A Lagos High Court has declared that the National Agency For Food and Drug Administration and Control, NAFDAC, was negligent in its duties and failed Nigerian consumers for allowing manufacture and sale of soft drinks that is unfit for human consumption.
The judgment follows a suit filed by a Lagos-based businessman, Emmanuel Adebo, and his company, Fijabi Adebo Holdings Limited, against the Nigerian Bottling Company, NBC Plc and NAFDAC.
Adebo, in the suit, claimed that in March 2007, he purchased large quantities of Coca-Cola, Fanta Orange, Sprite, Fanta Lemon, Fanta Pineapple and Soda Water from NBC for export and subsequent retail in the United Kingdom.
But when the consignment arrived, UK health authorities, precisely the Stockport Metropolitan Borough Council’s Trading Standard and the Department of Environment and Economy Directorate, raised fundamental health issues on the contents and composition of Fanta and Sprite.
Their findings were also corroborated by other agencies in European Union countries, which found the products to contain excessive levels of sunset yellow and benzoic acid, which are known to be carcinogenic.
On account of the irregularities and carcinogenic substances present in the drinks, Adebo said his company could not sell the Fanta and Sprite as the products were seized and destroyed by the UK health authorities, causing huge losses for the company.
He urged the court to declare that NBC was negligent to its consumers by bottling Fanta and Sprite with excessive levels of benzoic acid and sunset additives.
The claimants equally alleged that NAFDAC did not carry out requisite tests to determine the safety of the drinks for human consumption.
Adebo said that his company is registered as exporters with the Nigerian Export Promotion Council, and as such could legally export NBC products to any part of the world.
He also maintained that the NBC knew that the products he purchased were meant for export; a claim the bottling company denied.
Adebo and his company sought the sum of N15,119,619.37 as special damages and a refund of the N1,622,000 that NBC admitted receiving for the products.
The court held that NAFDAC failed Nigerians by declaring, as fit for human consumption, products discovered by tests in the United Kingdom as turning poisonous when mixed with ascorbic acid (popularly known as Vitamin C.
Justice Adedayo Oyebanji also awarded a cost of N2 million against NAFDAC for failing to live up to its responsibilities.
In its defense, counsel to the NBC, T. O. Busari, admitted that the company supplied the products, but insisted that they are meant for local distribution and consumption, not for export.
Busari noted that Coca-Cola is manufactured and bottled by various Coca-Cola franchise holders in most countries of the world, including the United Kingdom.
He denied that the NBC was negligent, saying that it has stringent quality control procedures to ensure that its products are safe for end-user consumption.
The bottling company further said that the levels of the chemical components in its soft drinks are safe for consumption in Nigeria and that the claimants are not entitled to the recovery of damages arising from their illegal exportation of products meant for local distribution.
NAFDAC on its part did not file any defense.
In her judgment, Justice Oyebanji held that “the knowledge of the Nigeria Bottling Company that the products were to be exported is immaterial to its being fit for human consumption”, adding that “soft drinks manufactured by Nigeria bottling company ought to be fit for human consumption irrespective of color or creed.”
She also ruled 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.”
The trial judge also ordered NAFDAC to “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 nine 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,” Justice Oyebanji ruled.