Melamine at JNPT: Re-export, Recall of the Earlier Lot, and a 24% Argument
A consignment of 24 MT of skimmed milk powder from a European supplier is held at JNPT. Testing through the import clearance system shows melamine at 3.1 mg/kg against the Indian limit of 2.5 mg/kg for milk and milk products. The same importer cleared 24 MT from the same manufacturer six weeks earlier with a no-objection clearance, supported by a supplier certificate of analysis stating 0.8 mg/kg, and has already sold 8 MT of that earlier lot to a biscuit manufacturer in Nashik. The biscuit manufacturer has converted it into 60 MT of biscuits and despatched 70% to distributors in Maharashtra, Gujarat and Karnataka. Four MT of the earlier lot remains in the importer's godown. The importer wants to ship the held container to a buyer in Africa and argues that (i) 3.1 mg/kg is only 24% above the limit and cannot be unsafe, (ii) nothing shows the earlier lot was contaminated, and (iii) re-export is cheaper than destruction.
1. Can the held consignment be re-exported as the importer proposes? Set out the legal position and the conditions.
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The consignment cannot be cleared. Imported food must comply with the standards prescribed under the Act; melamine at 3.1 mg/kg exceeds the 2.5 mg/kg limit, so the consignment is non-compliant and no no-objection clearance can issue.
Re-export is a permitted disposition, not the importer's unilateral right. A rejected consignment may be re-exported or destroyed, at the importer's cost, under the supervision and with the written permission of the authority, within the time allowed and against documentary proof of actual shipment out of Indian territory. The importer must apply for that permission, name the destination and consignee, and satisfy the authority that the goods will not be diverted back. Destruction is the default if re-export is not completed in time or is not permitted.
The 'only 24% above' argument fails. The limit is a maximum, not a target with a tolerance band. Melamine is not a permitted additive; its presence above the prescribed level is adulteration/contamination, not a minor quality variation. The supplier's certificate of analysis is irrelevant once port testing shows non-compliance - the statutory sample governs, and the importer carries the risk of its supplier's quality system.
Residual liability. Re-export does not wipe out the attempt to import non-compliant food. The importer remains exposed to action for the contravention, and the file should record the supplier, lot numbers and the importer's due diligence.
2. Does the earlier lot trigger a recall, and if so what classification and by whom?
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Yes - and not only on proof of contamination. The earlier consignment is from the same manufacturer, cleared six weeks earlier on a certificate of 0.8 mg/kg that port testing has now contradicted for the same source. That is a strong, documented reason to suspect the earlier lot. Waiting for laboratory confirmation of a suspect lot while 60 MT of biscuits sit in three States is not a defensible precaution.
Who acts. The importer has the immediate obligation to trace and, if necessary, recall the SMP in its godown and downstream; the biscuit manufacturer has the obligation to recall its own product made from it; both must report to FSSAI and to the Commissioners of the affected States, maintain traceability records and make the depth of recall explicit - distributor level or retail level.
Classification. Melamine is a renal toxicant, but in biscuits the SMP is heavily diluted, so the likely exposure is low. A Class II recall - a health hazard that is temporary or medically reversible - is the proportionate call where adult consumption is expected; it moves to Class I if any product could reach infants, or if the calculated exposure approaches the tolerable intake.
Steps. Detain the 4 MT; sample retained SMP and biscuits; obtain the biscuit manufacturer's distribution list by batch; issue trade and where necessary consumer notices; verify recovery; then root-cause the supplier approval and the reliance on certificates of analysis.
3. The Nashik manufacturer says it relied in good faith on the importer's clearance and the supplier's certificate. How does liability divide?
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Liability is not diluted by contractual reliance. The Act fixes responsibility on the manufacturer, importer, distributor and seller for the food each of them places on the market, and each must be able to show due diligence. The biscuit manufacturer is responsible for its own ingredient approval: a certificate of analysis is a supplier assurance, not a substitute for a vendor qualification programme, risk-based testing of high-risk dairy inputs, and retention of supplier lot records. It should have tested melamine at least on a surveillance basis for imported milk powder.
The importer's position is worse. It selected the supplier, brought the goods in, and presented the earlier lot for clearance. Its duty includes verifying the foreign manufacturer and not simply forwarding the supplier's paper. That the earlier lot cleared does not transfer the risk to the regulator.
Practical division. Both parties face action, but on different facts and with different exposure: the importer for importing non-compliant food; the manufacturer for manufacturing from a contaminated input and for the recall and traceability obligations. The manufacturer's genuine reliance on the clearance is a mitigation and cost-allocation point between the two, relevant to sentence and to civil recovery, not a defence to the statutory charge. Insurance and contractual indemnities are matters between them; the regulator's concern is that the recall happens and the records exist.