I

TABLE OF CONTENTS

TEAM CODE: 190

3rd NLUO-PHFI PUBLIC HEALTH LAW

NATIONAL MOOT COURT COMPETITION

Before

THE HON’BLE SUPREME C OURT OF EITINIA

IN THE MATTERS OF:

FSSAE, FRL, Consumers (Petitioners)

versus

Apoxia Enterprises Limited (Respondent)

~MEMORIAL ON BEHALF OF PETITIONER ~

3RD NLUO-PHFI MOOT COURT COMPETITION, 2023 ~MEMORIAL for PETITIONERS~

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TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF CONTENTS..................................................................................................... II

INDEX OF AUTHORITIES .............................................................................................. IV

STATEMENT OF JURISDICTION .................................................................................. VI

STATEMENT OF FACTS ................................................................................................ VII

ISSUES RAISED ............................................................................................................... IX

SUMMARY OF ARGUMENTS ........................................................................................... X

A. APOXIA IS BOUND TO DISCLOSE THE TRADE SECRETS AND CONSTITUENT

INGREDIENTS OF WAHGI ............................................................................................... X

B. FSSAE IS CORRECT IN BANNING THE SALE OF WAHGI .................................. X

C. APOXIA IS LIABLE TO PAY COMPENSATION ...................................................... X

ARGUMENTS ADVANCED ............................................................................................... 1

I. APOXIA IS BOUND TO DISCLOSE THE TRADE SECRETS AND CONSTITUENT

INGREDIENTS OF WAHGI ............................................................................................... 1
A. That Right to know what you are consuming through the labelling requirements
mandates Apoxia to reveal all the ingredients. ............................................................... 1
B. That Section 18 of Food Safety and Standards Act, 2006, empowers FSSAE to
mandate Apoxia to reveal all its ingredients ................................................................... 2
C. That fulfilment of FSSAE’s advisory duty to the Central and State government under
Section 16, mandates Apoxia to reveal all its ingredients ............................................... 4

II. FSSAI IS CORRECT IN BANNING THE SALE OF WAHGI ................................... 5

A. That the Commissioner has the power to Ban and did not have guilty mind since risky
conditions existed .......................................................................................................... 5
B. That there is no violation of Principle of Natural Justice ........................................ 6
C. That the ban is in consonance with Article 21, 39 and 47 of the Constitution ......... 8
D. That there is Judicial Overreach of Power ............................................................ 11

III. APOXIA IS LIABLE TO PAY COMPENSATION ................................................ 11

A. That it is the responsibility of the product manufacturer to pay compensation for any
harm caused ................................................................................................................ 11

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B. That Apoxia has committed Negligence ............................................................... 13

PRAYER............................................................................................................................. IX

3RD NLUO-PHFI MOOT COURT COMPETITION, 2023 ~MEMORIAL for PETITIONERS~

 IV
INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

Cases
Akshay N. Patel v. RBI, (2022) 3 SCC 694. ........................................................................ 10
Andhra Pradesh Grain and Seed Merchants Association v. Union of India, AIR 1971 SC 2346.
................................................................................................................................. 6, 9, 10
B.P. Sharma v Union of India, AIR 2003 SC 3863. ............................................................. 10
Centre for Public Interest Litigation v. Union of India, (2013) 16 SCC 27 ............................. 9
Commr. (Food Safety) v. Sugandhi Snuff King (P) Ltd., 2023 SCC OnLine Del 200 ............ 6
Consumer Unity & Trust Society v. Chairman & Managing Director, Bank of Baroda ........ 12
Dhariwal Industries Ltd. and Anr. v. State of Maharashtra, 2012 SCC OnLine Bom 1370.3, 5,
7, 8
Jacob Puliyel v. Union of India, 2021 SCC OnLine SC 3255............................................... 11
Janta Lal v. H.S. Chowdhary, AIR 1993 SC 892. .................................................................. 5
Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company Limited & Ors,
W.P.Nos. 22234 of 2016 ................................................................................................. 12
Lakshmanasami Gounder v. C.I.T., Selvamani, (1992) 1 SCC 9 ............................................ 8
Mohd. Hanif Qureshi v State of Bihar, AIR 1958 SC 731. ................................................... 10
Municipal Corporation of the City of Ahmedabad v. Jan Mohammed, (1986) 3 SCC 20. .... 10
Nestle India Ltd. v. Food Safety & Standards Authority, 2015 SCC OnLine Bom 4713.3, 5, 6,
7, 8
Omkar Agency v. The Food Safety and Standards Authority of India, 2016 SCC OnLine Pat
9231 .................................................................................................................................. 8
Ram Gaua Raksha Dal v. Union of India, W.P.(C) 12055/2021. ............................................ 1
Reliance Retail Ltd. v. Shailendrakumar Narsinhbhai Solanki, MANU/SK/0100/2023 ........ 12
Sugandhi Snuff King Pvt. Ltd. and Ors. vs. Commissioner (Food Safety) Government of NCT
of Delhi, 2022 SCC OnLine Del 3149. .......................................................................... 3, 9
Swamy Achyutanand Tirth & others vs. Union of India, (2016) 9 SCC 699........................... 3
The Association of the Traders v. Union of India, 2015 SCC OnLine Bom 4811. ..... 2, 4, 7, 10
The Oriental Insurance Co. Ltd. v. Jigar Hasmukh Soni, MANU/SK/0099/2023 ................. 13
Vital Nutraceuticals Private Limited v. Union of India, 2014 SCC OnLine Bom 195 ........ 7, 9

