Pepsico India Holdings Pvt. Ltd. vs The Bureau Of Indian Standards And ...
2006 Latest Caselaw 849 Del

JUDGMENT

Vikramajit Sen, J.

Page 1826

1. Arguments have been addressed in great detail, justifying the final disposal of the writ petition. The Petitioner has challenged the decision of the Bureau of Indian Standards, Respondent No. 1 (`Bureau' for brevity) inter alia calling upon the Petitioner to discontinue the use of the label reproduced below. It has been clarified on behalf of the Respondents that whilst the Bureau has no objection to the use of brand names which have been registered with the Trade Marks Registry, the use of words 'PURITY GUARANTEED' and the depiction of mountains on top of the trade-mark `Aquafina' on labels of Packaged Drinking Water is deliberately misleading and should be removed. The contention of the Bureau is that it is entitled to withdraw its license i.e. permission to use the ISI logo or Standard Mark as defined in Section 2(t) of the Bureau of Indian Standards Act, 1986 (hereinafter referred to as the bids Act) thereby depicting compliance with standards laid down by Bureau. This cancellation of the license would be without prejudice to any prosecution under the Prevention of Food Adulteration Act (`PFA Act' for short).

2. This is the label which is at the centre of the controversy.

3. The contention of the Petitioner is that the words 'PURE', 'CRISP', 'REFRESHING', 'PURIFIED' and 'PURITY GUARANTEED' does not contravene the expectations of the law and merely convey their ordinary meaning to ordinary citizens. The Petitioner had been coerced into giving up the use of the words 'PURE', 'CRISP' and 'REFRESHING' in order to avoid litigation. However, the continued objection of the Bureau pertaining to the use of the words 'PURITY GUARANTEED' has left the Petitioners with no option but to invoke the extraordinary jurisdiction of this Court. It has been asseverated that the Petitioner employs and uses state-of-the-art technology, including the reverse osmosis process of purification in the manufacture of `Aquafina' Packaged Drinking Water. It has not been controverter that the Petitioner's artistic work/device has been granted registration in several countries across the globe.

4. It can certainly be argued that the artwork on the label depicts ice-clad mountains with a rising sun in the background. It is also possible that, given the aggressive advertising assault and hype on the salubrious quality of minerally enriched mountain-water, the educated upper classes and the upwardly-mobile members of the society may visualize that Aquafina is drawn from high altitude regions. However, if such people are so easily fooled into believing that the water which they are purchasing comes from such pristine and cool climes, they have only themselves to blame for their gullibility. The label clearly states that the product is 'packaged drinking water' in contradistinction to 'mineral water'. It may be immediately highlighted that Page 1827 purity of mineral water drawn from the mountains is neither guaranteed nor controlled to the same extent as packaged drinking water. Obviously, mountain mineral water would have some impurities in it along with the wealth of minerals that it reputedly contains. While deciding controversies such as the present one there is a tendency to get lost in the labyrinth of legal provisions, in semantic discussions on the sundry shades of the meanings of words which are otherwise of common parlance. Instead, the scope of enquiry should be towards ascertaining the mental image that a common man, with ordinary knowledge and average intelligence would develop on seeing the label or the artistic work.

5. The powers of the Bureau have been enumerated in Section 10 of the bids Act to include making such inspection and taking such samples of any material or substance as may be necessary to see whether any article or process in relation to which the Standard Mark has been used conforms to the Indian Standard or whether the Standard Mark has been improperly used in relation to any article or process with or without a license; and to inspect any article or process, at such times and at such places as may be prescribed in relation to which the Standard Mark is used or which is required to conform to the Indian Standard by this Act or under any other law irrespective of whether such article or process is in India or is brought or intended to be brought into India from a place outside India.

