Soft drinks, hard realities

Soft drinks, hard realities
The CSE report into pesticides in soft drinks found high levels in many common brands. The Joint Parliamentary Committee recommended regulations to put adequate safety standards into place. Sanjay Parikh reviews the outcome of a very public effort to protect public health.

Combat Law, Vol. 3, Issue 2 - By the middle of this century "at worst 7 billion people in 60 countries and at best 2 billion people in 48 countries will be water scarce". (The Hindu dated 16th May, 2004). The world water-crisis paints a very grim picture. India is among nine countries which account for 60% of the world's natural fresh water. But unfortunately, water resources in our country are being polluted by the industrial effluents, untreated sewerage; ground water is contaminated by heavy use of pesticides and dumping of toxic wastes; there are no efforts made to recharge the natural aquifers; the lakes and ponds which used to exist in our towns/villages are being covered up by the builders in connivance with local authorities. All this is done despite the legal position being that the water, which flows in the river or exists in the ponds, lakes and under-ground belongs to the public. The State and its authorities are the trustees to prevent its depletion or deterioration; they are also responsible for its preservation. This is recognized under Article 21 of the Constitution. The doctrine of Trusteeship, the concept of intergeneration equity, pollution free environment and fresh drinking water have been held to be a part of life under Article 21 of the Consitution. Under the 73rd Constitutional Amendment, Panchayats have been given right over the drinking water and traditional water resources.

Despite this legal position, the contamination of the rivers and of water resources is continuing unabated. The industries which are mainly responsible for this contamination are doing yet another wrong by using huge quantities of underground water for selling the bottled water or soft drinks and making profits on it at the cost of deprivation of water in the surrounding area. It is a curious situation where those who are responsible for the contamination of water resources are now telling the people that the water available outside is not safe for drinking and that the safe water is available only in bottles. Notwithstanding the means, the multi-national companies are making all efforts to monopolise water, which is essentially in the public domain. They are selling this water as being safe for consumption either in the form of bottled waters or soft drinks. The question, however, is whether the drinking water in bottles or in the soft drinks is safe for consumption. "It is not", is what the report of the Joint Parliamentary Committee (JPC) on soft drinks points out.

The CSE Report

The debate regarding safety standards for soft drinks had actually started when presence of pesticides - organochlorines and organophosphorus - were noticed in bottled water. The Centre for Science and Environment (CSE) had collected samples of bottled water from Delhi and Mumbai and of ground water in and around the bottling plants. These samples (as many as 17 brands) were tested in their own laboratory. The total pesticide residues in the samples collected in Delhi were as high as 36.4 times of the European Standards. This led to a report in February, 2003 being issued by the CSE on bottled water. The exposure by CSE compelled the Government to issue a Notification on 18th July 2003 setting standards for packaged drinking water. The limit now is "not more than 0.0001 mg/litre" pesticide residues considered individually and "not more than 0.0005 mg/litre" the total pesticide residues.

The logical corollary of this first step was that soft drinks use the same water and, therefore, what about safe standards for the soft drinks? The CSE in its study of the samples of soft drinks found the same pesticides as in the bottled water, namely, DDT, lindane, chlorpyrifos, malathion. The question raised was should the MNCs manufacturing carbonated soft drinks not follow safety standards to protect public health? The further question was, why they should not use the same standards as they follow in developed countries - USA or in Europe? Obviously, MNCs like Pepsi Co took advantage of the absence of regulations and there being no check in law to sell such soft drinks in spite of the heavy presence of pesticides posing a long term health hazard. Whether the MNCs can be permitted to sell their beverage/food items without following any standards and caring least for the human health thus became the precise issue. The assumption by the MNCs like PepsiCo that such acts are usually tolerated in the under-developed and developing countries is a slur on our system.

In view of the report of the CSE, the big claims made by PepsiCo and Coca Cola shattered. PepsiCo filed a Writ Petition before the Delhi High Court asking, among others, that directions be issued to the Government/Government agencies not to publish the report of CSE. Significantly, it was stated in the Petition that they are adhering to the strictest standards followed by EU:

"Petitioners adhere to the strictest standards in respect of Pepsi Beverages. The requirements which are self-imposed as regards content of traces substances in the nature of impurities are far more stringent than those prescribed by the Directive issued by the European Union (EU), World Health Organization (WHO) norms as also the United States Environmental Protection Agency (USEPA) and the Food and Drugs Administration (FDA) of USA. It is further stated that the standards set by Petitioners are global in their application and apply as fully to their products manufactured in India as in all other countries."

