'May Cause Harm To Those Unfit To Consume': Delhi High Court Declines Interim Relief To Makers Of Drinks With 'ORS' Labelling

The Delhi High Court on Wednesday refused to pass interim orders permitting a company, JNTL Consumer Health India Pvt Ltd., to dispose of its existing stock of electrolyte beverages sold under the name ORSL. 

The said beverages were banned by the FSSAI to be labelled as Oral Rehydration Salts (ORS).

A division bench of Chief Justice DK Upadhyay and Justice Tushar Rao Gedela said as it is a case of misbranding, it cannot allow the products to remain in market as the “matter relates to public health concern.”

“The difficulty is that in rural areas, if some child is suffering from diarrhoea, what ordinarily happens is that they buy ORS to balance electrolytes. In your product, you are also writing electrolyte; there is a possibility of misleading. It is not harmful to someone who is fit to take it but to those who are unfit to take it,” it said.

The Bench issued notice on the company's plea challenging FSSAI'/ orders passed on October 14 and 15. Vide the said orders, the authority had withdrawn permissions for food-and-beverage companies to use the word 'ORS' in their labelling, unless they met the standard medical formulation.

For context, a single bench had upheld the FSSAI order banning such products and observed, on merits, that such misleading products have the potential to cause adverse health effects. This was in the plea filed by Dr. Reddy's Laboratories.

The Counsel representing the company claimed that they had been operating under the present names for almost 20 years and that the name was registered with the Controller of Patents, GIs and Trademarks (CGPDTM). 

It was stated that although the manufacture had been stopped, the concern was for the goods in the retail channel.

It was submitted that the manufacturers were not making any claims that their drinks were based on the WHO-approved formula for ORS and that this had been displayed on their packaging, and told to the consumers as well.

It was submitted that regular consumers would not be affected by consuming their drink, and that only those who were in need of ORS for issues such as diarrhoea would be harmed from consuming drinks 

The bench orally remarked, "ORS has brought a revolution to a poor country like ours. The rate of deaths of children has gone down in these areas. Earlier ,UNICEF would distribute these for free...don't take me amiss but any product being sold in the nomenclature of ORS or ORS-L, that is perhaps...it is not whether it is harmful, but it is misbranding."

The court noted that in such cases to deal with public health, the single bench had also earlier declined interim relief in petitions by Dr Reddy's Laboratories. It was stated that observations against public health had already been made by the single bench. 

"Had it been sold on prescription, it would be different. It is not a scheduled drug, therefore if it is sold in the market it can cause more harm," the court noted.

Senior Counsel Mukul Rohatgi submitted that this was a rehydration-energy drink while ORS was only used for diarrhoea. 

It was submitted that the manufacture was stopped, but 50% of the goods were in the market, and 50% were in stock. It was submitted that the drink was not adulterated and that the company would be willing to rebrand its product, but ₹100 crore worth of stock could not be destroyed unfairly.

Thus it was prayed that the court allow the rebranding and exhaust the available stock. 

However, the court rejected the plea seeking an interim order.