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OPINION: Coca-Cola and NAFDAC as Public Enemies

By Emmanuel Onwubiko

Three years ago, the Consumer Protection Council (CPC) took on the Nigerian Bottling Company Plc, the makers of Coca Cola for breach of public hygiene in the preparations of their products which are sold to Nigerians.

The Consumer Protection Council went as far as obtaining the authorization of the Federal Attorney General and Minister of Justice to use the instrumentality of litigation to compel the company to comply with the regulations and standards as they relate to their activities and products.

But midway into the public spat, both the Nigerian bottling company plc. and the hierarchy of the Consumer Protection Council headed by Mrs. Dupe Atoki settled their difference even as the consumers of these products by the Nigerian bottling company were abandoned to their cruel fate of being exposed to suspected poisonous substances which they buy as soft drinks from every nook and cranny of Nigeria.

Whilst the Nigeria bottling company and the Consumer Protection Council made up their differences, little did most people realize that in a court room somewhere in Lagos state, a courageous Nigerian had dragged the Nigerian bottling company to the legal institution over serious breach to public safety.

This litigant also joined the National Agency for food and Drugs known as NAFDAC as a necessary party for its abysmal failure to regulate properly and check the infiltration of the Nigerian market of poisonous soft drinks.

That brave citizen known as Dr. Emmanuel Fijabi Adebo and his company, Fijabi Adebo Holding limited have successfully convinced the Lagos High Court to rule that the Nigerian bottling company was negligent and had subsequently breached the duty of care owed to their valued customers and consumers in the production of contaminated Fanta and Sprite soft drinks with excessive “Benzoic acid and sunset “addictive”.

Angered by the legendary negligence of NAFDAC to conduct and carry out routine laboratory test of all the soft drinks and allied products of the company to ensure and guarantee the safety of the consumable products, produced from Nigerian bottling company factory, the Plaintiff asked for the severest of legal sanctions against this negligent government agent- NAFDAC.

In an amended statement of claim filed before the court by a Lagos lawyer, Mr. Abiodun Onidare, on behalf of the claimants, he alleged that sometime in March, 2007 Fijabi Adebo Holdings company purchased from Nigeria Bottling Company large quantities of Coca-Cola, Fanta Orange, Sprite, Fanta Lemon, Fanta Pineapple and Soda Water for export to the United Kingdom for retail purposes and supply to their customers in the United Kingdom.

When the consignment of the soft drinks arrived in United Kingdom, fundamental health related matters were raised on the contents and composition of the Fanta and Sprite products by the United Kingdom Health Authorities, specifically the Stockport Metropolitan Borough Council’s Trading Standard Department of Environment and Economy Directorate.

The findings of the said United Kingdom were also corroborated by the Coca-Cola European Union and products were found to have excessive levels of “Sunset Yellow and Benzoic Acid “which are unsafe for human consumption.

Due to the irregularities and harmful content of the soft drinks which can cause cancer to the consumer, the claimants could not sell the Fanta and Sprite products resulting in appreciable losses, as they were certified unsuitable for consumption and were seized and destroyed by the United Kingdom health authorities

The claimants alleged further that NAFDAC failed to carry out necessary tests to determine if the soft drinks were safe for human consumption.

The claimants averred that as a registered exporter with the Nigerian Export Promotion Council, they could lawfully export the products of Nigeria Bottling Company to any part of the world. Infact, Nigeria Bottling Company was aware that the products they purchased were meant for export.

Consequently, apart from other reliefs, the claimants demanded N15,119,619.37 as special damages and N1,622,000 being the money admittedly received from the claimants.

However, Nigeria Bottling Company in its amended statement of defence filed before the court by Mr. T. O.Busari admitted supplying the products but contended that the product manufactured by the company were meant for local distribution and consumption as the company does not manufacture its products for export, as Coca-Cola brand of soft drinks is manufactured and bottled by various Coca-Cola franchise holders in most countries of the world, including the United Kingdom.

What a defence?

The company denied that it was negligent in the manufacturing of its products as alleged, stressing that stringent quality control procedures were adopted in its production process to ensure that its products are safe for consumption of the final user.

The company denied that the damages alleged by the claimants were occasioned by its negligence or any fault from the company as the level of the chemical components in its soft drinks is safe for consumption in Nigeria.

Nigeria Bottling Company contended that the claimants’ claims are speculative, frivolous and vexatious and should be dismissed with substantial costs.

NAFDAC did not filed any defence.

In proving his case, Dr Fijabi Adebo testified for himself while being led in evidence by Mr Abiodun Onidare and tendered 12 exhibits, while the Sales Operation Manager, Micheal Nwosu China and the head of Central Laboratory, Abiodun Adeola Falana, both of Nigeria Bottling Company testified on behalf of the company and also tendered 12 exhibit.

In her judgment, Justice Oyebanji said: “It is imperative to state that the knowledge of the Nigeria Bottling Company that the products were to be exported is immaterial to its being fit for human consumption.

“The court is in absolute agreement with the learned counsel for the claimants that soft drinks manufactured by Nigeria Bottling Company ought to be fit for human consumption irrespective of color or creed”.

“It is manifest 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”.

“As earlier stated, the court is in absolute agreement with the learned counsel for the Claimants that consumable products ought to be fit for human consumption irrespective of race, color or creed”.

“By its certification as satisfactory, Fanta and Sprite products manufactured by Nigeria bottling company without any written warning on the products that it cannot be taken with Vitamin C, NAFDAC would have by its grossly irresponsible and unacceptable action caused great harm to the health of the unsuspecting public.

