LAWS AND REGULATIONS ON HALAL PRODUCTION IN MALAYSIA AND

MANUFACTURER’S LIABILITY IN FOOD PRODUCTION

FEDERATION OF MALAYSIA MANUFACTURERS (FMM),19 OCT 2009, SEBERANG JAYA, PULAU PINANG

A legal concept/doctrine that holds A legal concept/doctrine that holds manufacturers/sellers manufacturers/sellers responsible/liable, for harm caused responsible/liable, for harm caused by defective products sold in the by defective products sold in the marketplace.marketplace.

3 BASIC ELEMENTS:

Negligence:Negligence:

failure to exercise reasonable care failure to exercise reasonable care to prevent product defects arising to prevent product defects arising out of manufacturing process;out of manufacturing process;

Breach of WarrantyBreach of Warranty: :

failure to fulfill the terms of a failure to fulfill the terms of a claim or promise concerning the claim or promise concerning the quality of the product;quality of the product;

Strict LiabilityStrict Liability: :

seller/manufacturer liable for a seller/manufacturer liable for a defective product even if defective product even if negligence or breach of warranty negligence or breach of warranty do not applydo not apply

NEGLIGENCE

LEGALLY SPEAKING;LEGALLY SPEAKING;

The failure to meet a standard of behaviour The failure to meet a standard of behaviour established to protect society against established to protect society against unreasonable risk.unreasonable risk.

The cornerstone of tort liability and a key The cornerstone of tort liability and a key factor in most personal injury and property-factor in most personal injury and property-damaged trials.damaged trials.

LIABILITY

CRIMINALFOOD ACT 1983

CIVIL

Malaysian Law

Penal Code 1976Penal Code 1976Section 272: Adulteration of Food or Drink Section 272: Adulteration of Food or Drink which is intendedwhich is intended

“…“…intending to sell such food or drink…or intending to sell such food or drink…or knowing it to be …”knowing it to be …”

shall be punished with imprisonment not shall be punished with imprisonment not exceeding six month/fine to the amount of exceeding six month/fine to the amount of two thousand/bothtwo thousand/both

Section 273. Sale of Noxious food (unfit for Section 273. Sale of Noxious food (unfit for food/drink)food/drink)

imprisonment not exceeding six month/fine imprisonment not exceeding six month/fine two thousand/bothtwo thousand/both

Food Act 1983

Section 13 (1). Food injurious to HealthSection 13 (1). Food injurious to Health

on conviction:on conviction:

1.Fine not exceeding hundred thousand; or1.Fine not exceeding hundred thousand; or

2.Imprisonment for a term not exceeding ten 2.Imprisonment for a term not exceeding ten years; or years; or

3.Both.3.Both.

Section 13A (1). Food Unfit for Human Section 13A (1). Food Unfit for Human ConsumptionConsumption

On conviction:On conviction:

1.1. Fine not exceeding fifty thousand; orFine not exceeding fifty thousand; or

2.2. Imprisonment not exceeding eight years; Imprisonment not exceeding eight years; or or

3.3. BothBoth

13A (2). Prepare or sells food that 13A (2). Prepare or sells food that contains any matter foreign to the nature contains any matter foreign to the nature of such food;of such food;

1.1. Fine not exceeding thirty thousand; orFine not exceeding thirty thousand; or

2.2. Imprisonment not exceeding five years; or Imprisonment not exceeding five years; or

3.3. BothBoth

Section 13A (3). Food in a damaged package;Section 13A (3). Food in a damaged package;

1.1. Fine not exceeding thirty thousand; orFine not exceeding thirty thousand; or

2.2. Imprisonment not exceeding five years; or Imprisonment not exceeding five years; or

3.3. BothBoth

Section 13B. No person shall prepare or Section 13B. No person shall prepare or sell adulterated food.sell adulterated food.

