5 months after, NBC yet to obey court order on Fanta, Sprite

Five months after a Lagos High Court, Ikeja, ordered the National Agency for Food, Drug Administration and Control (NAFDAC) to mandate the Nigerian Bottling Company (NBC) to include a written caution on bottles of its soft drinks containing benzoic acid and that such soft drinks should not be taken alongside Vitamin C, as they become poisonous if taken together, the company is yet to comply with the order.

Indications show that the Nigeria Bottling Company Plc, manufacturers of Fanta and Sprite soft drinks, has not complied with the court’s order mandating it to include a written warning label that the content of the bottles cannot be taken with Vitamin C.

The court had in March this year, ruled that high levels of benzoic acid and additives in Coca-Cola soft drinks could pose health risk to consumers when mixed with ascorbic acid, commonly known as vitamin C.

Following the alleged health implications, Justice Adedayo Oyebanji of the Lagos High Court ordered NAFDAC to compel the NBC to include a written warning that the content of the bottles cannot be taken with Vitamin C.

Although legal hostility between a Lagos business man, Dr. Emmanuel Fijabi Adebo, NBC and NAFDAC is pending at the Court of Appeal in Lagos as Adebo and his company, Fijabi Adebo Holdings have filed a notice of appeal against the judgment of the lower court, the NBC and NAFDAC have also filed notices of appeal against the same judgment.

In the notice of appeal filed before the appellate court on behalf of Adebo by his lawyer, Mr. Abiodun Onidare, he is contending that the trial Judge failed to award damages and grant the reliefs that were prayed for by the petitioner against NBC by ignoring the facts and the evidence before the court that the NBC was liable to Adebo and other consumers of its products especially its Fanta and Sprite which were held to contain excessive benzoic acid and sunset yellow and declared unfit for human consumption by the Stockport Metropolitan Borough Council’s Trading Standard Department of Environment and Economy Directorate, United Kingdom.

The development was also corroborated by Coca Cola European Union, being the food regulatory bodies of the United Kingdom and Europe on the NBC’s Franchise consequently negligent in the duty of care to petitioner and other consumers.

But the NBC in its notice of appeal filed before the appellate court by its lawyer, Mr Tunde Busari, SAN, is urging the appellate court to set aside or strike out the portion of the judgment directing NAFDAC to mandate NBC to include a written caution on bottles of its soft drinks containing benzoic acid and that the said soft drinks should not be taken alongside Vitamin C, as same becomes poisonous if taken together, on the grounds that the said pronouncement and others were not sought for nor prayed for by the petitioner but nevertheless, the lower court proceeded to grant the said relief which were not sought by the said petitioner, thereby ordering the company to take a step detrimental to its business and well-being.

NAFDAC in its notice of appeal filed by Professor Taiwo Osipitan, SAN, is urging the appellate court to dismiss the amended statement of claim of the petitioner on the grounds that the award of damages of N2million is gratuitous as the petitioner did not claim the said amount or any sum of money from the company.

Meanwhile, Adebo and his firm in a counter affidavit in opposition to the application filed by both NBC and NAFDAC before the lower court to stay the execution of the judgment delivered by the court, is urging the court to dismiss the two applications on the grounds that the safety of lives of the people of Nigeria is of paramount consideration to the honourable court and hence the need to provide all possible equitable remedy to safeguard the public.

The Daily Times recalls that a Lagos High Court, Ikeja in a judgement delivered by Justice Adedayo Oyebanji ordered NAFDAC to forthwith mandate the NBC to include on all bottles of Fanta and Sprite soft drinks manufactured by the company a written warning that the content of the said bottles of Fanta and Sprite soft drinks cannot be taken with Vitamin C as same becomes poisonous if taken with vitamin C.

The court also declared that NAFDAC has failed the citizens of this great nation by its certification as satisfactory for human consumption, products in which in the United Kingdom failed sample test for human consumption and which become poisonous in the presence of Ascorbic Acid ordinarily known as Vitamin C, which can be freely taken by the unsuspecting public with the Fanta and Sprite. The court also awarded a cost of N2million against NAFDAC.

When the consignment of the soft drinks arrived in United Kingdom, fundamental health related matters were raised on the contents and composition of the Fanta and Sprite products by the United Kingdom Health Authorities, specifically the Stockport Metropolitan Borough Council’s Trading Standard Department of Environment and Economy Directorate.

The findings of the said United Kingdom were also corroborated by the Coca-Cola European Union and the products were found to have excessive levels of “Sunset Yellow and Benzoic Acid “which are unsafe for human consumption.