Statutes

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INDEX OF AUTHORITIES

Consumers Protection Act, 2019. ........................................................................................ 12

Food Safety and Standards Act 2006. ........................................................... 2, 4, 5, 6, 7, 9, 13
Govt. of India, Ministry of Health & Family Welfare, F. No. 1-
94/FSSAI/SP(Labelling)/2014(Pt-2), (November 17, 2020). .............................................. 1
Govt. of India, Ministry of Health & Family Welfare, F. No. 2-15015/30/2010, (August 1,
2011). ................................................................................................................................ 1
INDIA CONST. art. 19. ...................................................................................................... 10
INDIA CONST. art. 21. ........................................................................................................ 9
INDIA CONST. art. 32 ....................................................................................................... VI
INDIA CONST. art. 39. ........................................................................................................ 9
INDIA CONST. art. 47. ........................................................................................................ 9
United Nations (General Assembly). (1966). International Covenant on Economic, Social, and
Cultural Rights. Treaty Series, 999, 171 .......................................................................... 10

Foreign Cases
Bawa Paulins (P) Ltd. v. UPS Freight Services (India) (P) Ltd., 2022 SCC OnLine SC 1551.
........................................................................................................................................ 13
Donoghue v. Stevenson, [1932] A.C. 562 (H.L.). ................................................................ 14

Journals and Articles

S. L. Rao. (2001). Rise and Fall of Fast Moving Consumer Goods: A Marketing Story.
Economic and Political Weekly, 36(46/47), 4375–4379................................................... 14
What Does Advertising Do for the Consumer? (1973), Journal of Advertising, 2(2), 22–27 13

Moot Proposition
Moot Proposition, ¶ 3. ......................................................................................................... 13
Moot Proposition, ¶ 6. ......................................................................................................... 13
Moot Proposition, ¶ 8. ................................................................................................ 8, 12, 13
Moot Proposition, ¶6. ............................................................................................................ 6

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STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble Supreme Court of Etinia under Article 32 of the
Constitution1 of Etinia

32. Remedies for enforcement of rights conferred by this Part:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

1
INDIA CONST. art. 32

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STATEMENT OF FACTS

STATEMENT OF FACTS

-BACKGROUND-
“Union of Etinia” (Etinia) is a fast-developing country in South-East Asia, with a growing
population as well. The demographic of the country's majority comprises a young population,
with a significant population below 15 (fifteen) years of age. Etinia has made several reforms
to adopt a more liberal governance and has disbanded the red-tape bureaucracy for the
pursuance of the same. Since then, the country has seen great economic growth. This growth
of the country has come at the expense of growing unemployment and food insecurity. The
country, however, is progressing well, with the aid of Fast-Moving Consumer Goods
(“FMCG”), that has evolved into a sector and addresses the problem of widespread
malnourishment through simple food.

-STATISTICS-
The country of Etinia is home to a population that is majorly below the age of 50 (fifty) years.
Apoxia Enterprises Limited (“Apoxia”) manufactures instant ramen noodles under the brand
name of „Wahgi‟, introduced in the markets of Etinia in the year 2002. By 2023, Wahgi has
taken over 40% of the market consuming FMCG consumers. Rip-offs of Wahgi started seeping
into numbers in the year 2012 and has managed to capture as much as 20% of the FMCG
consumers.

-LEGAL FRAMEWORK-
Etinia has an extensive network of food regulation laws. The Government has made several
regulations with reference to Labelling, Packaging. Distribution, marketing, etc. of food from
the producers. Apart from that, the country also has extensive consumer protection laws to
enforce the duties of producers.

-THE CONTROVERSY-
Apoxia’s Wahgi has taken over the market due to its feasibility and nourishment among a
population that had been facing severe food shortages and malnourishment. It had been
operational for the past 21(twenty-one) years when Etinia became a host to a potential public
health disaster. Obesity started to become a pervasive affliction amongst the citizens of Etinia,
especially children. The number of obesities has gone concerningly high. Hospitals have

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STATEMENT OF JURISDICTION

diagnosed several people with chronic heart conditions and blood pressure issues. The premier
health research organization of Etinia is the Food Research Laboratory (FRL), which delved
into some research, analyzing the samples of instant noodle packets, to publish a report holding
the consumption of Wahgi, a culprit to the increasing health issues being faced by the people
of Etinia. FRL made a demand against Wahgi to disclose the ingredients of the noodles. The
FRL report made certain allegations such as the lack of complying with the packaging and
labeling requirements by Wahgi on their commercial packets and engaging in minimal
disclosure of information to the consumers. The report has led to the Wahgi being banned from
the markets of Etinia and has led people to mistakenly believe that the noodles are “unsafe and
hazardous”.

