- (1.) B. C. Chirania, Addl. Standing Counsel, with Ravi Chirania, for Union of India, for Respondents Hon'ble SINGH, J. The petitioners' claim that the carbonated drinks manufactured by Pepsico and Coca-Cola are contaminated and laced with pesticides, which are dangerous to human life. The petitioners seek a ban on their sale and use by the public at large. It is also the case of the petitioners that the drinks manufactured by these companies contain suspended impurities. In order to substantiate their point they had presented before us few bottles of soft drinks alleged to have been manufactured by Pepsico and Coca-Cola, which on ocular examination show presence of foreign material. But that we need to ignore because the issue cannot be conclusively determined in the absence of the evidence of an expert. It has been argued in these petitions by the learned counsel for the petitioners that the manufactures ought to make a complete and full disclosure of the composition and contents of their products including the presence, if any, of the pesticides and chemicals therein, so that the consumers can make an informed choice before buying, selecting and consuming the products.
(2.) THE learned counsel for the respondent companies submitted that the companies are not required under law, to disclose the presence or absence of pesticides in their products. It is also submitted that the products contain 90% water, 9. 0% sugar and 0. 1% preservatives. According to them in case water contains pesticides, they cannot be blamed for it. It is claimed and asserted by them that the water used for manufacturing the soft drinks by them is subjected to reverse osmosis process and certain other scientific procedures. This is being done to purify the water. It was also argued that their products meet the European standards of quality and purity. They submitted that it is not relevant to divulge information with regard to the presence or absence of DDT from the beverages. They wondered as to how the information would be relevant or material or of any significance to the consumers. Both the counsel for Coca-Cola and Pepsico submitted that small traces of DDT and other pesticides are not harmful to the health of the consumers. It was contended on behalf of Pepsico that the water used for manufacturing carbonated beverages by the company in the State of Rajasthan is drawn from deep wells with a view to obviate mixing of any undesirable element or chemical in it. We have considered the submissions of the learned counsel for the parties. On August 5, 2003, the Director, Centre for Science and Environment (for short `cse') an NGO based in Delhi, made public a report of the analysis of pesticide residues in soft drinks. Both electronic and print media covered this report prominently. In the report it was stated that CSE found pesticide residues in the samples of twelves soft drink brands procured by it from open market in Delhi. As per the report of the CSE, thirty-six samples of twelve different brands of the aforesaid soft drinks were tested, from which it was concluded as follows:- ``out of the 16 organochlorines, 12 organophosphorus and 4 synthetic pyrethroides analysed soft drink samples. Lindane, DDT and its metabolites, Malathion and Chlorpyrifos were most commonly found in 36 soft drink samples tested. Lindane (Hexachlorocyclohexane), a potent carcinogen was detected in 100% of the samples analysed. The average concentration detected in all the samples were 0. 0021 mg/l, which is 21 times higher than the EEC limit for individual pesticides. Lindane is the most toxic of all the isomers of HCH and has powerful insecticidal properties and is used for the control of insects of field crops and pests in houses. DDT (dichlorodiphenyltrichloroethane) was detected in 81% of the samples analysed. The average concentration of total DDT (DDT+ddd+dde) in all the samples was 0. 0015 mg/l, which is 15 times higher tan the EEC limit. Chlorpyrifos, a suspected neuroterratogen was detected in 100% of the 36 samples analysed with an average concentration of 0. 0042 mg/l of chlorpyrifos which is 42 times higher than the prescribed EEC limit. Malathion was present in 97% of the samples analysed with an average concentration of malathion (0. 0087 mg/l) which is 87 times higher than the EEC limit. Malathion was present in all samples except one sample of Sprite (BN 787 ). Synthetic Pyrethrodie-Out of 4 synthetic pesticides- cypermethrin, deltamethrin, fenavalerate and permethrin analysed, none was detected in any of the samples. The average concentration of total organochlorines was 0. 0038 mg/l, that of total organophosphorus was 0. 0219 mg/l and the level of total pesticides detected was 0. 0168 mg/l, which is 34 times higher than the total EEC limit. The variation in different brands could be due to the different ingredients present in different brands, composition and ph. No pesticide residues were detected in the Coca-Cola and Pepsi samples from USA manufactured by the same multinationals. '' Therefore, it is apparent that the samples of the said soft drinks contained pesticides. It is also significant that in the Coca-Cola and Pepsi samples received from USA, no pesticide residues were detected though they were manufactured by the same multinationals. The aforesaid report refers to the baneful effect of the DDT and its metabolites. The effect, as noted in the report, is as follows:- ``ddt (dichlorodiphenyltrichloroethane) and its metabolites were detected in 81% of the soft drink samples. They have been linked to altered sexual development in various species, to a decrease semen quality and to increased risk of breast cancer in women. (Sharps RM. Et. a, 1993; Carlsen E et a, 1992; Stone R et a, 1994 ). DDT and its metabolites have also been shown to mimic estrogen, binding to and activating the estrogen receptors (ER's) thereby often producing estrogen like effects (Jaga K, 2000 ). They may alter a number of harmful estrogen-regulated health effects in humans such as breast cancer (Coceo P et a, 2002), spontaneous abortior (Korick