused on infant and child nutrition, with a global turnover of approximately USD 4 billion (Rupees 33.350 crore).

One of Mead Johnson’s products is ‘Enfamil A+ Stage 3 Follow-Up Formula’ for children, a supplement for infants (12 to 24 months) that was imported and distributed by Mead Johnson India.

On June 15, 2009, Sailesh Venkatesan, the petitioner, was appointed as the Managing Director of MJN India. A private complaint was filed by a woman alleging that she was feeding Enfamil A+ Stage 3 to her baby and black dust particles were found (mould).

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On November 8, 2015, she bought the formula and claimed that on opening the container, she found a live insect, and she apprehended that due to the inferior quality of the food her baby suffered earlier. Subsequently, a complaint was lodged on November 10, 2015 against the manufacturing company and Med Plus Shop.

Nearly four years after the FIR was registered in 2015, a notice was sent to MJN India and the Director of MJN India under the relevant legal provisions. On September 7, 2021, a chargesheet was filed against three persons, including the former MD.

The other accused were the distributor and the owner of the medicine shop. The trial court took cognisance of the chargesheet on October 7, 2021, issued summons following which the petitioner filed the present plea in the high court.

Baby food’s safety at stake: State

Senior Advocate Sudipta Sarkar, appearing for the petitioner, argued that the IPC provisions invoked in the charge sheet are not maintainable, as food quality and safety concerns are governed exclusively by the Food Safety and Standards (FSS) Act, and it overrides other laws in matters relating to food safety.

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It was submitted that the police lacked jurisdiction to register the FIR and investigate offences under the FSS Act, as only designated food safety authorities can enforce the Act. He contended that there were no specific allegations linking him to the alleged offence, and he was prosecuted based on his designation.

The public prosecutor Debasish Roy opposed the plea and argued that the petitioner’s name was added to the FIR after the investigation revealed sufficient evidence to establish his involvement. He contended that the case involves the safety of baby food products and should not be quashed on technical grounds.

Case set aside

The court held that there were no specific allegations against the petitioner, either in the FIR or during the investigation. It highlighted that the company itself was not made an accused and said that a director cannot be prosecuted merely because of his designation.

The court found the proceedings against the petitioner were not legally maintainable, as after the establishment of the FSS Act, food related matter comes under its ambit and that it holds power to override food-related laws. It observed that the case should have been made under the FSS Act and not IPC.

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It was further noted that there was an unexplained delay in the investigation, and the company was issued a notice nearly four years after the FIR, by which time the shelf life of the baby food had expired. Holding that continuation of the proceeding would be an abuse of power, the court set aside the case against the petitioner.