-DISPUTE-
The dispute comes, as Apoxia has denied all the allegations. The claims of Wahgi, that they
comply with all the food regulations, packaging and labeling requirements are made. The ban
and allegations have been termed, “baseless”. Apoxia has also refused to disclose its entire list
of ingredients on the claim of it being a trade secret important for the unique taste of Wahgi.
The refusal comes in the light of several rip-offs already trying to take over the captured
consumers of Wahgi. FRL has made the allegations that the reason for the effect of Wahgi to
become apparent now is that the nature of diseases is such that it would take some time to
spring up. FSSAE has also decided to take the Wahgi samples for testing the ingredients.
Apoxia has suspicions regarding the whole thing, as they suspect the reports could be biased
and manipulated. Dr. Ramsay has been a known critic of Wahgi and has published various
articles critical of the noodles and the alleged health hazards of it. The allegations have also
caused reputational damage to Apoxia Enterprises. The ban and mass boycott have led to
Apoxia losing out on hundreds of millions of dollars in revenue. It has also faced a potential
investment loss and a deep dent to its brand value and good faith. The allegations made in the
report of FRL has also led to the large consumer loss for Apoxia, with several consumer
complaints being filed against them, The Consumer agitation has been growing rapidly against
Apoxia, causing angry consumer groups, demanding compensation for loss of health.

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ISSUES RAISED

ISSUES RAISED

-ISSUE I-

IS APOXIA OBLIGATED TO REVEAL THE TRADE SECRET AND ELEMENTAL

COMPONENTS OF WAHGI, AND AS A RESULT, HAS IT BREACHED THE
STIPULATIONS FOR PACKAGING AND LABELING?

-ISSUE II-

IS THE DECISION OF FSSAE TO IMPOSE A NATIONWIDE BAN ON THE SALE OF

WAHGI JUSTIFIED?

-ISSUE III-

SHOULD APOXIA BE HELD RESPONSIBLE FOR COMPENSATION IN THE

CONSUMER ACTION LAWSUIT, CONSEDRING THE POTENTIAL PUBLIC HEALTH
CRISIS IT MIGHT HAVE CONTRIBUTED TO?

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SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

A. APOXIA IS BOUND TO DISCLOSE THE TRADE SECRETS AND

CONSTITUENT INGREDIENTS OF WAHGI

The Petitioners submits that Apoxia is bound to disclose the trade secrets and constituent
ingredients of Wahgi since: Right to know what you are consuming through the labelling
requirements mandates Apoxia to reveal all the ingredients [A]; Section 18 of FSSAE
empowers FSSAE to mandate Apoxia to reveal all its ingredients [B]; and fulfilment of
FSSAE’s advisory duty to the Central and State government under Section 16, mandates
Apoxia to reveal all its ingredients [C].

B. FSSAE IS CORRECT IN BANNING THE SALE OF WAHGI

The Petitioners humbly submits that FSSAE is correct in banning the sale of Wahgi since:
Commissioner has the power and did not have guilty mind since risky conditions existed [A];
there is no violation of Principle of Natural Justice [B]; in consonance with Article 21, 39 and
47 of the Constitution [C] and there is Judicial Overreach of Power[D].

C. APOXIA IS LIABLE TO PAY COMPENSATION

The Petitioners submits that Apoxia is liable to pay compensation since: it is the responsibility
of the product manufacturer to pay compensation for any harm caused [A]; and Apoxia
committed Negligence [B].

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ARGUMENTS ADVANCED

I. APOXIA IS BOUND TO DISCLOSE THE TRADE SECRETS AND

CONSTITUENT INGREDIENTS OF WAHGI

It is submitted humbly before the Hon’ble Supreme Court of Etinia that Apoxia is bound
to disclose the trade secrets and constituent ingredients of Wahgi.

A. That Right to know what you are consuming through the labelling requirements
mandates Apoxia to reveal all the ingredients.

1. It is submitted that the regulation 5(2) of Food Safety and Standards (Labelling and
Display) Regulations, 20192 state that the manufacture must reveal all the ingredients
on the label of the food item.
2. The Delhi High court, in Ram Gaua Raksha Dal v. Union of India, relying on
Regulation 2.2.2 of Food Safety and Standards (Packaging and Labelling) Regulations,
20113, which is exactly identical to Regulation 5(2)4 of the 2019 regulations, held that
“every person has a right to know as to what he/ she is consuming, and nothing can be
offered to the person on a platter by resort to deceit, or camouflage.”5 The court also
directed that all Food Business Operators and the Food Authority must ensure that
“there should be full and complete disclosure of all the ingredients which go into the
manufacture of any food article, not only by their code names but also by disclosing as
to whether they originate from plant, or animal source, or whether they are
manufactured in a laboratory, irrespective of their percentage in the food article.”6
The court, consequently, caused the exceptions provided to be rendered moot.
3. The court held that non-compliance with such an order is as a violation of consumer’s
fundamental rights as it observed “that failure on the part of the Food Business
Operators to comply with the above requirements would expose themselves to, inter
alia, class action for violation of the fundamental rights of the consuming public and
invite punitive damages, apart from prosecution.”7

2
Govt. of India, Ministry of Health & Family Welfare, F. No. 1-94/FSSAI/SP(Labelling)/2014(Pt-2), (November
17, 2020).
3
Govt. of India, Ministry of Health & Family Welfare, F. No. 2-15015/30/2010, (August 1, 2011).
4
Supra Note 2.
5
Ram Gaua Raksha Dal v. Union of India, W.P.(C) 12055/2021.
6
Id.
7
Supra Note 5.

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4. Consequently, Apoxia is obligated to reveal every single ingredient of Wahgi.

