Overruling warnings from expert, the FFSAI allowed companies to increase caffeine level in energy drink to 320mg per litre from 145mg per litre. Anyone who drinks 700ml of energy drink is at high risk, warn experts
Yajurvedi Rao, an activist had filed a public interest litigation (PIL) against the Food Safety and Standards Authority of India (FSSAI) for permitting companies to increase caffeine content in energy drinks to 320mg per litre from 145mg per litre.
Quoting an official from a popular energy drink manufacturer, an article from Mumbai Mirror, says, "We manufacture drinks not to kill people. Rather, one will find more caffeine in coffee than in energy drinks. The complainant has no scientific backing to prove anything."
The part marked in red says, “Consumption of more than two cans in a day may be harmful to your health. Not to be used for pregnant women, breast feeders, children under the age of 16, people with heart disease, high blood pressure, diabetes, allergy to caffeine, and athletes during exercise."
Image Courtesy: Wikipedia.org
However, Dr Arvind Shenoy, senior chemical and consumer product researcher, discards the argument. He said, “It is important to note that if the vehicle of consumption for caffeine is coffee, then, one can tolerate caffeine levels even up to 642 mg per day. The situation becomes completely different when the medium of caffeine intake is an energy drink – where the side-effects start kicking in from levels of even 231 mg per day.”
In short, this means one can tolerate caffeine up 642mg per day from coffee but with energy drink, the concoction becomes dangerous even at a level of 231mg per day. Remember, the FSSAI had allowed the level in energy drink to be increased to 320mg per litre. In other words, anyone who drinks around 700ml of an energy drink is at high risk and may suffer from side effects.
Rao had also filed applications under the Right to Information (RTI) Act to procure information. As per one such reply received by him, during 2009, Food and Drug Administration (FDA) seized stocks of Red Bull Energy drink. After testing, the FDA found that the energy drink contained 200mg per litre caffeine, more than the permitted level. After that the judicial magistrate at Alibaug directed the authorities to destroy the stock seized from the energy drink company.
Similarly, in July 2011, the Centre of Science and Environment (CSE) had conducted a study on energy drink brands in India, like Red Bull and Cloud 9. The study found that 44% of the samples had caffeine levels higher than the limit of 145 mg per litre back then. The study showed that Red Bull, Coca Cola’s Burn and Monster energy drink had two times more caffeine than Prevention of Food Adulteration Act, 1954 (PFA)
(Special report and energy report card)
According to Wikipedia.org , excessive consumption of energy drinks may induce mild to moderate euphoria primarily caused by stimulant properties of caffeine and may also induce agitation, anxiety, irritability and insomnia. Consumption of a single energy drink will not lead to excessive caffeine intake, but consumption of two or more drinks in a single day can. Adverse effects associated with caffeine consumption in amounts greater than 400 mg include nervousness, irritability, sleeplessness, increased urination, abnormal heart rhythms (arrhythmia), and dyspepsia.
In the US, energy drinks have been linked with reports of nausea, abnormal heart rhythms and emergency room visits. The drinks may cause seizures due to the "crash" following the energy high that occurs after consumption. Caffeine dosage is not required to be on the product label for food in the United States, unlike drugs, but some advocates are urging the FDA to change this practice, Wikipedia says.
Energy drink manufacturer in India wanted the FSSAI to increase caffeine limit to 320 mg per litre, which they claimed was safe and average for daily consumption. Counter-arguing on this claim, experts warned them against this decision, as the new limit would mean highly excessive amounts of caffeine. Standards for energy drinks clearly mention side effects of caffeine overdose, but the FSSAI still went ahead and increased the caffeine content limit. FSSAI not only failed to take any action against the violators of the PFA, but also issued the new standards in their favour.
(Standards of energy drinks)
After increasing the maximum caffeine limit in energy drinks, FSSAI also laid down new standards, which state that “Energy drinks in India will have to strip off their “energy” tag and instead be renamed as “caffeinated beverages”. Such beverages must also carry a safety warning for consumers stating that such drinks are not recommended for “children, pregnant or lactating women, and persons sensitive to caffeine and sportsperson”, and “no more than two cans per day”.
