A spark that surfaced recently on social media platforms has kindled a new contentious discussion in India. Our childhood favourite 'Bournvita' is being examined for its claim of being a 'health drink' for youngsters.

The row surfaced when, in April 2023, Revant Himatsingka, who was holding a prominent finance job in the US, sacrificed his lucrative salary and returned to India to spearhead a ‘nutrition revolution’. Revant, who had around 1000 followers then, uploaded a video to his social media handle targeting Bournvita and claiming that the ‘health drink’ contains dangerously excessive amounts of sugar and other potentially hazardous ingredients, which contradicts its advertised benefits of fostering child growth and development. The video he uploaded gained a viral status, getting more than 12 million views across different social media platforms. This shook the earth of all the leading ‘health drink' brands in India, which, in turn, elicited legal notice in favour of Revant from Mondelez India, the parent company of Bournvita, requesting the removal of the video.

The Viral Video and the Allegations:

Revant Himatsingka, aka FoodPharmer, who finished a nutrition degree from US in 2023, realised the importance and significance of the labels on food packaging. He made a video and surfaced it online in which he claimed that the product had a significant amount of sugar, cocoa solids, and a caramel colouring agent (150 C) that may have the ability to induce cancer. He stated that his goal while creating these videos is to provide people with the necessary information to make educated decisions about the packaged food that they consume.

Revant also targeted Bournvita’s marketing slogan, “Tayyari Jeet Ki", which effectively translates to "Preparation for Victory”, contending that rather than equipping youngsters for triumph, the beverage was instead predisposing them to diabetes and cancer as a result of its elevated sugar concentration.

Mondelez India’s Reply:

The prominent candy conglomerate Mondelez India, which produces popular brands like Cadbury Dairy Milk, Oreo, and Gems, wasted no time in responding to the allegations. The corporation dismissed his assertions/claims, described the video as 'unscientific', and charged the influencer of deliberately distorting data and making baseless negative remarks, thereby negatively affecting the company's reputation. Mondelez India also defended their stance by adding that the formulation and ingredients of Bournvita are prepared by a team of nutritionists and food experts, and hence, the allegations hold no ground.

Mondelez India further specified that each 20-gram portion of Bournvita has 7.5 grams of additional sugar, about equivalent to one and a half teaspoons. This amount, Mondelez India says, is far lower than the recommended guidelines for the daily sugar intake of youngsters. Denying the claims made by Revant, Mondelez India stated that the caramel colouring agent (150 C) used in Bournvita is well within the acceptable limits set by the regulatory requirements. The conglomerate had also assured that all the ingredients that have been used in Bournvita are safe and have been permitted for consumption.

The food industry giant also issued a legal notice to the influencer and asked him to respond within 24 hours. The influencer, having been given no choice, succumbed to the pressure the conglomerate put on him and deleted the video, reasoning that since he had left his job and didn’t have any kind of legal backing, he could not afford to go up against one of the largest players in the food industry.

The intervention and Legal Notice issued by the National Commission for Protection of Child Rights (NCPCR):

Revant’s efforts, though, did not go in vain. Despite being forced to delete the video, The National Commission for Protection of Child Rights (NCPCR), a statutory authority established under the Commissions for Protection of Child Rights (CPCR) Act, 2005, had already taken cognizance of the issue. The commission issued a formal legal notice to Mondelez India, demanding the prompt and immediate removal of all the ‘deceptive’ ads., packaging and labelling associated with Bournvita within a period of 7 days.

This warning and notice issued by the NCPCR highlighted that the product's packaging, labelling, promotional, and presentational claims were not only deceptive but also provided consumers with inaccurate information about the ingredients used in the Bournvita 'health drink'.

The commission further clarified that Mondelez India's product was deemed deceptive to buyers because of its packaging and advertising.

The 'Health Drink' Advisory and E-Commerce Implications:

The Ministry of Commerce and Industry issued a directive to all e-commerce businesses, directing them to stop categorizing drinks and beverages as 'health drinks' on their platforms. This critical development came to light after the investigations made by the NCPCR in this regard. This decision was made keeping in view that the Food Safety and Standards (FSS) Act, 2006, rules and regulations do not provide a legal definition for the term ‘health drink’.

‘Energy Drink’ under FSS Act, 2006:

The Food Safety and Standards (FSS) Act 2016 establishes a Food Category System (FCS) under Appendix-A of the FSS (Food Product Standards and Food Additives) Regulations 2011. This system classifies food items into broad categories.

One such category is "14.0 Beverages, excluding dairy products," which includes "14.1.4. Water-based flavoured drinks, including sports, energy or electrolyte drinks, and articulated drinks." This category is further subdivided into:

1. carbonated water-based flavoured drinks,
2. non-carbonated water-based flavoured drinks (including punches and Ades), and
3. concentrates (liquid or solid) for water-based flavoured drinks.

Products falling under this category can be sold as "Energy drinks." The standards for these energy drinks are specified in sub-regulation 2.10.6 (2) of the FSS (Food Product Standards and Food Additives) Regulations 2011. This regulatory framework provides guidelines for the classification, labelling, and standards of water-based flavoured drinks, including energy drinks, ensuring consumer safety and transparency in the food industry.

Following the recommendation by the Ministry of Commerce and Industry, the Commission (NCPCR)conducted an investigation under Section 14 of the Commission for the Protection of the Child Rights (CPCR) Act, 2005, and determined that neither the Food Safety and Standards Authority of India(FSSAI) nor Mondelez India Food Pvt. Ltd. had legally classified any beverages as 'health drink'. As a result, The FSSAI, in its RCD-15001/12/2023-Regulatory-FSSAI-Part(1), issued a substantial advisory to all proprietors of e-commerce food businesses on March 28, 2024 (no specific brand was mentioned). This advisory drew attention to the problem of e-commerce platforms marketing products licensed under 'Proprietary Food' with the closest proximity to dairy, cereal, or malt-based beverage mixtures as 'energy drinks' or 'health drinks'. This deceptive practice's exposure highlighted the potential damage it might inflict on consumers' perceptions of health.

The Bournvita case has highlighted the need for increased oversight and openness from regulators in the food and drink industry, particularly on product labels and advertising claims. Concerns about misleading advertising and consumer deception have prompted discussions about this subject.

Regulatory Scrutiny and Industry Impact:

Understanding the issue, the FSSAI acknowledged that it has considered various media reports and online discussions about health claims made by the Food Business Operators (FBOs). The regulatory body has stressed that it is responsible for protecting consumers and promoting fair trade by taking action against FBOs that make deceptive statements about food items. A specialized committee that was established by the Food Safety and Standards Authority of India is responsible for monitoring advertising claims that are made by food business operators on various platforms, such as social media and e-commerce. As the level of concern over misleading advertising of food products continues to rise, this action has been taken to guarantee compliance with legislation.

Conclusion:

This incident highlights the importance of proactive regulatory actions to safeguard consumer interests. FSSAI's prompt response to NCPCR's concerns exemplifies a commitment to protecting children's well-being while also serving as a consumer protection measure. NCPCR's commendable efforts have initiated a movement to uphold consumer rights. Moreover, it raises awareness about critically evaluating marketing claims and making informed choices based on accurate information. Consumers must be vigilant and not solely rely on labels or advertisements. This case underscores the ongoing challenges in regulating the food industry and ensuring consumer protection. It emphasizes the need for continuous monitoring, transparent regulations, and active enforcement to create a fair marketplace. With packaged products being an integral part of life, consumer caution through label reading and primary research is crucial to avoid being misled. Small steps by consumers can catalyze significant positive changes.

Author: Associate Partner, Mr Aamir Zafar Khan