Would "multinational giant" Pepsico apply the same yardstick in the United States when it comes to complying with legal norms for using ingredients in its food products, the Bombay High Court today asked the company.
The division bench of Chief Justice Mohit Shah and Justice Dhananjay Chandrachud is hearing a petition filed by Pepsico India against the temporary suspension of its manufacturing license last year.
Food and Drugs Administration, Pune, had suspended license for the company's plants at Ranjangaon and Taregaon, after an inspection in May 2009 found that it was using some ingredients which were past their "best before" date.
Pepsico makes potato chips and some other packaged foods at these plants.
The company challenged the action before the High Court, after appellate officer at FDA rejected its appeal.
Pepsico lawyer, senior counsel Janak Dwarkadas, argued that even under the Prevention of Food Adulteration Act, a food item does not become 'adulterated' merely because it is past 'best before' date.
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"Ours is a giant multinational, it is not some fly-by-night operator," he pleaded.
To this, the division bench asked: "Would you do this in United States?"
It added, "This (using stale ingredients) was a risk not worth taking."
Earlier, Dwarkadas argued that there was difference between selling a finished food product that was past its 'best before' date, and using a raw material which was past its 'best before' date.
Further, the Act too says that a food item or an ingredient which is past 'best before' date "may not be unfit for human consumption", he said.
FDA could have had the samples of ingredients examined in laboratory and found out if they were indeed unfit for use in production, the Pepsico lawyer argued.
However, the High Court said that it would not like to "apply the standards of criminal trial" in this case, to give the company the benefit of strict interpretation of law.
The court pointed out that when the company used old ingredients to make the final products (chips, etc) which themselves had an expiry date, "you were extending the (expiry) period".
When advocate Dwarkadas asked if that meant company was giving a "false warranty" to its consumers, the judges said it was so.
The government lawyer argued that the inspection of factory premises in 2009 followed some complaints that there were larvae in some of the products.
The hearing would continue tomorrow.