While FSSAI laid down some generic regulations for energy drink companies, they failed to take into account the side effects this caffeine consumption can have on youth as well as adults alike. In November 2010, the University of Texas Medical School at Houston reported that energy drinks contain more caffeine than a strong cup of coffee, and that the caffeine combined with other ingredients (sometimes not reported correctly on labels) such as guarana, taurine, other herbs, vitamins and minerals may interact.
Dr Shenoy says, “Studies show that 30 milligrams or less of caffeine can alter self-reports of mood and affect behaviour and 100 mg per day can lead to physical dependence and withdrawal symptoms upon abstinence. Caffeine withdrawal, or lack of consumption of the daily caffeine limit is equally harmful for people. The potential for caffeine withdrawal to cause clinically significant distress or impairment malfunctioning is reflected by the inclusion of caffeine withdrawal as an official diagnosis in ICD-10 (World Health Organization) and as a proposed diagnosis in DSM-IV (American Psychiatric Association). Although most research on withdrawal has been performed with adults, there is also evidence that children experience withdrawal effects during caffeine abstinence”.
Market research firm Euromonitor calculated that the global energy drink market was worth $3.8 billion in 1999 and this value grew to $27.5 billion in 2013. According to Wikipedia, during 2000 the US energy drink market was worth $350 million and data from the Packaged Facts company shows that the industry grew by 60% between 2008 and 2012 in the US—by 2012 total US sales were over $12.5 Billion. Red Bull and Monster were the two best-selling brands in 2012, accounting for nearly 80% of US energy drink sales, and the energy shot market is worth over $1 billion in 2014.
The energy drink Red Bull did not get market approval in France after the death of an 18-year-old Irish athlete, Ross Cooney, who died within hours after playing a basketball game and consuming four cans of the product. This market approval was challenged in the European Court of Justice in 2004, and consequently lifted. Norway did not allow Red Bull for a time, although this has recently been revoked. The UK investigated the drink, but only issued a warning against its consumption by children and pregnant women.
Considering the widespread sale and popularity of energy drinks such a drastic measure taken by the FSSAI will have a severe negative impact on consumers from India.
At last, the RBI governor is nudging Indian banks in the right direction
For the first time after taking over as the RBI governor, Dr Raghuram Rajan has made a strong pitch for a more level playing field for bank customers. His first credit policy statement for FY2014-15 specifically mentions several vexed issues that banks have ignored for years.
• On failure to maintain average quarterly balances, he has asked banks to cut their services to the bare minimum instead of levying penalties. He has also frowned upon such penalties imposed on inoperative bank accounts.
• The governor has said that there should be no charge on pre-payment of any floating rate term loans.
• He has also asked banks to limit customer liability in case of losses due to hacking and phishing, unless they can prove deliberate customer negligence.
Reserve Bank of India (RBI) has indicated that if banks fail to get the hint, it will issue directives to make them fall in line. All this is very welcome, indeed, but it doesn’t even begin to touch the areas that cause serious losses or harassment to customers.
Our Cover Story this time documents several examples of how the tardiness of banks with regard to deducting and crediting tax deduction at source (TDS) is causing immense grief to consumers, including senior citizens. RBI has repeatedly exhorted banks to be more diligent in this regard, but it has had little impact. A better solution would be for Dr Rajan to impress on the finance ministry and on the income-tax department, under the new government, to find a permanent solution to the TDS issue.
The governor also needs to act quickly to expand the role of the banking ombudsman to make it more relevant. There is a litany of complaints against some of the biggest banks, especially State Bank of India, about gross mis-selling of insurance products. We have specific examples of bank managers coercing small entrepreneurs into taking insurance as a condition for disbursing loans, because of incentives and goodies, such as foreign junkets, offered by insurers.
The Hong Kong & Shanghai Bank’s (HSBC’s) dubious destruction of actress Suchitra Krishnamoorthi’s wealth is already well documented by Moneylife. Although RBI played a big role in pushing HSBC to settle the case, Dr Rajan, who has spent long years in the US, would surely realise that the end result is hardly a deterrent to the Bank. Although the settlement seems large (just under Rs1.4 crore), it did not even cover her losses, interest lost, costs incurred in battling the Bank through multiple regulators and compensation for hardship and mental anguish.
Worse, HSBC can continue to ignore other victims. Even in Ms Krishnamoorthi case, where Moneylife Foundation helped her fight, she says, “I had reached almost a dead end till I approached you (Moneylife Foundation),” in 2012. When the amounts are smaller, and the banking ombudsman summarily rejects the case without appeal, consumers give up in disgust and the bank escapes triumphant.