6. Black's Law Dictionary, 5th Edition defines the word 'pure' as absolute, complete, simple, unmixed, unqualified. In the same treatise the word 'purity' within food adulteration statute indicates freedom from extraneous matter or anything debasing or contaminating. The Oxford Dictionary contains several definitions of the word 'pure' including, in the physical sense - not mixed with anything else; free from admixture or adulteration; unmixed, unalloyed; not mixed with, or not having in or upon it, anything that defiles, corrupts, or impairs; unsullied, clean. The Oxford Dictionary further defines the word 'pure', in the non physical or general sense, as - without foreign or extraneous admixture: free from anything not properly pertaining to it; simple, homogeneous, unmixed, unalloyed. Stroud's Judicial Dictionary defines the word 'purify' to indicate that all foreign impurities have been removed. It further clarifies that butter is nevertheless `pure' though it has the addition of a little salt; and that the question to be answered is whether the traded article is pure in the sense in which the word is used in the trade. Water can still be `pure' in the context of Municipal Acts after the addition of fluorides. The antonym of `pure' in the present context would be `adulterated'. Adulteration has been defined in Black's Law Dictionary as - 'the act of corrupting or debasing, the act of mixing something impure or spurious with something pure or genuine, or an inferior article with a superior one of the same kind. The term is generally applied to the act of mixing up with food or drink intended to be sold other matters of an inferior quality, and usually of a more or less deleterious quality. The act, process or omission by which food becomes impure and unfit for consumption. Such is prohibited and regulated by federal and state statutes and agencies'. It is this meaning of the word `purity' or `pure' which must weigh in the mind while considering whether the Petitioners are guilty of misrepresentations.

Page 1828

7. In the Counter Affidavit filed on behalf of the Bureau details of the specifications or amendments made to the required standards of packaged drinking water have been spelt out. The PFA Rules were amended by the Ministry of Health vide Gazette Notification dated 18.7.2003, effective from 1.1.2004, in respect of pesticide residues. The Indian Standard Packaged Drinking Water (Other Then Packaged Natural Mineral Water) Specification have as many as 51 enumerations. These Rules also define 'packaged drinking water' to mean - 'water derived from any source of potable water which is subjected to treatments, namely, decantation, filtration, combination of filtration, aerations, filtration with membrane filter, depth filter, cartridge filter, activated carbon filtration, demineralisation, remineralisation reverse osmosis and packed. It may be disinfected to a level that will not lead to harmful contamination in the drinking water; it may be disinfected by mean of Chemical agents and/or physical method of the number of micro-organism to a level that does not compromise food safety or suitability'. It is not the Respondents' case before me that Aquafina violates any/all those specifications.

8. Two other relevant provisions contained in the PFA Rules, 1955 reads as under:

37. Labels not to contain false or misleading statements.--A label shall not contain any statement, claim, design, device, fancy name or abbreviation which is false or misleading in any particular concerning the food contained in the package, or concerning the quantity or the nutritive value or in relation to the place of origin of the said food:

Provided that this rule shall not apply in respect of established trade or fancy names of confectionery, biscuits and sweets such as Barley, Sugar, Bulls Ice-cream Cracker, or in respect of aerated waters such as Ginger Beer or Gold Spot or any other name in existence in international trade practice.

41. Imitations not to be marked 'pure'.--The word 'pure' or any word or words of the same significance shall not be included in the label of a package that contains an imitation of any food.

9. It will also be relevant to note that the definition of `food' as contained in Section 2(v) of the PFA Act now includes packaged drinking water as per Notification duly Gazetted by Ministry of Health and Family Welfare.

10. By virtue of Rule 49(28) of the PFA Rules, 1955 no person shall manufacture, sell or exhibit for sale packaged drinking water except under the Bureau of Indian Standards Certification Mark. Clause 7.2 of IS 14543:2004 stipulate as under:

7.2 Labelling Prohibitions.

7.2.1 No claims concerning medicinal (preventative, alleviative or curative) effect shall be made in respect of the properties of the product covered by the standard. Claims of other beneficial effects related to the health of the consumer shall not be made.

7.2.2 The name of the locality, hamlet or specified place may not form part of the brand name unless it refers to a packaged drinking water collected processed at the place designated by that brand name.

Page 1829

7.2.3 The use of any statement or of any pictorial device which may create confusion in the mind of the public or in any way mislead the public about the nature, origin, composition and properties of drinking water is prohibited.

11. Mr. Jos Chiramel, learned Counsel for the Bureau, has reiterated the asseverations in the Counter Affidavit to the effect that 'the parameters thus provided in the Indian Standard, which is at par with Entry A- 33 of Appendix B of the PFA Rules, only provides for maximum permissible limits of abovementioned limits. Hence merely because the Petitioner complies with the IS 14543:2004 specifications, it cannot by any stretch of imagination be said that the packaged drinking water that they are manufacturing or selling is `pure', which would amount to false representation to members of the public. In fact the only water that can be said to have the above ingredients at nil level would be the distilled water, which otherwise is not consumable. Another false representation suggested in the Petitioner's label is the depiction of the mountain with snow in the background suggesting that the water being sold by them is collected from the snow-capped mountains, which is also patently false'. This encapsulates the parameters of the present dispute.