B. That Section 18 of Food Safety and Standards Act, 2006, empowers FSSAE to
mandate Apoxia to reveal all its ingredients

5. It is submitted that Section 18 of Food Safety and Standards Act, 20068, empowers
FSSAE, to mandate Apoxia to reveal all its ingredients. Section 18 provides FSSAE
with very wide powers, to take any action in relation to any food commodity in the
interest of public health.
6. Section 18(1)(b) empowers the Food Authority to “carry out risk management which
shall include taking into account the results of risk assessment and other factors which
in the opinion of the Food Authority are relevant to the matter under consideration and
where the conditions are relevant, in order to achieve the general objectives of
regulations.”9
7. Section 18(1)(f) empowers the Food Authority such that “in cases where there are
reasonable grounds to suspect that a food may present a risk for human health, then,
depending on the nature, seriousness and extent of that risk, the Food Authority and
the Commissioner of Food Safety shall take appropriate steps to inform the general
public of the nature of the risk to health, identifying to the fullest extent possible the
food or type of food, the risk that it may present, and the measures which are taken or
about to be taken to prevent, reduce or eliminate that risk.”10
8. The Bombay High Court while analysing Section 18, in the case of The Association of
the Traders v. Union of India, described the section’s importance by holding it integral
to the very purpose of the legislation and the Food Authority, as it held that “significant
feature to be noted in this provision is that the entire endeavour is to take care of the
harmful effects of food on the basis of scientific studies and taking appropriate
measures to ensure availability of safe food for human consumption.”11
9. The case of Dhariwal Industries Ltd. and Anr. v. State of Maharashtra, where again
while describing Section 18, it was held that the Food Authority doesn’t just have the
negative role of preventing health related crisis in context of food but also is “required

8
Food Safety and Standards Act 2006.
9
Id.
10
Supra Note 8 at Section 18.
11
The Association of the Traders v. Union of India, 2015 SCC OnLine Bom 4811.

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ARGUMENTS ADVANCED PAGE | 3

to play a very pro-active role for ensuring safe and wholesome food and to prevent and
eliminate risk to health caused by unsafe food.”12
10. These aforementioned judgements indicate that the extent of the powers under Section
18, the Food Authority has concerning food commodities in context of public health, is
extremely wide and moreover show the flexibility attached to the powers given by
Section 18 to the Food Authority.
11. FSSAE in order to tackle and manage the likely risk of Obesity, to general public health,
possessed by Wahgi and also similar instant noodles in general, requires information
regarding the ingredients of Wahgi. In order to inform the general public of the nature
of risk possessed by Wahgi, it is imperative that FSSAE must get the access to the entire
list of ingredients.
12. In the case of Sugandhi Snuff King Pvt. Ltd. and Ors. v. Commissioner (Food Safety)
Government of NCT of Delhi, the court held that “the use of the word “shall” in the
beginning of Section 18 of the FSSA would clearly and unequivocally demonstrate the
mandatory nature of the procedure to be followed.”13
13. In arguendo, if any assertion of the Section only giving out guidelines and not being an
actual source of power for the food authority, which were raised in the case of Nestle
India Limited v. The Food Safety And Standards Authority of India14 by the Bombay
High Court, are invoked then they are flawed.
14. The Supreme Court in the case of Swamy Achyutanand Tirth & others v. Union of India
scope of this was explored by the apex court when it ordered the Food authority in
context of milk adulteration that “as stipulated in Section 18(1)(f) the States/Food
Authority/Commissioner of Food Safety shall inform the general public of the nature of
risk to health and create awareness of Food Safety and Standards.”15 The court ordered
the authority to “educate school children by conducting workshops and teaching them
easy methods for detection of common adulterants in food, keeping in mind indigenous
technological innovations.”16 This case perfectly illustrates how the exercise of the
power of the Food Authority and the flexibility of that power obtained through Section
18 operates in practicality.

12
Dhariwal Industries Ltd. and Anr. v. State of Maharashtra, 2012 SCC OnLine Bom 1370.
13
Sugandhi Snuff King Pvt. Ltd. and Ors. v. Commissioner (Food Safety) Government of NCT of Delhi, 2022
SCC OnLine Del 3149.
14
Nestle India Ltd. v. Food Safety & Standards Authority, 2015 SCC OnLine Bom 4713.
15
Swamy Achyutanand Tirth & others v. Union of India, (2016) 9 SCC 699.
16
Id.

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15. In light of the aforementioned judicial pronouncements and instances, it is conspicuous

that Section 18, empowers and mandates FSSAE to Apoxia to reveal all its ingredients.

C. That fulfilment of FSSAE’s advisory duty to the Central and State government
under Section 16, mandates Apoxia to reveal all its ingredients

16. Section 16(3)(b)(iii) and Section 16(3)(b)(v), mandates the Food Authority to “search,
collect, collate, analyse and summarise relevant scientific and technical data
particularly relating to”17 contaminants in food and identification of emerging risk,
respectively.
17. Section 16(3)(d) empowers the Food Authority to “provide scientific and technical
advice and assistance to the Central Government and the State Governments in
implementation of crisis management procedures with regard to food safety and to
draw up a general plan for crisis management and work in close co-operation with the
crisis unit set up by the Central Government in this regard.”18
18. The court in The Association of the Traders v. Union of India, analysed Section 16 of
the FSS Act, and held that the sub-section (3) of the concerned section conferred on the
Food Authority an “advisory role namely to provide scientific advice and technical
support to the Central Government and the State Governments in matter of framing the
policy and rules in areas which have a direct or indirect bearing on food safety and
nutrition, and various other ancillary works as enumerated in sub-sections (a) to (n)”
of the sub-section in question.”19
19. Consequently, it humbly submitted that in order to fulfil its mandate, to advise the
Central and different State governments, such that they are better equipped to tackle the
obesity health crisis being faced by Etinia, Apoxia must reveal all its ingredients.