(4). Contravention of the provision;(4). Contravention of the provision;

1.1. Twenty thousand; orTwenty thousand; or

2.2. Imprisonment not exceeding five years ;orImprisonment not exceeding five years ;or

3.3. BothBoth

Section 14 (1). Sale of Food not of the Nature, substance or Quality demanded1.imprisonment not exceeding five years; or2.Fine; or3.Both

Section 15. Labelling

Not in a manner prescribed by the standard:Not in a manner prescribed by the standard:

1.1. Imprisonment for three years/ orImprisonment for three years/ or

2.2. Fine, orFine, or

3.3. BothBoth

Section 16. False Labelling

That is false, misleading or deceptive as That is false, misleading or deceptive as regards its character, nature, value, regards its character, nature, value, substance, quality, composition, merit or substance, quality, composition, merit or safety, purity.etcsafety, purity.etc

1.1. Imprisonment not exceeding three years; Imprisonment not exceeding three years; oror

2.2. Fine; orFine; or3.3. BothBoth

Section 17. Advertisement

That cause any person to believe that it That cause any person to believe that it relates to such food, or to any ingredient relates to such food, or to any ingredient or constituent thereof…or constituent thereof…

1.1. Imprisonment not exceeding three years; Imprisonment not exceeding three years; oror

2.2. Fine; or Fine; or

3.3. Both Both

DEFENCE?

Section 23. Section 23. No defence that the defendant No defence that the defendant (manufacturer/producer) did not act (manufacturer/producer) did not act willfully.willfully.

This suggest that offences committed under This suggest that offences committed under the Food Act 1983 may amount to the Food Act 1983 may amount to Strict Strict Liability Offences.Liability Offences.

Strict Liability Offences

1.No 1.No mens rea (mental element/intention) mens rea (mental element/intention) to commit the ‘crime’ isto commit the ‘crime’ is requiredrequired

2. Actionable 2. Actionable per seeper see

PP V PENGURUS RICH FOOD PRODUCTS SDN.BHD [1982]

Offence committed under section 11 (1) (b) Offence committed under section 11 (1) (b) of Food and Drugs Ordinance 1952:of Food and Drugs Ordinance 1952:

Selling fish floss with label attached thereto Selling fish floss with label attached thereto not describing the contents which included not describing the contents which included among others , 1.7 parts per million of among others , 1.7 parts per million of mercury.mercury.

Magistrate was satisfied that the respondent Magistrate was satisfied that the respondent had taken all had taken all reasonable steps reasonable steps in in ascertaining that the manufacture of the fish ascertaining that the manufacture of the fish floss did not contain mercury as found after floss did not contain mercury as found after analysis. analysis.

It was not reasonable to impose on a small It was not reasonable to impose on a small scale industrialist to employ a Chemist to scale industrialist to employ a Chemist to the analyse the food before marketing them.the analyse the food before marketing them.

Pendakwa Raya v Fraser & Neave (M) Sdn. Bhd. [1990]

Section 11(1) (g) of the Food and Drugs Section 11(1) (g) of the Food and Drugs Ordinance 1952:Ordinance 1952:

Sale of bottled drink containing spurious Sale of bottled drink containing spurious mattermatter

Non strict liability offence.Non strict liability offence.

Defendant/ manufacturer relied on a system Defendant/ manufacturer relied on a system which showed that it was not possible for a which showed that it was not possible for a chipped bottle or for an ant to survive the chipped bottle or for an ant to survive the process they had.process they had.

POSSIBLE DEFENCE?

Section 23. On the manufacturer that he took Section 23. On the manufacturer that he took

all all reasonable steps…reasonable steps…

REASONABLE STEPS

Compliance with relevant Compliance with relevant standards/guidelines/codes of practice:standards/guidelines/codes of practice:

GMP; GAHP;GAQP;HACCP;GAPGMP; GAHP;GAQP;HACCP;GAP

Code of Practice for Food Hygiene 1980Code of Practice for Food Hygiene 1980

TEST OF REASONABLE-MAN Presumed to have certain knowledge.Presumed to have certain knowledge.

e.g. sunlight is hote.g. sunlight is hot

thus may not good for high risk food.thus may not good for high risk food.