sa et a', 2001) reduced bone mineral density (Bread et a', 2000 ). DDT and its metabolites because of their lipophilicits and long half lives accumulate in the food chain. Their weak oestrogenic effects may result from altered metabolism and competition for binding to cytosolid and nuclear receptors of steroid hormones. (Levine R et a, 1991 ). DDT reportedly induces cancer in animals, mimics estrogen activity, induces antiandrogen effects, and impairs Natural Killer (NK) cells and T lymphocyte responses. Occupational exposure to insecticides resulted in frequent infections and immunological abnormalities. DDT, dichlorodiphenyldichloroethylene (DDE), and dicholorodiphenyldichloroethane (DDD) in blood levels have been associated with several immune parameters in patients occupationally exposed to insecticides. They majority of 49 patients who worked as farmers or farmhands in the former German Democratic Republic, were contaminated with more than I chemical- most commonly DDE, PCBs, and HCB and 80% of them had been exposed for more than 20 years (Daniel et a, 2002 ). Comparison of blood levels of HCB and total DDT in 159 women with breast cancer and 250 presumably healthy showed that mean levels of total DDT and HCB were significantly higher for breast cancer patients than for controls. No differences in serum levels of total DDT or HCB were found between estrogen receptor positive and estrogen receptor negative patients with breast cancer which implies that persistent pollutants may occur in higher concentration in blood samples from breast cancer patients from controls (Charlier C et a, 2003 ). There are mixture effects even when each mixture component is present at concentrations that individually produces insignificant effects. Lifetime treatment of mice with DDT induced liver tumors in a doze related manner and the tumors included overtly metastasizing hepatoblastomas (Hoyer AP et a, ' 1998 ). Main metabolites of DDT (pp' DDE and pp' DDD) are both carcinogenic. Exposure to DDE resulted in high incidence of liver tumors in both made and female mice. The combined exposure to DDE and DDD resulted in a marked increase and early appearance of liver tumors in both sexes (Turosov VS et a; 1973 ). Mixute of 4 organochlorines (op'ddt, pp' DDE 1-BHC and pp' DDT) acted together to produce proliferative effects in MCF-7 human breast cancer cells and the combined effect was additive (Gertrudis C et a 2001 ). A study suggests that exposure to a mixute of DDT, HCH and endosulfan and decreased fertility in males, an increase in birth defects and in neonatal deaths (Rupa DS, 1991 ). Detoxification processes both in humans and animals involve conversion of DDT to less toxic acetate; little is known about variations from person to person in these detoxification mechanisms, and even less about intermediate metabolism concerned. Regardless of detoxification mechanisms, DDT is stored cumulatively in body fat and excretion is extremely slow even after intake ceases (Smith Ml, 1946 ). ''
(3.) AFTER the report received by the Government of India, a Joint Parliamentary Committee was constituted to investigate the issue. The Joint Parliamentary Committee was set-up with the following terms of reference:- ``a. Whether the recent finds of the Centre for Science and Environment regarding pesticide residues in soft drinks are correct or not. b. To suggest criteria for evolving suitable safety standards for soft drinks, fruit juice and other beverages where water is the main constituent. '' The Joint Parliamentary Committee, on going into the matter, came to the conclusion that the findings of the CSE are correct with regard to the presence of pesticide residues in carbonated water in respect of three samples each of twelve brand products of Pepsico and Coca-cola analyzed by them. The conclusions and recommendations of the Joint Parliamentary Committee read as follows:- ``1. 89 As regards the first terms of reference of the Committee, the Committee would like to divide it in two components, the first one is the qualitative (detection and identification) aspect and the second is the quantitative one (estimation and confirmation ). So far as qualitative aspect is concerned, the Committee are of the view that the CSE findings are correct on the presence of pesticide residues in carbonated water in respect of the three samples each of 12 brand products of Pepsico and Coca-cola analyzed by them. CSE tested 36 samples for 16 organochlorine pesticides, 12 organo phosphorus pesticides and 4 synthetic pyethroids, which together constitute a list of 32 most commonly used pesticides in India. CSE detected the gamma isomer (Lindane) in all the 36 samples and three other isomers of hexachlorocyclohexane (commonly called HCH or BHC) in some of the samples at varying levels. DDT and its metabolites were detected in 29 out of 36 samples. Among the organo phosphorus ones, chlorpyrifos was detected in all the 36 samples in varying concentrations and malathion in 35 out of the 36 samples at different levels. None of the four synthetic pyrethroids was found in any of the 36 samples. 1. 90 The Committee have however, noted that 19 of the 36 samples came form one bottling unit in Jaipur, 15 from one bottling unit in Hapur Tehsil Ghaziabad, one from a bottling unit in Jodhpur and one from bottling unit in Mathura. 1. 91 CFL-CFTRI (Central Food Laboratory at Central Food Technological Research Institute, Mysore) and CFT, Kolkata (Central Food Laboratory, Kolkata) analyzed independently samples of the same 12 brands collected and sent to them by Directorate General of Health Services. Both laboratories also detected the presence of organochlorine and organophosphorus pesticide residues. The presence of pesticide residues, therefore, is a common scientific finding of all the three laboratories. The Committee would, therefore, conclude the CSE stands corroborated on its finding pesticide residues in the carbonated water. So far as non-detection of malathion by the two laboratories ins concerned, the Committee attribute the same to the variations in different batch numbers, manufacturing locations and also the dates of collection and analysis. The absence of Malathion on the Mysore and Kolkata analysis have been scientifically explained by CFTRI, GSMS method has been applied to confirm the absence of malathion, reinforced by spiking samples and analysis. The Committee also note that the presence of malathion was also reported by the laboratory under the Central Pollution Control Board and Shriram laboratory (Bangalore) and hence out of the five laboratories three had detected malathion in the samples tested by them. 1. 