A Lagos High Court, Igbosere, Lagos State, south west Nigeria
has ordered the National Agency For Food, Drug Administration and Control
(NAFDAC) to forthwith mandate Nigeria Bottling Company PLC, manufacturers of
Fanta and Sprite soft drinks, to include a written warning that the content of
the bottles cannot be taken with Vitamin C.
In a judgment delivered by Justice Adedayo Oyebanji, the court
warned that taking Fanta and Sprite with Vitamin C is poisonous.
The court also declared that NAFDAC has failed the citizens of
Nigeria by its certification as satisfactory for human consumption, products
which in the United Kingdom failed sample test for human consumption and which
became poisonous in the presence of Ascorbic Acid ordinarily known as Vitamin
C, which can be freely taken by unsuspecting members of the public with Fanta
and Sprite.
The court also awarded a cost of N2 million against NAFDAC.
The judgment of the court was sequel to a suit filed by a Lagos
businessman, Dr Emmanuel Fijabi Adebo and his company, Fijabi Adebo Holdings
Limited against the Nigeria Bottling Company Plc and the National Agency for
Food and Drug Administration and Control (NAFDAC).
The plaintiffs urged the court to declare that the Nigeria
Bottling Company was negligent and breached the duty of care owed to their
valued customers and consumers in the production of contaminated Fanta and
Sprite soft drinks with excessive “benzoic acid and sunset” addictive.
Dr Fijabi also urged the court to direct NAFDAC to conduct and
carry out routine laboratory tests of all the soft drinks and allied products
of the company to ensure and guarantee the safety of the consumable products,
produced from the Nigeria Bottling Company factory.
In an amended statement of claim filed before the court by a
Lagos lawyer, Barrister Abiodun Onidare, on behalf of the claimants, he alleged
that sometime in March, 2007 Fijabi Adebo Holdings company purchased from
Nigeria Bottling Company large quantities of Coca-Cola, Fanta Orange, Sprite,
Fanta Lemon, Fanta Pineapple and Soda Water for export to the United Kingdom
for retail purposes and supply to their customers in the United Kingdom.
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 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 claimants averred that as a registered exporter with the
Nigerian Export Promotion Council, they could lawfully export the products of
Nigeria Bottling Company to any part of the world. Infact, Nigeria Bottling
Company was aware that the products they purchased were meant for export.
Consequently, apart from other reliefs, the claimants demanded
N15,119,619.37 as special damages and N1,622,000 being the money admittedly
received from the claimants.
However, Nigeria Bottling Company in its amended statement of
defence filed before the court by Mr. T. O.Busari admitted supplying the
products but contended that the product manufactured by the company were meant
for local distribution and consumption as the company does not manufacture its
products for export, as Coca-Cola brand of soft drinks is manufactured and
bottled by various Coca-Cola franchise holders in most countries of the world,
including the United Kingdom.
The company denied that it was negligent in the manufacturing of
its products as alleged, stressing that stringent quality control procedures
were adopted in its production process to ensure that its products are safe for
consumption of the final user.
The company denied that the damages alleged by the claimants was
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.
Nigeria Bottling Company contended that the claimants claims are
speculative, frivolous and vexatious and should be dismissed with substantial
costs.
NAFDAC did not filed any defence.
In proving his case, Dr Fijabi Adebo testified for himself while
being led in evidence by Mr Abiodun Onidare and tendered 12 exhibits, while the
Sales Operation Manager, Micheal Nwosu China and the head of Central
Laboratory, Abiodun Adeola Falana, both of Nigeria Bottling Company testified
on behalf of the company and also tendered 12 exhibit.
In her judgment, Justice Oyebanji said: “It is imperative to
state that the knowledge of the Nigeria Bottling Company 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 Nigeria Bottling Company ought to be fit for human
consumption irrespective of color 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 Nigeria bottling company 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 the unsuspecting public.
”The court, in the light of the damming evidence before it
showing that NAFDAC has failed to live up to expectations, 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 Nigeria Bottling Company
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.
”In consideration of the fact that this case was filed in 2008
and that it has been in court for 9 years, costs of N2 million is awarded
against NAFDAC. Interest shall be paid on the costs awarded at the rate of 10%
per annum until liquidation of the said sum.”
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