Pesticides Found
The pesticides which were found in the soft drinks - Lindane, DDT and its metabolites, Chlorpyrifos and Malathion - have extremely harmful effects on human health. Lindane, which is absorbed through respiratory, digestive or cutaneous routes, damages liver, kidney, neural and immune systems and induces birth defects, cancer and death. DDT and its metabolites have effects on reproduction and increases risks of breast cancer in women. Chlorpyrifos causes immunological change. Malathion causes birth defects in variety of wildlife, muscle weakness and paralysis. Melaxon which is the metabolite of malathion is more toxic than malathion itself. It is also noticed in the Report that soft drinks companies like Coca Cola and Pepsi were forced to sell non-caffeinated soft drinks in the USA and Europe whereas in India they sell caffeinated drinks. Caffeine is a methylated xanthine which is a mildly addictive stimulant drug. Large amount of caffeine consumption can cause diseases and disorders such as insomnia, nervousness, anxiety, irritability etc. It increases the excretion of calcium in urine which poses the risk for osteoporosis. There are other adverse effects regarding maternal fertility problems which have been noticed. The U.S. Food and Drug Administration gave a warning in 1981 itself that "pregnant women should avoid caffeine containing foods and drugs, if possible, or consume them only sparingly". There was no reasonable justification given by the companies - PepsiCo or Coca Cola - for not selling non-caffeinated soft drinks.
It is also noteworthy that PepsiCo had withdrawn all the allegations of malafide made against the CSE in the Writ Petition. The Petition was taken up by the Delhi High Court and the Court directed that the samples of various products of PepsiCo be taken and sent for testing by the Government Laboratories. The reports from the CFL, Kolkata and CFTRI, Mysore submitted by the Government on different samples clearly supported the CSE's version that EU standards were not followed: the difference in figures (the amount of pesticide residues) was on account of various reasons, one among them being the difference in samples. But both the Government laboratories found pesticide residues 1.2 to 5.22 times higher than the EU limit for total pesticide residues. The tests conducted, therefore, belied the contention made by PepsiCo in their Writ Petition that they follow EU standards.

Joint Parliamentary Committee

Meanwhile, a Joint Parliamentary Committee (JPC) was constituted on "Pesticide Residues in and Safety Standards for Soft Drinks, Fruit Juices and Other Beverages". While the JPC was debating on this issue, PepsiCo decided to withdraw the Writ Petition from the Delhi High Court. May be one could reason it out because of the results of Government laboratories going against the statements of PepsiCo in the Writ Petition that their products are as per the EU standards.

The JPC submitted its report to the Lok Sabha on 14.2.2004. The terms of reference (TOR) of the Committee were (i) to know whether the recent findings of CSE regarding pesticide residue in soft drinks are correct or not; and (ii) to suggest criteria for evolving suitable safety standards for soft drinks, fruit juices and other beverages where water is the main constituent.

On the first TOR, inter-alia, the conclusions drawn by the Committee was as follows: - "1.96 The Committee, however, find that the CSE findings are correct on the presence of pesticide residues in carbonated water strictly in respect of the 36 samples of 12 brand names analySed by them. The Committee also appreciates the whistle blowing act of CSE in alerting the nation to an issue with major implications to food safety, policy formulation, regulatory framework and human and environmental health." {See Annexure VIII of the Report}

Before going into the conclusions drawn by the JPC and recommendations made on the soft drinks, what was said on water is extremely important: -

i) That water is an elixir of life and its importance as an item of food needs hardly to be spelt out. It is, however, most disconcerting to note that even after 50 years of the enactment of the Prevention of Food Adulteration Act, 1954 (PFA Act), the necessity of including it under the definition of "Food" has not been felt. The Committee recommended that section 2(v) of the PFA Act which defines "Food" should be amended without further loss of time.

ii) Due to the absence of any prescribed standards, the manufacturers took full advantage of unregulated regime by charging heavily for the water which, according to the admission of the BIS itself, was being sold after filling the bottles from the municipal water without any processing.

iii) The Committee recommended that norms for drinking water should be formulated based on scientific studies and should be such which are achievable. At the same time it is very essential that these standards are made legally enforceable. Earnest efforts in this regard must be initiated immediately.

iv) Finally, the Committee recorded their displeasure on the weakness of the enforcement system which has resulted in the appearance of spurious brands of packaged drinking water in the market. This menace has to be dealt with on the lines of the sure (none is spared), swift (fast processing of case) and severe (deterrent punishment) approach proposed by the Mashelkar Committee to curb the spurious drugs menace in the country. The PFA Act, as recommended in the last Chapter of this report, should be suitably amended. Surveillance of drinking water quality has to be a continuous exercise.

