food service industry & the law

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food service industry & the law by Mind Map: food service industry & the law

1. 1) food act 1983

1.1. -Scope of the food act: the food act applies to manufacturers, importers, wholesalers & retailers of food (e.g. supermarkets & groceries stores) in addition to food providers. -definition of "food" under the food act: under s 2, "food" includes "every article manufactured, sold or represented for use as food or drink for human consumption or which enters into or is used in the composition, preparation, preservation, of any food or drink and includes confectionery, chewing substances and any ingredient of such food, drink, confectionery or chewing substances."

1.1.1. section 13- food injurious to health any person who prepares or sells any food that contains any substance that is poisonous, harmful or otherwise injurious to health commits an offence. on conviction, he is liable to a fine not exceeding rm100,000 or imprisonment for a term not exceeding 10 years, or to both (s 13(1)). section 13(2) states that in determining whether a food is 'injurious to health', we look at the probable effect of that food on the health of the person who consumed it. Obviously, a food that causes food poisoning comes under this category.

1.1.1.1. -section 13A- food unfit for human consumption section 13A(1) lists the condition where a food is considered unfit for human consumption: *any diseased, filthy, decomposed or putrid animal or vegetable substance *any portion of an animal unfit for food *the product of an animal which has died otherwise than by slaughter or as game

1.1.1.1.1. Section 13B- adulterated food -Section 14- Sale of food not of the nature, substance or quality demanded -Section 15- food labelling, etc, must comply with presctibed standard -Section 16- false labelling, etc -Section 17- advertisement -Section 19- prosecution -Section 23- Due diligence defence

2. 2) The penal code

2.1. Adulteration of food or drink which is intended for sale: Section 272 of the Penal Code makes it an offence to adulterate food. Sale of noxious food or drink: Section 273 of the Penal Code prohibits the sale of food or drink that is noxious or otherwise unfit for human consumption.

3. 3) Trade Descriptions Act 2011

3.1. The Trade Descriptions Act 2011 (TDA) repealed the Trade Descriptions Act 1972 and came into force on 1 November 2011. TDA prohibits the practice of applying false or misleading descriptions in connection with the supply of goods or services

3.1.1. a)False or Misleading Trade Descriptions *Trade descriptions: Section 6(1) of the TDA lists down various matters that form a trade description in respect to any goods or part of goods: - Nature or designation - Quantity, length, width, height, area, volume, capacity, weight, size or gauge. -Composition - The standard of fineness of articles made of precious metal -Date of expiry of the goods - Testing by any person and its results * False trade descriptions: Under s 5 of the TDA, it is an offence to apply a false trade descriptions to any goods. -A description need not be completely false in order to contravene s 5. A trade description is considered false where: • It is false to a 'material degree' i.e. false where it matters (s 7(1)); or • it is misleading (s 7(2))

3.1.1.1. c) Defences -Section 22 (Offences Due to Fault of Another Person)- A defendant may argue that an act or omission that gave rise to the offence was not committed by him, but by another person. -Section 23 (Defence of Personal or Domestic Use)- A defendant who was not a body corporate may argue that the description or statement that gives rise to the offence was for the purpose of personal or domestic use. -Section 24 (Defence of Mistake, Accident, etc)- Under s 24(1), a defendant may argue that the commission of the offence was due to: • a mistake on his part • reliance on information supplied to him • the act or default of another person • an accident or some other cause beyond his control -Section 25 (Innocent Publication of Advertisement)- Where a defendant is charged for an offence committed by reason of publication of an advertisement, he may argue that: • He is a person whose business is to publish or arrange for the publication of advertisement • He received the advertisement for publication in the ordinary course of business • He did not know or had no reason to suspect that its publication would amount to an offence under the TDA

3.1.1.2. b) False Statements -TDA also prohibits the making of false statements on various matters (Part |||, ss 13-21). -Section 16 prohibits the making of false representation as to the supply or approval of good or services. -Section 17 prohibits the making of false or misleading statements concerning the supply of services. -Section 18 prohibits a person from making any false or misleading statement in any advertisement in relation to any goods or services.