In the light of the arguments advanced and authorities cited, it is humbly submitted that on
the basis of all these essentials Apoxia is bound to disclose the trade secret and constituent
ingredients of Wahgi.

17
Supra Note 8 at Section 16.
18
Supra Note 8 at Section 16.
19
Supra Note 11.

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II. FSSAI IS CORRECT IN BANNING THE SALE OF WAHGI

It is humbly submitted before the Hon’ble Court that FSSAE was correct in Banning the sale
of Wahgi.

A. That the Commissioner has the power to Ban and did not have guilty mind since
risky conditions existed

20. The Petitioners submit that the Commissioner had the power to ban Wahgi on the
grounds of public health risk conditions posed by the product. Further, it is also
submitted that the Commissioner did not have any guilty mind while he had passed the
prohibition order.
21. The ban on Wahgi was not hasty but based on scientific evidence provided by
accredited laboratories. In matters of public health, a preventive approach is crucial.
The FSSAE has the duty to ensure that food products do not pose potential health risks.
FSSAE's ban on Wahgi is consistent with this approach, aiming to preempt potential
health hazards that could emerge over time due to prolonged consumption of the
product. The case of Janta Dal v. H.S. Chowdhary20 recognizes that regulatory bodies
must take decisive actions when warranted by credible evidence.
22. Sections 2621 and 2822 imposes a duty and obligation on the food business operator to
ensure that articles of food satisfy the requirements of the Act.23 The Commissioner of
Food Safety shall exercise the powers and follow the procedure as specified in the act.24
Therefore, the Food Authority has the power to pass the impugned prohibition
order under Section 2625, 2826 and 2927 of the FSSAE Act. Under Section 26(2)(i) of
the FSSAE act it is the obligation of the food operator to not manufacture or sale any
food which is unsafe.28

20
Janta Lal v. H.S. Chowdhary, AIR 1993 SC 892.
21
Supra Note 8 at Section 26.
22
Supra Note 8 at Section 28.
23
Supra Note 14.
24
Supra Note 14.
25
Supra Note 8 at Section 26.
26
Supra Note 8 at Section 28.
27
Supra Note 8 at Section 29.
28
Supra Note 12.

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23. Section 3029 of the Act gives power to the Commissioner of Food Safety of the State
and Food Authorities to take decisions in case of an emergent situation and the
procedure which is to be followed before passing the order under the said provision.
24. In the Nestle case, it was held that if the Commissioner of Food Safety is satisfied that
a ‘health risk condition’ exists then he can impose a prohibition. “The object of this
provision is to overcome an emergency situation in the interest of public health.”30
25. When Section 30 (a)31 is read with 34(1)(2)32, it can be deciphered that the
Commissioner can issue a prohibition order when a report is laid down that the health
risk condition exists with respect to any food business. 33
26. In the case of Commissioner v. Sugandhi 34, it was held that section 30(2)(a)35 as well
as Regulation 2.3.4 embodies the power to prohibit a particular food article in the hands
of the Commissioner.
27. “It extremely difficult in a large majority of cases to establish affirmatively that storage
or sale of adulterated or misbranded foodstuff was with a guilty mind. Thus, it is often
found necessary in the larger public interest to provide for imposition of liability
without proof of a guilty mind”.36
28. Thus, applying the law to the given factual matrix, it can be held that the Food Authority
has acted within the limits of the power vested in their hands by the virtue of the FSSAE
act. Further, the authority did not have any guilty mind before passing the prohibition
order since emergent circumstances had existed.37

B. That there is no violation of Principle of Natural Justice

29. It is respectfully submitted that food authority had the power to impose a ban without
giving a show cause notice since the food was unsafe for consumption and kids
consumed it too.38

29
Supra Note 8 at Section 30.
30
Supra Note 14.
31
Supra Note 8 at Section 30.
32
Supra Note 8 at Section 34.
33
Supra Note 14.
34
Commr. (Food Safety) v. Sugandhi Snuff King (P) Ltd., 2023 SCC OnLine Del 2003
35
Supra Note 8 at Section 32.
36
Andhra Pradesh Grain and Seed Merchants Association v. Union of India, AIR 1971 SC 2346.
37
Moot Proposition, ¶6.
38
Id.