Due to the irregularities and harmful content of the soft drinks which can cause cancer to the consumer, the claimants could not sell the Fanta and Sprite products resulting in appreciable losses, as they were certified unsuitable for consumption and were seized and destroyed by the United Kingdom health authorities.

The claimants alleged further that NAFDAC failed to carry out necessary tests to determine if the soft drinks were safe for human consumption.

The NBC also denied that it was negligent in the manufacturing of its products as alleged as stringent quality control procedures were adopted in its production process to ensure that its products are safe for consumption of the final user.

The bottling company further denied that the damages alleged by the claimants were occasioned by its negligence or any fault from the company as the level of the chemical components in its soft drinks is safe for consumption in Nigeria.

In her judgement, Justice Oyebanji said: “It is imperative to state that the knowledge of the NBC that the products were to be exported is immaterial to its being fit for human consumption. The court is in absolute agreement with the learned counsel for the claimants that soft drinks manufactured by NBC ought to be fit for human consumption irrespective of colour or creed.

“It is manifest that NAFDAC has been grossly irresponsible in its regulatory duties to the consumers of Fanta and Sprite manufactured by Nigeria bottling company. In my respective view, NAFDAC has failed the citizens of this great nation by its certification as satisfactory for human consumption, products which in the United Kingdom failed sample test for human consumption and which become poisonous in the presence of Ascorbic Acid ordinarily known as Vitamin C, which can be freely taken by the unsuspecting public with the company’s Fanta or Sprite. As earlier stated, the court is in absolute agreement with the learned counsel for the Claimants that consumable products ought to be fit for human consumption irrespective of race, colour or creed.

“By its certification as satisfactory, Fanta and Sprite products manufactured by NBC without any written warning on the products that it cannot be taken with Vitamin C, NAFDAC would have by its grossly irresponsible and unacceptable action caused great harm to the health of unsuspecting public, the court in the light of the damming evidence before it showing that NAFDAC has failed to live up to expectation, cannot close its eyes to the grievous implication of allowing the status quo to continue as it is.

For the reasons herein adumbrated in this judgement, the court hereby orders as follows:

That NAFDAC shall forthwith mandate NBC to, within 90 days hereof, include on all the bottles of Fanta and Sprite soft drinks manufactured by the company, a written warning that the content of the said bottles of Fanta and Sprite soft drinks cannot be taken with Vitamin C as same becomes poisonous if taken with Vitamin C.

But findings by The Daily Times showed that NBC has not complied with the said directive as none of the alleged soft drinks- Fanta and Sprite has such warning label on it. The court had ordered Coca Cola to comply not later than June, 2017.

There has been widespread public fear that Fanta and Sprite produced by NBC Nigeria failed the UK benzoic test and therefore harmful to consumers.

Though the matter is not over yet as NBC and NADFDAC have appealed the judgment respectively, one would have expected that since this has to do with human life, the beverage company would have obeyed the court order by now pending when the appeal is heard and determined.

The soft drinks giant said the claims were inaccurate and unsupported by science.

But Nigerians are worried why the products that we consume are considered substandard in Europe.

More so that the judge also said that soft drinks manufactured by NBC ought to be fit for human consumption irrespective of colour or creed.

However, both Benzoic Acid and Ascorbic Acid (Vitamin C) are ingredients approved by international food safety regulators and used in many food and beverage products around the world.

These ingredients are also used in combination in some products within levels which may differ from one country to another as approved by the respective national food and drug regulators in line with the range prescribed by CODEX, the joint intergovernmental body responsible for harmonizing international food standards.

But the concern is that benzoic acid according to European and American drug agencies, can form the carcinogen benzene when combined with ascorbic acid (Vitamin C).

Benzoic acid, according to findings, is a white, crystalline powder with a faint, non-offensive odour. Though it serves as preservative, if used excessively causes cancer and has been linked to asthma problems and increased levels of hyperactivity in children.

It is also used in the manufacture of a wide variety of products such as perfumes, dyes, topical medications and insect repellents.

Sunset yellow also used in the production of Coca-Cola products is said to be a dye that can be found in foods like

orange juice, ice cream, canned fish, cheese, jellies, soft drinks and many medicines. But some say it can also be dangerous for human health as it causes urticaria, rhinitis, allergies, hyperactivity, abdominal pain, nausea, and vomiting in some individuals.

Meanwhile, the Federal Government has warned that Fanta and Sprite should not be used to take any medicine.

Minister of Health, Prof. Isaac Adewole, said the two beverages, manufactured by NBC are safe for human consumption but cannot be taken with any drug.

The judgement was on a suit filed by a Lagos-based businessman, Emmanuel Adebo, and his company, Fijabi Adebo Holdings Limited, against NBC Plc and NAFDAC.