If Dr Rajan is serious about a fair deal for consumers, he has to fix the mis-selling of third-party products first. The Banking Ombudsman Scheme has to be modified to examine mis-selling of insurance and mutual funds and other products under ‘wealth management’. If Dr Rajan can open a dialogue with the central vigilance commission (CVC) to ensure that bankers are not traumatised by vigilance inquiries into legitimate decision, he should find it easier to get the insurance and capital market regulators on board, to make investment safer for consumers.
At the moment, most consumers are convinced that the banking ombudsman’s offices, often, actively collude with bankers in rejecting their claims. A starting point would be to study the decisions by the ombudsmen, in just a couple of banks which have the maximum complaints, and examine how they have dealt with the complaints. The findings will be an eye-opener for Dr Rajan.
The Nuclear Power Corp must display suo moto the Safety Analysis and Site Evaluation Report of KKNP Plant I & II as per Section 4(1)(c) of the RTI Act, the CIC said. This is the 199th in a series of important RTI judgements given by former Central Information Commissioner Shailesh Gandhi
The Central Information Commission (CIC), while allowing an appeal, directed the Public Information Officer (PIO) of Nuclear Power Corp of India Ltd (NPCIL) to provide a to provide an attested photocopy of the Safety Analysis Report and Site Evaluation Report after severing any proprietary details of designs provided by the suppliers.
While giving the judgement on 30 April 2012, under the Right to Information (RTI) Act, Shailesh Gandhi, the then Central Information Commissioner, said, "...the Nuclear Power Corp of India shall publish all Safety Analysis Reports and Site Evaluation Reports and Environmental Impact Assessment reports prepared by the Department before setting up Nuclear Plants within 30 days of receiving them, unless it feels that any part of such report is exempt under the provisions of Section 8(1) or 9 of the RTI Act.."
Nagercoil, Tamil Nadu resident, Dr SP Udayakumar, on 25 April 2010, sought from the PIO information regarding Koodankulam Nuclear Power Plant (KKNPP), Reactor I & II in Tamil Nadu. For reactor I and II, he sought copies of Safety Analysis Report, Site Evaluation Report and Environment Impact Assessment report.
In his reply, the PIO said, the 339-pages Environment Impact Assessment report was available and the appellant can have a copy after paying Rs678 (Rs2 per page). "The Safety Analysis Report and the Site Evaluation Study Report were not public documents and contained design details that are proprietary in nature. As such the information was exempt under Sections 8(1)(a) and (d) of the RTI Act," the PIO said.
Citing PIO provided incomplete information, Dr Udayakumar filed his first appeal. The First Appellate Authority (FAA) agree with the PIO and observed that both the Safety Analysis Report and the Site Evaluation Study Report for KKNPP I & II were classified documents held by NPCIL.
Not satisfied with the FAA's ruling Dr Udayakumar approached the CIC with his second appeal. In his appeal, he said, safety and wellbeing of Indian citizens is very important and information must be provided (by NPCIL).
During the hearing, Mr Gandhi, the then Central Information Commissioner, observed that the copies of copies of the Safety Analysis Report and Site Evaluation Report of reactors I & II (collectively referred to as Reports) of the Koodankulam Nuclear Power Plant in Tamil Nadu were not provided to the appellant.
The PIO argued that the Reports were classified information and the concerned public authority had not taken a decision to release it in to the public domain. He submitted that the Reports were protected from disclosure under Sections 8(1)(a) and (d) of the RTI Act.
The Bench repeatedly asked the PIO the specific reasons for claiming the said exemptions. As regards Section 8(1)(a) of the RTI Act, the PIO stated that the security, strategic and scientific interests of the State would be affected on disclosure of the information. However, he did not give any explanations as to how the security, strategic and scientific interests of the State would be affected on disclosure of the said reports. Further, in relation to Section 8(1)(d) of the RTI Act, the PIO claimed that the Reports comprised of commercial confidence. However, he did not explain how disclosure of the said reports could be considered 'commercial confidence' and how it could harm the competitive position of a third party.