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30. In the case of Association of traders v. Union of India39, it was held that the main
foundation of Section 18 relies to preserve human life and health alongside protect the
consumers interests with respect to food safety and standard and practices. “The entire
endeavor is to take care of the harmful effects of food on the basis of scientific studies
and taking appropriate measures to ensure availability of safe food for human
consumption. The object of this provision is to overcome an emergency situation in the
interest of public health, nevertheless a safeguard”.40
31. In the case of Vital Nutraceuticals Private Limited v. Union of India,41 it was held that
“it is mandatory that the Authorities are required to take appropriate steps to protect
the health and every possible measure in relation to that as is clear from the reading of
the aforesaid principles enshrined in sub-section (1) of Section 18. The ultimate object
is to protect the human livelihood which would otherwise be seriously affected if unsafe
and sub-standard or dangerous food is left for consumption of the innocent people who
will be hardly aware of the hazardous nature of ingredients of such food.”
32. The principles of natural justice are very flexible principles. Under certain
circumstances, principles of natural justice may even be excluded by reason of diverse
factors like time, place, the apprehended danger and so on. In the Nestle case42, it was
also held that when the authority passes a prohibition order in view of compelling and
threateningly emergent situations, principles of natural justice does not come into play
as it remains in the interest of public health.
33. In the case of Dhariwal Industries Ltd and another v. State of Maharashtra and
others43, the court held that in case of any violation of any provision, the Commissioner
of Food Safety has the power to issue a quasi-legislative order under Section 30(2)(a)44
of the FSSAE Act. The Commissioner of Food Safety is a delegate of the Parliament,
need not follow the principles of natural justice.45
34. “In cases of emergency, order banning the product can also be passed and, obviously,
in such cases, question of giving hearing does not arise. The principal object in passing

39
Supra Note 11.
40
Supra Note 11.
41
Vital Nutraceuticals Private Limited v. Union of India, 2014 SCC OnLine Bom 195
42
Supra Note 14.
43
Supra Note 12.
44
Supra Note 8 at Section 30.
45
Supra Note 12.

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these orders is to protect public interest at large and to see the public welfare and to
ensure that the food which is sold is not unsafe for human consumption.”46
35. “In view of the exhaustive definition of ‘risk’ and its peripheral expressions, the
Designated Officer ought to have made a risk assessment before recommending
prohibition.”47
36. “If the possibility of harmful effects on health is identified but scientific uncertainty
persists, provisional risk management measures necessary to ensure appropriate level
of health may be adopted. In cases where there are reasonable grounds to suspect that
a food may present a risk for human health, the Food Authority and the Commissioner
of Food Supply shall inform the general public about the food, risk to health and
measures being taken to prevent or eliminate that risk. Section 18(2)(a) also requires
that the Food Authority shall, while framing regulations and specifying standards
under the Act, ensure prevention of unsafe or contaminated or substandard food.”48
“The word “shall” in Section 18 would be mandatory”.49 Thus, the ban on the sale of
Wahgi was a necessary and proportionate measure taken by FSSAE to protect public
health, ensure compliance with regulatory standards, and prevent potential harm caused
by unsafe food products. FSSAE's actions were based on sound scientific evidence,
adherence to testing protocols, and regulatory authority vested in the Act and its
sections. Upholding the ban is essential to safeguard consumers, prevent deceptive
practices.
37. Therefore, according to the FRL reports released after assessing the risks, it can be said
that a public health risk existed which had caused a public health crisis.50 In such
emergent circumstances, the principle of natural justice does not come into picture.

C. That the ban is in consonance with Article 21, 39 and 47 of the Constitution

38. The Petitioners submit that the ban which was imposed by the Food Authority is in
consonance with the Fundamental Rights and the Directive Principles of State Policy
which are enshrined in the Constitution of India. The ban imposed is for the protection
of public health and the prevention of potential harm. The foremost duty of the Food

46
Supra Note 14.
47
Omkar Agency v. The Food Safety and Standards Authority of India, 2016 SCC OnLine Pat 9231.
48
Supra Note 12.
49
Lakshmanasami Gounder v. C.I.T., Selvamani, (1992) 1 SCC 91
50
Moot Proposition, ¶ 8.

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Safety and Standards Authority of India (FSSAE) is to ensure the safety and well-being
of the public. In light of this duty, the ban on the sale of Wahgi is a responsible and
necessary action taken to safeguard public health and prevent potential harm that could
arise from the consumption of a product with potential health risks. Furthermore, Right
to health has a higher pedestal over any other right including the right to trade.
39. “Public health is one of the most important part of the society and country and
therefore, it is necessary to take all steps to preserve the same in all possible
manners.”51 “The Legislature has abundantly clothed the Food Authority with powers
to perform its duty to ensure safe and wholesome food for human consumption by
providing in no unclear terms.”52
40. In the case of Andhra Pradesh Grain and Seed Merchants Association v. Union of
India, it was held that the food authority is vested with powers and duties under section
16(1)(5)53, Section 1854 and Section 2255 of the Act which has to be read with the
requirement to achieve the mandate of Article 2156 read with section 39(e) and (f)57 and
Article 4758 of the Constitution.59 This was also reaffirmed in the Vitra Nutraceuticals
case60 as it is a constitutional requirement emanating from the provisions of Article 21
read with Article 39 and 47 of the Constitution of India to safeguard public interests.
“Right to livelihood includes right to live with dignity. Thus, these constitutional
provisions recognize the human right to have safe and wholesome food apart from the
provisions of the FSS Act. If inferior and substandard food is supplied in the market, it
would not only affect the Society at large but it would definitely take away these
valuable constitutional requirements.” 61 This was further reiterated in the case of
Centre for Public Interest Litigation v. Union of India 62. Thus, by imposing the ban,
the Food Authority was adhering to the constitutional mandates by protecting their right
to livelihood and safeguards public health.

