case analysis - fijabi v nbc

19 Mar Case Analysis – Fijabi Holdings v Nigerian Bottling Company

Facts

 

In 2007, a company called Fijabi Adebo Holdings Ltd (Fijabi) decided that they wanted to buy made in Nigeria Coca-Cola products and export them to the UK. They proceeded to buy large quantities of Coca-Cola, Fanta Orange, Fanta Lemon, Fanta Pineapple, Sprite, and Soda Water, and then exported them to the UK.

Upon arrival in the UK, the Fanta and Sprite drinks where destroyed by the UK authorities on the basis that after tests on the drinks, they discovered that the Benzonic acid and sunset yellow content exceeded the recommended level for safe human consumption.

Fijabi therefore sued the Nigerian Bottling Company (NBC) and the National Agency for Food and Drug Administration and Control (NAFDAC). He sued NBC for negligently selling the drinks which he alleged were unsafe for human consumption (based on the report of the UK authorities), and sued NAFDAC for not carrying out their regulatory duties properly and allowing NBC to sell drinks which he alleged were unsafe for human consumption.

NBC filed a response, arguing that the Benzoic acid in the drinks are well within the prescribed limit set by NAFDAC, and that there is no national limit set for sunset yellow. Therefore, they did not breach their duty of care to their customers, and NAFDAC had certified this to be the case.

NAFDAC on its part failed to file a response.

 

Case

 

During the case, Fijabi admitted that nowhere in the letters from the regulatory agency in the UK was it stated that the excessive levels of the chemicals in the products cause cancer. That conclusion was made because he was ‘told’ by an officer there.

Also, the Head of the Central Laboratory of NAFDAC – Abiodun Adeola Falana was subpoenaed to give testimony. A subpoena is a document ordering an individual to appear as a witness in a case. Abiodun Adeola Falana informed the court during cross-examination that Benzoic acid is a derivative of Sodium Benzoate which at a level is no longer poisonous but becomes poisonous in the presence of Ascorbic acid  Vitamin C

 

Judgment

 

The courts decided that NBC did not sell the drinks negligently, as they met the requirements as set by NAFDAC, and that is the only standard they were meant to meet, and not one set by the authorities in the UK. Further, it was Fijabi’s duty to ensure that the drinks they were exporting met standards set in the destination country, which they did not in this case, and so it was not NBC’s fault that the goods were destroyed in the UK, it was Fijabi’s fault.

The court decided that NAFDAC had failed in their regulatory duty. The judge particularly said – ‘…it is manifest that (NAFDAC) has been grossly irresponsible in its regulatory duties  to the consumers of Fanta and Sprite…(they) have 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….consumable products ought to be fit for human consumption irrespective of race, colour or creed. Inspite of the fact that different countries have different limits for additives. The applicable limit for additives in Nigeria must be safe for human consumption when taken with other consumables then there must be a clear warning to consumers on the dangerous effect of taking the products with other consumables’.

The court therefore ordered NAFDAC to mandate the NBC to include on all the bottles of Fanta and Sprite manufactured by it,  a written warning that the contents of the bottles cannot be taken with Vitamin C as they become poisonous if taken with Vitamin C.

The court then ordered NAFDAC to pay to Fijabi the costs of filing the suit – N2million

 

 

Our Analysis

 

Firstly, we at LawPàdí want to commend Fijabi for filing this lawsuit and for carrying on with it for almost 9 years. Their perseverance is highly commendable.

From a legal perspective, NAFDAC has a job to certify the safety of food and drinks in Nigeria, part of that job is setting levels for chemical products. They set these levels based on guidance from the World Health Organisation and other international bodies. In this case, the limits set by NAFDAC are well within the suggested levels by the WHO, and therefore NAFDAC has done their job. Next, NBC is meant to produce goods which adhere to the standards set by NAFDAC, and in this case, they did just that.

So, if from a legal perspective, everything is covered, then why did the court order NAFDAC to tell NBC to include written warnings on the drinks, and why did it order costs of N2million against NAFDAC?

The court seemed to be saying that there was no justifiable reason for the disparity between the levels set by NAFDAC and the levels set by the UK Government. Therefore, if the UK Government felt the levels of those chemicals were high then maybe NAFDAC wasn’t doing its job properly.

In ordering NAFDAC to mandate NBC to put written warnings on the bottles of Fanta etc., the court seemed to be acting based on the oral evidence given by the NAFDAC official who was cross-examined, there were no lab reports to confirm at what level and with what concentration Vitamin C and Benzoic acid would become dangerous to a consumer.

Now to the big question – is Fanta Orange (and the other drinks which have Benzoic acid) dangerous to the health of Nigerians? The simple answer is this – based on the information before the courts there was no documentary evidence to support that. In fact the Federal Ministry of Health has  issued this statement, confirming the safety of the drinks.

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