12. The definition of the word `pure' and its cognates as well as the definition contained in the PFA Rules leave no room for doubt that the correct connotation of the words `packaged drinking water' is not what is envisaged in Chemistry, i.e., absolute H2O. The stand of the Bureau is that only distilled water can be termed as pure but such water is not consumable by humans. It is, therefore, palpably not possible to contend that the word `pure' cannot be used in respect of packaged drinking water, even though such water may be directly and fully compliant with the standards prescribed by the Bureau itself, or prescribed under the PFA Rule. The public is not concerned with pure water in the Chemistry sense; the public is concerned only with drinkable water which, because of being compliant with Bureau standards, is considered by the Authorities to be safe for human consumption. The various definitions of pure and purity merely accentuate this aspect of the product. The meaning ascribed to the word `pure' must be seen in the context of the standard prescribed by the Bureau or under the PFA Act and Rules, since no useful purpose would be served at all in considering it in its absolutely pure state viz. distilled, as per the stance of the Bureau itself. When an ordinary consumer reads the words 'PURITY GUARANTEED' the thought which would come to his mind is that it is totally safe for human consumption and/or fully compliant with the standards set down by the Bureau. The impugned label assures the consumer nothing more than this. There is, therefore, no justification whatsoever for prohibiting the use of the words `PURITY GUARANTEED'. If there is any failure to comply with the standards prescribed by the Bureau or under the PFA Act, that would lead to the consequence of prosecution under the PFA Act and/or cancellation of the license granted by the Bureau.

13. One of the largest Public Sector Petroleum Undertakings is aggressively marketing its petroleum product under the slogan - 'pure for sure'. I would not be able to accept the argument that the use of these words would convey any meaning other than that the petroleum product offered for sale, if Page 1830 purchased and used would not be harmful in any manner to the engine, and that optimum mileage would be obtained.

14. No infraction that Rule 37 of the Prevention of Food Adulteration Act, 1955 is manifested or has been established by the Bureau. So far as Rule 41 is concerned the subject food product, namely, packaged drinking water, is not an imitation. If the argument of the Bureau is to be sustained, a blanket ban would come into effect on the use of the word `pure' thereby rendering the phrase `imitation of any food' totally otiose. Such an interpretation is not permissible. Today, various Chemicals are employed in food articles especially for flavour. It is in that context that use of the word `pure' is not allowed.

15. The argument that the label falsely and misleadingly depicts that the water is drawn or derived from mountain sources because of the depiction of snow-capped mountains on the label has now to be dealt with. Persons who purchase bottled water such as `Aquafina' can easily distinguish between packaged mineral water and packaged drinking water. Learned Counsel for the Respondent has not contended that the words 'packaged drinking water' have been printed in such a manner as to escape the notice of the consumer. I fail to appreciate that there is any possibility of a discerning consumer, such as one who is desirous of consuming only mineral water, being misled into purchasing `Aquafina' believing it to be mineral water drawn from snow-capped mountains.

16. The primary function of consuming water is to quench ones thirst, which is the same as preventing dehydration. The common perception in hot or tropical countries is that cold water is not only satiating but also refreshing. Even so, the stand of the Respondent that the pictorial device or artwork on the label showing snow clad mountains misleads the consumer is stretching the argument beyond reasonable limits.

17. Reliance by learned Counsel for the Respondents on the decisions in Amritdhara Pharmacy v. Satyadeo Gupta and Satyam Infoway Ltd. v. Sifynet Solutions (P) Ltd. has no relevancy to the present controversy.

18. For these manifold reasons I am satisfied that the writ petition is well founded. It is declared that the use of the words 'PURE', 'CRISP', 'REFRESHING', 'PURIFIED' and 'PURITY GUARANTEED' on a label pertaining to packaged drinking water does not offend any provisions of law. It is further held that the use of the pictorial device/artwork on the label is not misleading and is not prohibited by any law. The impugned letters including those dated 24.9.2001, 13/14.9.2005, 5.10.2005 and 7.10.2005 cannot be enforced by the Respondents.

19. The writ petition is allowed in the above terms. Parties to bear their respective costs.