4. 4) HALAL CERTIFICATION

4.1. Meaning of 'halal' •Means permissible or lawful according to Islamic law & can be consumed by a Muslim. Comformity with Hukum Syarak •Halal food is food that does not consist of or contain any part of an animal that is haram or prohibited by Hukum Syarak. Preparation, processing or storage also affect halal status •Halal food must not be poisonous or hazardous to health. •A food that is contaminated with impure substances (according to Hukum Syarak) during its preparation, processing or manufacture cannot be described as halal. Scope of orders •Definition of Halal Order applies not only to food, but also to other goods, such as medicine & cosmetics. Halal certification •Food & goods that satisfy the criteria of halal of the Definition of Halal Order must still be certified as halal by the competent authorities. •The Department of Islamic Development Malaysia (JAKIM) & the Islamic Council in the respective States (State islamic Department or JAIN) shall be the competent authorities to certify a food or goods as halal. •Halal certificates issued by other bodies will not be recognised. •A manufacturer or seller that wishes to obtain halal certification should ensure that its operation/products comply with the criteria set out in the Halal Food: Production, Preparation, Handling and Storage-General Guidelines (MS 1500:2004)

4.1.1. Halal Logo •The manufacturer or seller of a food with halal certification is required to mark his product with the halal logo specified in the Forst Schedule of the Certification Order. Halal certification and imported goods •The requirements of halal certification and marking of halal logo are also applicable to all imported food & goods marketed in Malaysia. •The food or goods concerned can be sold as halal products in Malaysia provided they are marked with the name/logo of the relevant foreign certification body. •JAKIM has issued Guidelines on the Appointment of Foreign Islamic Organisation as Halal Certification Body for Products to be Exported to Malaysia. •The Guidelines set out the criteria & procedure for the grant of recognition to foreign halal certification bodies.

5. 5) Enforcement of the food act 1983

5.1. The Ministry of Health (MOH) is tasked with the job of enforcing the Food Act, and in this regard, the Minister can appoint 'authorised officers'(s 3(2)).

5.2. Authorised Officers

5.3. Power of authorised officer under s 4(1):

5.4. *He can open & examine any package which he believes to contain any food to which the Food Act applies.

5.5. *He can seize & detain any food or appliance.

5.6. *He can mark, seal or otherwise secure, weigh, count or measure any food or appliance.

5.7. Taking of sample

5.8. a) where sample can be divided into parts

5.9. *The procedures for taking samples are set out in Part ||| (reg 4-8) of the Food Regulations 1985.

5.10. *Suffice to state that, as a general rule, an authorised officer should divide the sample into 3 parts-1 part must be given to seller as record, 1 part must be sent for analysis, whereas the remaining part, he must retain.

5.11. b) where sample cannot be divided into parts

5.12. *If it is not practical to divide the sample into 3 parts, or where dividing the sample would affect its composition & thereby affect analysis; the authorised officer should proceed slightly different.

5.13. *It is acknowledged that in some cases, it is not possible to divide the sample into parts or lots.

5.14. Appointment of authorised officers: The purpose of the Food Act is to protect the public against health hazards & fraud in the preparation, sale & use of food.

5.14.1. Analysis to be carried out in 'Approved Laboratory'

5.14.2. * The samples obtained by an authorised officer in the exercise of his powers under ss4 and 5 shall ve sent to 'approved laboratory'for analysis.

5.14.3. *The result is the setting up of various Food Quality Control Laboratories and Public Health Laboratories under the control of the MOH.

5.14.4. *Section 3A of the Food Act empowers the Minister to approve such number of laboratories necessary for the enforcement activities under the Act.

5.14.5. Power of the Director General to Obtain Particulars of Certain Food Ingredients

5.14.6. *Under s 9(1), the Director General of Health ('Director General') may (with the written approval of the Minister), demand a person to provide him with particulars concerning the composition and use of any food or substance used in the preparation of food.

5.14.7. *Upon inspection by an authorised officer, if a food premises is considered to have failed to comply with any hygiene or sanitary requirements specified in the Food Act or the food regulations; the Ministry may order that the food premises be put into a hygienic & sanitary condition.

5.14.8. *This requirement also applies to any appliance used for the preparation, preservation, packaging, storage, conveyance, distribution or sale of food.

5.14.9. Food handlers training

5.14.10. Hygiene and Sanitary Requirements

5.14.11. *Under the Food Hygiene Regulation 2009, it is a requirement that all food handlers undergo a food handlers training in an institution specified by the Director (reg 30(1)).

5.14.12. *Such approved institutions are usually food analysis companies that also provide food handlers training.