The judge ruled further: “The court, in the light of the damming evidence before it showing that NAFDAC has failed to live up to expectations, cannot close its eyes to the grievous implication of allowing the status quo to continue as it is”.

“For the reasons herein adumbrated in this judgment, the court hereby orders as follows:

“That NAFDAC shall forthwith 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 9 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.”

First, on reading this brilliant verdict this writer is convinced that Nigerians must be grateful for the heroic role of the plaintiffs who stood their ground, withstood all manners of blackmails and threats to follow through their matter for as long as it took the presiding judge, Adedayo Oyebanji to reach this significant determination by pronouncing both the Nigerian bottling company and NAFDAC criminally negligent in the manufacturing and distribution of products that are grossly substandard.

Although the damages awarded are way too insignificant, the Judge deserves a national award for displaying uncommon courage in ruling in such a way that millions of Nigerians are already singing the praises of the court for being the last hope of the common man in this instance.

Secondly, the line of defence adduced by Nigerian bottling company is a direct admission of the facts that this company has consistently and willingly manufactured poisonous substances which they sell to Nigerians purportedly as soft drinks.

And then to even think that NAFDAC which ought to regulate what products are consumed by Nigerians, deliberately failed to show up at the court to defend these weighty allegations, only to now wake up to file for stay of execution of the judgment shows that there is a conspiracy between NAFDAC and the Nigerian bottling company plc to continue to churn out substandard and indeed toxic substances to be supplied and sold to Nigerians.

So Nigerians who drinks these substandard drinks are fit to die? Let the millions of consumers of coca cola institute a class action in court to ensure that appropriate damages are awarded against Nigerian bottling company (NBC) for manufacturing products for consumption in Nigeria which even its  European counterpart ruled as poisonous.  

Apart from instituting a legal action against NBC NIGERIAN Government should be made to appreciate the indubitable fact that with this judgment it is apparent that NAFDAC must be unbundled and reorganized since their officials have become public enemies who collude with fake manufacturers of substandard products to be sold to Nigerians.

As an agency created by law, NAFDAC has many strong provisions to enable the officials competently carry out their duty to stop poisonous products from being supplied to the Nigerian market.  The problem is with the individuals manning NAFDAC and not the enabling law.

A perusal of the enabling law revealed that under the parts II of the Nafdac act, the agency have the functions of ; “to—regulate and control the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled water and chemicals; Conduct appropriate tests and ensure compliance with standard specifications designated and approved by the Council for the effective control of the quality of food, drugs, cosmetics, medical devices, bottled water and chemicals and their raw materials as well as their production processes in factories and other establishments.

NAFDAC is also to undertake appropriate investigations into the production premises and raw materials for food, drugs, cosmetics, medical devices, bottled water and chemicals and establish relevant quality assurance systems, including certificates of the production sites and of the regulated products.

NAFDAC is empowered to also “Undertake inspection of imported food, drugs, cosmetics, medical devices, bottled water and chemicals and establish relevant quality assurance systems, including certification of the production sites and of the regulated products; Compile standard specifications and guidelines for the production, importation, exportation, sale and distribution of food, drug, cosmetics, medical devices, bottled water and chemicals; Undertake the registration of food, drugs, cosmetics, medical devices, bottled water and chemicals; Control the exportation and issue quality certification of food, drugs, cosmetics, medical devices, bottled water and chemicals intended for export.

Other functions of NAFDAC are to “Establish and maintain relevant laboratories or other institutions in strategic areas of Nigeria as may be necessary for the performance of its functions under this Act; Pronounce on the quality and safety of food, drugs, cosmetics, medical devices, bottled water and chemicals after appropriate analysis; Undertake measures to ensure that the use of narcotic drugs and psychotropic substances are limited to medical and scientific purposes; Grant authorization for the import and export of narcotic drugs and psychotropic substances as well as other controlled substances; Collaborate with the National Drug Law Enforcement Agency in measures to eradicate drug abuse in Nigeria.

It is the duty of NAFDAC to advise Federal, State and local governments, the private sector and other interested bodies regarding the quality, safety, and regulatory provisions on food, drugs, cosmetics, medical devices, bottled water and chemicals.

It is also to undertake and co-ordinate research programmes on the storage, adulteration, distribution and rational use of food, drugs, cosmetics, medical devices, bottled water and chemicals; Issue guidelines on, approve and monitor the advertisement of food, drugs, cosmetics, medical devices, bottled water and chemicals.

In addition NAFDAC is charged with the duty of compiling and publishing  relevant data resulting from the performance of the functions of the Agency under this Act or from other sources; Sponsor such national and international conferences as it may consider appropriate; Liaise with relevant establishments within and outside Nigeria in pursuance of the functions of the Agency.

Importantly, the agency is to determine the suitability or otherwise of medicines, drugs, food products, cosmetics, medical devices or chemicals for human and animal use; and Carry out such activities as are necessary or expedient for the performance of its functions under this Act.

President Muhammadu Buhari and the National Assembly must act swiftly to clean up the mess that NAFDAC has become and compel Nigerian bottling company plc to recall all her products so as to start afresh to bottle on soft drinks that meet global best practices.  The soft drinks that are good for European markets must be the same that should be supplied to the Nigerian markets to stop Nigerians from dying from the consumption of poisonous and addictive substances in the guise of soft drinks.  

Nigerians must speak out, take action including civil disobedience and mass rallies to compel the quickest redress of these anomalies observed by the United kingdom laboratory which pronounced the Coca cola products in Nigeria as substandard and unfit for human consumption.  

*Emmanuel Onwubiko is Head of HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) and blogs @huriwa@gmail.com; www.emmanuelonwubiko.com


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