On the other hand, Dr Udayakumar, the appellant, contended that the exemptions under Sections 8(1)(a) and (d) of the RTI Act were not applicable to the present matter. He argued that a larger public interest would certainly be served on disclosure of the Reports. He also placed reliance upon the agreement between India and the International Atomic Energy Agency (IAEA) which lays down the safety and maintenance standards for nuclear activities.
Dr Udayakumar further submitted that reports of the same nature were classified as public documents in countries such as US, UK and Canada in order to ensure public debate. He also gave written submissions along with a CD detailing the arguments.
The Bench of Mr Gandhi then reserved its order.
During the next hearing on 30 April 2012, the Bench said it is legally well-established that information under the RTI Act can be denied only on the basis of Sections 8 and 9 of the RTI Act. "The fact that a record has been termed as 'classified', or that it shall be disclosed subject only to an executive decision to that effect-have not been stipulated as exemptions under the RTI Act. Therefore, the PIO cannot use such grounds for denying the information sought under the RTI Act; denial of information shall be on the basis of Sections 8 and 9 of the RTI Act only," Mr Gandhi said.
The Bench then examined the PIO's contention that the Reports were exempt from disclosure under Sections 8(1)(a) and (d) of the RTI Act.
Section 8(1)(a) of the RTI Act exempts from disclosure-"information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence".
Mr Gandhi noted that during the last hearing on 23 April 2012, even after repeatedly asking the basis for seeking exemption under Section 8(1)(a), the PIO gave no reasons.
Section 8(1)(d) of the RTI Act exempts from disclosure- "information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;".
Mr Gandhi said, "In order to claim the exemption under Section 8(1)(d) of the RTI Act, the PIO must establish that disclosure of the information sought (which may include commercial or trade secrets, intellectual property or similar information) would result in harming the competitive position of a third party. At the hearing held on 23/04/2012, the Commission repeatedly asked the PIO the specific reasons for claiming the said exemption. The PIO simply stated that the information was commercial confidence; he provided no explanation as to how disclosure of the said reports would harm the competitive position of a third party, except mentioning that the designs were of Russian manufacturers."
"From this statement and the PIOs contention that the reports contained design details, it appears that the contention was that design details of the plant were in these reports and divulging them may be considered disclosing commercial confidence, trade secret or intellectual property and such disclosure may harm the competitive position of the supplier," he said.
As per Section 19(5) of the RTI Act, in any appeal proceedings, the onus to prove that a denial of request was justified shall be on the PIO who denied the request.
"In the instant matter, the PIO has not given any justification for showing how the security, strategic and scientific interests of the State would be prejudicially affected if the Reports were disclosed-under Section 8(1)(a) of the RTI Act. Further, the PIO's argument indicates that exemption under Section 8 (1) (d) may be attracted if the design details of the plant were disclosed. It follows that the burden required to be discharged by the PIO under Section 19(5) of the RTI Act has not been done as far as exemption under Section 8 (1) (a) is concerned," the Bench noted.
After perusing documents submitted by Dr Udayakumar, the Bench observed that India was a member of the IAEA and had entered into the Application of Safeguards to Civilian Nuclear Facilities Agreement with IAEA in 2009. The KKNPP-Reactors I & II are included in the list of nuclear power facilities and installations annexed to the agreement for application of the safeguards prescribed by IAEA.
IAEA has, in its Safety Standards Series, issued a set of standards to be adhered to while undertaking a site evaluation for nuclear installations. IAEA has issued standards for the safety of nuclear power plants vis-à-vis design, operation and mitigating circumstances that could jeopardize safety. It prescribes safety assessment which is carried out in order to identify the potential hazards that may arise from the operation of the plant.
Dr Udayakumar had also referred to the Vienna Convention on Nuclear Safety, 1994 (Convention), to which India is a signatory. Article 5 of the Convention requires India to submit for review a report on the measures it has taken to implement each of its obligations under the Convention including evaluation of safeguards and safety standards in place for nuclear power plants.
He also cited the report of 2010 for India and referred to certain parts therein. It has been submitted that the report is required to be made in accordance with each Article listed in the Convention. "Reporting in relation to Article 17-which refers to 'Siting' makes it clear that site evaluation does not relate to national security matters under Section 8(1)(a) or anything protected under Section 8(1)(d) of the RTI Act. It purely relates to geography, environment, meteorology, geology etc. These are all connected with the environment directly and inextricably and have a huge bearing on public health and safety," the Bench noted.