Recommendations of the JPC

The conclusions/recommendations drawn by the JPC on soft drinks and related aspects are significant. Some of those recommendations are discussed below: -

i) The Committee noted with deep concern that the soft drink (Carbonated water/Sweetened Aerated water) industry in India with an annual turnover of Rs. 6000 crores is unregulated. It is exempted from Industrial Licensing under the Industries (Development and Regulation) Act, 1951 and gets a one time licence to operate from the Ministry of Food Processing Industries under the Fruits Products Order (FPO) 1955 and a no objection certificate from the local government and the State Pollution Control Board.

ii) The Committee recommended that the standards should be fixed after proper consultations involving experts, scientists, farmer representatives, consumer organizations, trade and industry etc. The Committee also emphasized the need for taking the opinion of the Central Committee on Food Standards (CCFS) which is a statutory body under the PFA Act, 1954.

iii) The Committee recommended that standards for carbonated beverages, which are best suited for the Indian conditions need to be fixed in the overall perspective of public health. These standards should also be stringent enough. The reason that the other countries have not fixed such limits, should not dissuade our law makers in attempting to do so, particularly when a vulnerable section of our population who are young and constitute a vast national asset are consuming the soft drinks. In Committee's view therefore, it is prudent to seek complete freedom from pesticide residues in sweetened aerated waters. `Unsafe even if trace' should be the eventual goal.

iv) Extraction of ground water for commercial use by the soft drink manufacturing companies or bottled water manufacturing companies be properly regulated, particularly when water levels in many parts of the country are getting depleted alarmingly. This regulation should prevent indiscriminate use of water for commercial purposes. The Committee strongly recommended that provision should be made in the relevant Act making it mandatory for those who use water for commercial purposes to recharge ground water to the maximum extent possible.

v) The Committee desired that option should be made available to the consumer to choose between caffeinated and non-caffeinated soft drinks and that there should be no difference in the quality of products being marketed in India as compared to those which are being sold in the USA or other European countries. The Committee also recommended that use of caffeine be regulated/ restricted based on best practices followed globally regarding caffeine and its effects on human health.

vi) The Committee made a further important recommendation that whether PepsiCo and Coca Cola are doing manufacturing directly in their own bottling units or through franchises, it is the absolute responsibility of the brand owners - who select the bottlers, provide the processing technology, quality know-how, the concentrate and finally market the end-products - to ensure that consumers get a product which is in conformity with the prescribed norms of quality and safety. The Committee, therefore, recommended that the onus for maintaining the quality should lie with the parent companies/brand owners and its compliance should be ensured.

ANNEXURE XIII COMPARISON OF THE RESULTS OF CFL (CFTRI) MYSORE, CSE, NEW DELHI AND CFL, KOLKATA
Sl. No	Brand	CFL (CFTRI) Mysore		CSE, New Delhi		CFL, Kolkata
		Total Pesticide Residues OC + OP (mg/L)	No. of folds higher than EEC Limits	Total Pesticide Residues OC + OP (mg/L)	No. of folds higher than EEC Limits	Total Pesticide Residues OC + OP (mg/L)	No. of folds higher than EEC Limits
1	Limca	0.000029	Below EEC limits	0.0148	30	0.00042	Within limit
2	Diet Pepsi	0.000266	Below EEC limits	0.0071	14	0.00036	Within limit
3	Pepsi	0.000025	Below EEC limits	0.0187	37	0.00009	Within limit
4	7 Up	0.000584	1.6	0.0166	33	0.00033	Within limit
5	Fanta	0.000087	1.7	0.0214	43	0.00181	3.62
6	Mirinda (Lemon Flavour)	0.000211	4.2	0.0352	70	0.00174	3.48
7	Mountain Dew	0.00102	2.0	0.0141	28	0.00119	2.38
8	Thums Up	0.00100	2.0	0.0111	22	0.00063	1.26
9	Coca Cola	0.002	4.0	0.0223	45	0.0006	1.2
10	Mirinda (Orange flavour)	0.00171	3.4	0.0196	39	0.00261	5.22
11	Sprite	0.001628	3.2	0.0055	11	0.00012	Within limit
12	Blue Pepsi	0.00263	5.2	0.0147	29	0.00022	Within limit

These recommendations speak volumes about total lack of concern on public health by the Government and absence of safety standards. This is the unfortunate phenomenon which has been noticed in various other issues related to the protection of human health and environment. Where there is lacuna, it is exploited for making profits and even where law exists, it is not implemented which creates chaotic situation and corruption flourishes at the cost of permanent damage to the human health and environment. PFA Act requires drastic amendme nts not only with regard to packaged drinking water and soft drinks but also in several other areas keeping in view the present liberal market situation where all kinds of imported food items are being dumped for human consumption. The PFA Act,1954 has to adopt stringent norms on "food", which are in no way less than any international standards.

Sanjay Parikh
Combat Law, Volume 3, Issue 2
June-July 2004
(published January 2005 in India Together)

Sanjay Parikh is an advocate practising in the Supreme Court, and a civil rights activist.