51
Supra Note 13.
52
Supra Note 41.
53
Supra Note 8 at Section 16.
54
Supra Note 8 at Section 18.
55
Supra Note 8 at Section 22.
56
INDIA CONST. art. 21.
57
INDIA CONST. art. 39.
58
INDIA CONST. art. 47.
59
Supra Note 36.
60
Supra Note 41.
61
Supra Note 36.
62
Centre for Public Interest Litigation v. Union of India, (2013) 16 SCC 279

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41. The Right to carry on trade as guaranteed by Article 19(g)63 is subject to reasonable
restrictions which are imposed in the interests of the general public.64 An imposition of
restriction on the exercise of a fundamental right may be in the form of prohibition.65
The Supreme Court in B.P. Sharma v. Union of India66, held that citizens have the
freedom to choose any business, profession or trade along with the way in which they
carry on their occupation; nevertheless, the State may, in the public interest, impose
reasonable restrictions. In the case of Andhra Pradesh Grain and Seed Merchants
Association v. Union of India67, it was held that “A statute enacted by the Parliament
in the interest of public health imposing liability for an offence without proof of a guilty
mind does not per se impose restrictions on the freedom to carry on trade which are
unreasonable”. “There is no fundamental right to do business in adulterated or unsafe
food. Section 34 would be applicable in an emergency which would require immediate
solution of a problem where there is a danger of health risk, such as food poisoning or
danger of death of the consumers by consumption of adulterated or unsafe food.”68
Further, the appropriateness of a restriction must be judged objectively and in the public
interest, rather than from the perspective of those who are subjected to the limits or on
the basis of abstract reasons.69 In light of the orders passed by the courts, it can be said
that Public health and safety remains at a higher pedestal than the right to
trade/business. By imposing such a ban, the Food Authority was only ensuring the
adherence to the constitutional mandate.
42. Further, Article 12 of the International Covenant on Economic, Social and Cultural
Rights70 mandates the state to recognize the right of physical and mental health and take
necessary action for prevention, treatment and control of epidemic, endemic,
occupational and other diseases.

63
INDIA CONST. art. 19.
64
Akshay N. Patel v. RBI, (2022) 3 SCC 694.
65
Municipal Corporation of the City of Ahmedabad v. Jan Mohammed, (1986) 3 SCC 20.
66
B.P. Sharma v Union of India, AIR 2003 SC 3863.
67
Supra Note 36.
68
Supra Note 11.
69
Mohd. Hanif Qureshi v State of Bihar, AIR 1958 SC 731.
70
United Nations (General Assembly). (1966). International Covenant on Economic, Social, and Cultural Rights.
Treaty Series, 999, 171.

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D. That there is Judicial Overreach of Power

43. In the case of Jacob Puliyel v. Union of India71, it was held that “Courts do not and
cannot act as appellate authorities examining the correctness, suitability and
appropriateness of a policy, nor are courts advisors to the executive on matters of
policy which the executive is entitled to formulate. The rule of prudence is that courts
will be reluctant to interfere with policy decisions taken by the Government, in matters
of public health, after collecting and analysing inputs from surveys and research. Nor
will courts attempt to substitute their own views as to what is wise, safe, prudent or
proper, in relation to technical issues relating to public health in preference to those
formulated by persons said to possess technical expertise and rich experience. Where
the decision of the authority is in regard to a policy matter, this Court will not ordinarily
interfere since decisions on policy matters are taken based on expert knowledge of the
persons concerned and courts are normally not equipped to question the correctness of
a policy decision.”

In the light of the arguments advanced and authorities cited, it is humbly submitted that on
the basis of all these essentials, it is contended that the ban is a necessary and proportional
measure undertaken in the interest of public health and safety, and that FSSAE's actions were
based on credible evidence, regulatory authority, and established legal principles and were
not violative of article 19(1) g.

III. APOXIA IS LIABLE TO PAY COMPENSATION

It is humbly submitted by the Petitioners that Apoxia is entitled to pay Compensation under the
consumer action law suit.

A. That it is the responsibility of the product manufacturer to pay

compensation for any harm caused

44. State humbly submits before the Hon’ble court that the consumers are entitled to
compensation by Apoxia for the harm caused due to the consumption of their product
which led to a public health crisis.

71
Jacob Puliyel v. Union of India, 2021 SCC OnLine SC 3255

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45. The Wahgi produced and sold by Apoxia are opined by the FRL to be the reason behind
the public health crisis of obesity.72
46. Apoxia, by causing a public health crisis, has violated the right to health of the
consumers which is regulated by the Consumers Protection Act, 2019.73 Thus, the
consumers of the company are liable to pay compensation for causing obesity.
47. In the case Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company
Limited & Ors.74, the Madras High Court has held that a writ petition is maintainable
against any private body if it has a public duty imposed on it. Therefore, in the present
case, Apoxia would be amenable to writ jurisdiction.
48. "Product liability" means the responsibility of a product manufacturer or product seller,
of any product or service, to compensate for any harm caused to a consumer by such
defective product manufactured or sold or by deficiency in services relating thereto.75
Section 39(1)76 puts the product liability on the company and directs to pay
compensation in a product liability action to the consumer for any loss or injury suffered
by the consumer due to the negligence of the opposite party. This was further reiterated
in the Reliance Retail Ltd. v. Shailendrakumar Narsinhbhai Solanki77.
49. Section 84 of the Consumer Protection Act, 201978 holds that a product manufacturer
shall be liable in a product liability action even if he proves that he was not negligent
or fraudulent in making the express warranty of a product.
50. “Section 14(1) (d) is attracted if the person from whom damages are claimed is found
to have acted negligently and such negligence must result in some loss or injury to the
person claiming damages. In other words, loss or injury, if any, must flow from
negligence.”79 to pay such amount as may be awarded by it as compensation to the
consumer for any loss or injury suffered by the consumer due to negligence of the
opposite party;