92 With regard to the quantitative aspect, the results of CSE on the one hand and CFL-CFTRI and CFL, Kolkata on the other vary widely. The Committee have no hesitation in admitting that as explained by different experts who deposed before the Committee, variations in an analytical research is a well known factor. It can arise due to host of other factors such as differences in (a) the manufacturing locations, (b) date of manufacture, (c) batch number of products, (d) temperature conditions of storage at the stocking place/retail end, (e) the laboratories due to the differences in the analytical techniques/procedures, (f) structural stability and (g) characteristics of the chemical molecule in question etc. In the instant case, there have undoubtedly been variations in the samples which had different batch numbers and also were manufactured at different locations. Though all the three laboratories have employed the same analytical procedure namely US Environmental Protection Agency Method 8081a for organochlorine and 8141a for organophosphorus pesticide, differences have been noticed in the way the procedure was performed as enumerated in Annexure X, with the result that the differences could be significant. 1. 93. Moreover, CFL of CFTRI was able to apply GC Mass spectrometry combination for confirmation of its results-the importance of which has been highlighted by a number of experts who appeared before the Committee. Besides, though CSE has reported the the concentration level of Pesticide identified in carbonated water was far in excess of the limit laid down in EU directives, however, the Committee are of the view the comparing residue level in any article of food on a percentage basis could have been avoided because EU norms were not adopted at that point of time in our country. The results of CFL, Mysore and CFL, Kolkata however come closer to each other in terms of the number of times the total pesticides level exceeded the EU limit, in the specific batches. For the results to be compared in the quantitative terms, all the three laboratories should have adopted the same protocol in the design, conduct and interpretation of results of the study. Besides, CFL-CFTRI and CFL Kolkata are among the four laboratories established under the Prevention of Food Adulteration Act, 1954 with a mandate to carry out the functions entrusted under the PFA Act, as amended and notified on 30 December, 2002. The broad jurisdiction of these four laboratories has been notified under the PFA Rules, 1955. These are, therefore, approved and authorized laboratories to conduct food analysis including beverages and packaged drinking water. In addition CFTRI under which CFL functions has been accredited by NABL for both chemical and biological testing. CFTRI is also an ISO/9000:2000 certified organization. On the other hand CSE has not cited any accreditation from NABL or certification from ISO (International Standards Organization) to support its analytical competence. This aspect was highlighted by several organizations in their evidence and presentations before the Committee particularly CII, FICCI, ICMR and CPCB. CFL, Kolkata also does not have laboratory and gives credence for data acceptance-a fact which has been recognized internationally also. 1. 94. The European Union in fact has a long list of guidelines and directive concerning the performance of analytical methods and interpretation of results. (Council Directive 96/23 EC ). The importance of adopting confirmatory methods for arriving at the authenticity of the results is equally important, since as per the EU Directive also confirmatory methods for organic residues or contaminants provide information on the chemical structure of the analyte. Consequently, methods based only on chromatographic analysis without the use of spectomertic detection are not suitable on their own for use as confirmatory methods. The fact however remains that such a test was not done by CSE. Moreover, it would have been appropriate if the evaluation of tests was conducted on the same samples by two or more laboratories in accordance with the predetermined conditions. The Committee note that although the pesticide residues were found no all the test reports with quantitative variations, however, while citing EU norms/limits for pesticides, the CSE adopted the USEPA method for analytical purposes. The Committee feel that CSE could have adopted the EU specified methodology to reach a final conclusion of pesticide residues and its follow up. 1. 95 Though the results of the Central Pollution Control Board which had conducted an independent testing through their laboratory, come closer to the findings of CFL-CFTRI and CFL, Kolkata, the percentage reported by Shriram laboratory which had tested only one sample each of Coca Cola and Pepsi is quite high. In view of the fact that these laboratories also did not test identical samples and the dates of manufacturing as well as locations are different, the quantitative results reported by them cannot be compared. 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 analyzed by them. The Committee also appreciate the whistle blowing act of CSE in alerting the nation to an issue with major implications to food safety, policy formulation, regulation framework and human and environmental health. '' Thus, there is no manner of doubt that the analysis by the CSE and by other laboratories show the presence of pesticides in the samples of branded products of Pepsico and Coca-Cola. ;