Consumer Protection Act 1999

PART II:PART II:

MISLEADING AND DECEPTIVE MISLEADING AND DECEPTIVE CONDUCT, FALSE REPRESENTATION CONDUCT, FALSE REPRESENTATION AND UNFAIR ADVANTAGEAND UNFAIR ADVANTAGE

(umbrella section)(umbrella section)

““False”, “Misleading” or Deceptive”:False”, “Misleading” or Deceptive”:

Includes conduct, representation or practice Includes conduct, representation or practice which is capable of leading a consumer into which is capable of leading a consumer into error.error.

Misleading Conduct

Section 9.Section 9. Eg. ..as to the nature, manufacturing Eg. ..as to the nature, manufacturing

process, characteristics, suitability for a process, characteristics, suitability for a purpose, or quantity of the goods.purpose, or quantity of the goods.

False or Misleading RepresentationSection 10 (1).Section 10 (1).

The goods are of particular kind, standard The goods are of particular kind, standard or quality…or quality…

PART X: PRODUCT LIABILITYPART X: PRODUCT LIABILITY

““Defective Product”Defective Product”

Exception: section 68 (5). Does not Exception: section 68 (5). Does not apply to agricultural produce apply to agricultural produce which has not undergone any which has not undergone any industrial process.industrial process.

Agricultural Produce:

1.1. Produce of the soil; orProduce of the soil; or

2.2. Stock farming; or Stock farming; or

3.3. Fisheries.Fisheries.

(loophole/lacuna)(loophole/lacuna)

Res Ipsa Loquitur (“the thing speaks for itself”)

Applicable in some Applicable in some negligencenegligence cases; cases;

Civil liability can arise when there is no Civil liability can arise when there is no other contravening evidence of another other contravening evidence of another likely cause, and an injury has occurred due likely cause, and an injury has occurred due to a fact or occurrence from which, if left to a fact or occurrence from which, if left unexplained, it is permissible to infer unexplained, it is permissible to infer negligence.negligence.

Carman v Smithfield Tavern FNQ Pty Ltd (2000)

The court was convinced that toothpick must The court was convinced that toothpick must have been concealed in the heated food.have been concealed in the heated food.

Principle established:Principle established:

1.Restaurateurs/food provider owe a duty of care 1.Restaurateurs/food provider owe a duty of care to their customer;to their customer;

2. The need for tighter controls in food 2. The need for tighter controls in food preparation and delivery;preparation and delivery;

3. Food suppliers and food establishments 3. Food suppliers and food establishments need to ensure that the wording of their need to ensure that the wording of their insurance coverage is broad enough to insurance coverage is broad enough to meet the potential liability of damages;meet the potential liability of damages;

4. It is useful to have adequate documentation 4. It is useful to have adequate documentation of all prepared food in case of possible of all prepared food in case of possible litigation and liability.litigation and liability.

Minimize liability…

1.Food technologists & QA personnel1.Food technologists & QA personnel

to protect the company from criminal& civil to protect the company from criminal& civil claims;claims;

2. Adequate duty of care: Utilize recommended 2. Adequate duty of care: Utilize recommended safety measures such as HACCP;safety measures such as HACCP;

3. HACCP plans and records must be revised 3. HACCP plans and records must be revised periodically as there are changes in production and periodically as there are changes in production and distribution.distribution.

4. Halal Executive/Officer?...4. Halal Executive/Officer?...

4. ADR/ Public Apology/ admit mistake/ 4. ADR/ Public Apology/ admit mistake/ outside court settlement; outside court settlement;

5. To be aware of the law of the importing 5. To be aware of the law of the importing country;country;

6. To adhere strictly to the legal 6. To adhere strictly to the legal requirements/standards/guidelinesrequirements/standards/guidelines Best Halal PracticesBest Halal Practices Halal Assurance System/TraceabilityHalal Assurance System/Traceability

Thank YouThank You