72
Supra Note 50.
73
Consumers Protection Act, 2019.
74
Jasmine Ebenezer Arthur v. HDFC ERGO General Insurance Company Limited & Ors, W.P.Nos. 22234 of
2016
75
Supra Note 73 at Section 2.
76
Supra Note 73 at Section 39
77
Reliance Retail Ltd. v. Shailendrakumar Narsinhbhai Solanki, MANU/SK/0100/2023
78
Supra Note 73.
79
Consumer Unity & Trust Society v. Chairman & Managing Director, Bank of Baroda, (1995) 2 SCC 150.

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51. If the Commission concludes that a genuine claim of the Consumer is repudiated and
the consumer suffered loss, than the interest awarded by the Commission is by way of
compensation.80
52. In the instant case, Apoxia indulge in the sale of products which are consumed by the
masses and has dire consequences on their health.81 They are bound by the public duty
of being a manufacturer whose products should not have ill- intended or harmful effects
on consumers.
53. Apoxia engaged in a business catering to the public at large is endowed with a moral
duty to ensure that their products are not causing any harm or detriment to the health of
their customers and consumers.82 In the instant case, the company is blatantly violating
this duty and are continuously selling products having disastrous effects on the health
of their customers.83 Thus, holding Apoxia liable to pay Compensation.

B. That Apoxia has committed Negligence

54. In the current scenario, a consumer action lawsuit arises as Apoxia committed
negligence. Apoxia has to be held responsible for misleading customers with
incomplete and false information on its product “Wahgi”, causing them health problems
and mental agony.84 The furnishing of this information was prejudicial to the interests
of the consumers.85 Especially when people were living in a slowly brewing food
crisis.86 The much advertised “easy” nature of cooking Wahgi should have included
information on the potential obesity and shortage of breath as side-effects of
consumption of the food.87 The theory behind the existence of advertisement is to
ensure the consumer that the service or the product will remain the same; only in this
way can it justify its existence.88 Apoxia should have acted with due diligence before
coming into the FMCG markets of Etinia and should have undergone risk and safety
assessments from the Food Authority to get proper product approval. Even with the
rapid growth of FMCG, the producers are bound to tread in a careful manner to protect

80
The Oriental Insurance Co. Ltd. v. Jigar Hasmukh Soni, MANU/SK/0099/2023
81
Supra Note 50..
82
Moot Proposition, ¶ 3.
83
Id.
84
Bawa Paulins (P) Ltd. v. UPS Freight Services (India) (P) Ltd., 2022 SCC OnLine SC 1551.
85
Supra Note 8 at Section 89.
86
Supra Note 37.
87
Supra Note 37.
88
What Does Advertising Do for the Consumer? (1973), Journal of Advertising, 2(2), 22–27.

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the consumers; the products brought in have to meet certain expectations and should be
well thought.89 Failing to comply with the directions under the Regulation, which
requires Apoxia to get registered as provided under Section 31(2) of the FSS Act, is an
act of gross negligence on the part of Apoxia.
55. Further, the company owed a duty of care towards their consumers, breached that duty,
and caused harm in the form of a public health crisis as a result of the breach.
Negligence arises from the actions or omissions by the company that have contributed
to the public health crisis.
56. The Donoghue v. Stevenson's90 case laid down the principle that a manufacturer owes
a duty of care to every possible consumer of his product and that such a consumer can
bring an action against the manufacturer even if there is no contract between the two
parties.

In the light of the arguments advanced and authorities cited, it is humbly submitted that
Apoxia is entitled to pay compensation on account of harm caused due to the use of their
product.

89
S. L. Rao (2001). Rise and Fall of Fast Moving Consumer Goods: A Marketing Story. Economic and Political
Weekly, 36(46/47), 4375–4379.
90
Donoghue v. Stevenson, [1932] A.C. 562 (H.L.).

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 IX
PRAYER

PRAYER

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities cited,
the Petitioners most humbly pray before the Hon’ble Supreme Court of Etinia to adjudge,
declare and hold the following:

1. That Apoxia is bound to disclose the trade secret and constituent ingredients of Wahgi,
and consequently has violated the packaging and labelling requirements.

2. FSSAE is correct in banning the sale of Wahgi across the country.

3. Apoxia should be liable to pay for compensation in the consumer action lawsuit.

Or pass any other order, direction, or relief that this Hon’ble Court may deem fit in the

interests of justice, equity and good conscience.

For this Act of kindness, the petitioners as is duty bound shall ever pray.

(Respectfully Submitted)

Counsels on behalf of the Petitioners

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