It said, "Reliance has also been placed upon Article 14-'Assessment and Verification of Safety' and Article 18-'Design and Construction'. The appellant had also referred to a government of India monograph mandating what is involved in site evaluation study and contends that the monograph makes it clear that the entire exercise of site evaluation is for ensuring safety of the environment and the people from any danger or fallouts."
Mr Gandhi said the Bench found merit in Dr Udayakumar's contention. "The purpose of a site evaluation for nuclear installation in terms of nuclear safety is to protect the public and the environment from the radiological consequences of radioactive releases due to accidents, etc. The Bench notes that the site evaluation report not only provides the technical basis of the safety analysis report, it contains technical information useful for fulfilling the environmental impact assessment for radiological hazards. Therefore, it follows that the site evaluation report forms an important basis of the environmental impact assessment report as well. In order to appreciate the conclusions reached in the environmental impact assessment report, a citizen must have access to the site evaluation report as well. This will enable the public to obtain a comprehensive understanding of the likely environmental impact of the KKNP Project," he said.
"Given the serious implications of the internal and external safety factors relating to nuclear reactors there is a great public interest in disclosing the safety evaluation report of the KKNP Project. Disclosure of the site evaluation and safety assessment reports will enable citizens to get a holistic understanding of the KKNP Project including environment and safety concerns," the Bench added.
Section 4 of the RTI Act contains a statutory direction to all public authorities "to provide as much information suo moto to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information".
More specifically, Section 4(1)(c) of the RTI Act mandates that all public authorities shall- "publish all relevant facts while formulating important policies or announcing the decisions which affect public".
It follows from the above that citizens have a right to know about the Safety Analysis and the Site Evaluation Study Report, which has been prepared with public money.
Mr Gandhi said, the PIO has not justified the denial of the information in terms of Section 8 (1) (a) as required by Section 19 (5) of the Act. The PIO did not give any reasoning to the appellant initially, nor did he provide any cogent explanation during the hearing to the Bench, he added.
Section 8(2) of the RTI Act states, "Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests".
"The Bench is of the view that the denial of Section 8 (1) (a) of the RTI Act has not been established, and there is certainly a larger public interest in the disclosure of these reports. Section 8 (1) (d) may be attracted if the said reports have details of designs of the plant which are specially provided by the suppliers. In that event the PIO can severe such design details which have been provided by the supplier as per the provisions of Section 10 of the Act," Mr Gandhi said.
Talking about safety evaluation reports, the Bench said, where worldwide, site evaluation and safety analysis reports of nuclear power plants and installations are being put in public domain to elicit public views, India can have no reason to treat its citizens differently.
"If such reports are put in public domain, citizens' views and concerns can be articulated in a scientific and reasonable manner. If the Government has reasons to ignore the reports, these should logically be put before people. Otherwise, citizens would believe that the Government's decisions are arbitrary or corrupt. Such a trust deficit would never be in the interest of the Nation," the Bench said.
While allowing the appeal, the Bench directed the PIO to provide an attested photocopy of the Safety Analysis Report and Site Evaluation Report after severing any proprietary details of designs provided by the suppliers to the appellant before 25 May 2012. "Further, the PIO will also ensure that the complete Safety Analysis Report and Site Evaluation Report and the Environmental Impact report are placed on website before 30 May 2012, the order said.
Mr Gandhi also said, "all Safety Analysis Reports and Site Evaluation Reports and Environmental Impact Assessment reports prepared by the Department before setting up Nuclear Plants must be displayed suo moto as per the mandate of Section 4 (1)(c ) & (d) read with 4 (2). If parts of such report are exempt as per the RTI Act, this should be stated and the exempt parts could be severed, after providing the reasons for such severance. Such a practice would be in accordance with the provisions of Section 4 of the RTI Act and would result in greater trust in the Government and its actions."
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2012/000544/18674
Appeal No. CIC/SG/A/2012/000544
Appellant : Dr SP Udayakumar,
42/27, Esankai Mani Veethy,
Parakkai Road Junction,
Nagercoil, Tamil Nadu-629002
Respondent : SK Srivastava,
PIO & Deputy Chief Engineer (Projects),
Nuclear Power Corporation of India Limited,
Vikram Sarabhai Bhawan,
Central Avenue Road, Anushakti Nagar,