Case 2975 K/Pdt/2009

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The plaintiff was the father of two children whose second child was breastfed for the first 6 months and then was switched to a milk formula. In 2008, the Bogor Agricultural Institution published research that there were a number of infant formulas which were contaminated by enterobactersakazakii bacteria which could cause enteritis, sepsis and meningitis.  The published research omitted the types and brand names of the contaminated products. Bogor Agricultural Institution submitted the research to the Food and Drug Administration Watchdog, who neither obtained the full results from Bogor Agricultural Institution nor undertook further investigation into the matter nor made the complete results available to the public, despite an obligation to do so. The Minister of Health also failed to provide clarification to the public regarding the types of products with enterobactersakazakii.

The plaintiff sued the Bogor Agricultural Institute and the Food and Drug Administration Watchdog and the Minster of Health, claiming that due to the tortuous actions of the defendants the plaintiff incurred damages (a) for time spent investigating which products were contaminated and (b) caused by fear over the potential health consequences of the infant formula consumed by his children. He argued that (i)  as a citizen of the republic of Indonesia he was entitled to obtain an optimal level of health (Law of the Republic of Indonesia No. 23 of 1992 Article 4 on Health), and (ii) as a citizen of Indonesia domiciled in the Special Capital City District of Jakarta he also had a “right to peace of mind, security and safety in the consumption of goods and/or services as listed in Article 4 (a) and correct, clear and honest information regarding the condition and guarantee of goods and / or services in accordance with Article 4 (c) of Law No.8 of 1999 on Consumer Protection”.

The Central Jakarta District Court found in favor of the plaintiff, rejecting the arguments of the defendants that the court lacked jurisdiction, the plaintiff lacked standing, and that the claim was obscure or misdirected. On appeal, the Jakarta High Court affirmed the District Court’s decision that all three defendants committed tortious acts without re-examining the lower court’s legal reasoning. The defendants then further appealed in cassation to the Supreme Court, alleging that the lower court had erred in its application of the tort law as set out in Article 1365 of the Civil Code.

The Supreme Court held that the lower court made no errors of law in reaching its judgment. As such, the Supreme Court rejected the appeals in cassation of all three defendants, noting that not publishing the research demonstrated a lack of care on the part of the defendants as public institutions.

The Supreme Court held that important research relating to the interests of society that was completed should have been published so that members of the public could be informed of potential health risks. The Court further determined that the research finding suspected enterobactersakazakii contamination of milk formula in baby food was not widely disseminated to the public and this resulted in public unrest caused by concern about the potential risk for consumers.

“That the research results of Dr. Sri Estuningsih regarding suspected enterobactersakazakii contamination of milk formula in baby food were not widely announced to the public; That because these research results were not published widely there was public unrest caused by concern about the potential risk for consumers; That research important research relating to the interests of society had been completed, and that this research should have been published so that members of the public could have been informed of potential health risks; That not publishing this research did not demonstrate care on the part of the Defendants as public institutions” (Page 39)
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