Food is a fundamental human need. Despite this fact the recent reports of the World Health Organization, provides that approximately 2 million people die due to unsafe food annually. As for this every human being must be awakened about the issue of food safety to ensure that the food on their plate is safe to consume. In recent week’s there were some cases reported with regard to the matter of food safety. Furthermore, there is a growing concern about food safety in Sri Lanka as a result of the Covid-19 pandemic. Most of the shops, restaurants, hotels, and food supply places were shut down for months and in the near future those places are going to be reopened. Hence customers should always be vigilant and tactful when they are going to buy something suitable to consume for themselves and also to their children.
In this article attention may be initially drawn to the primary legislation of food safety and hygiene in Sri Lanka i.e. Food Act No.26 of 1980. This act came into force in 1981 and it has been amended subsequently by Act number Food (Amendment) Act No.20 of 1991 and Food (Amendment) Act No.29 of 2011. According to the preamble of the act, the food act was introduced to regulate and control the manufacture, importation, sale, and distribution of food, to establish a Food Advisory Committee, to repeal the Food and Drugs Act of 1949 and to provide for matters connected therewith or incidental thereto. It has four parts as;
- Prohibition in respect of food
- Legal Proceedings
Section 33, Interpretation provision of the Food Act defines “food” as “any article manufactured, sold or represented for use as food or drink for human beings and includes any article which ordinarily enters into or used in the composition or preparation of food.” Under Part I of the food act, it discusses the prohibition in respect of food related to Additives, Fitness for Human Consumption, Cleanliness, Adulteration, Sanitary Conditions.
Section 2 (1) of Food Act indicates that, No person shall manufacture, import, sell or distribute any food,
- That has upon it any natural or added deleterious substance which renders it injurious to health,
- That is unfit for human consumption,
- That consists in whole or in part of any unclean, putrid, repugnant, decayed, decomposed or diseased animal substance or decayed vegetable substance or is insect infested,
- That is adulterated,
- That has in or upon it any added substance in contravention of the provisions of this Act or any regulation made thereunder, or
- In contravention of the provisions of this Act or any regulation made thereunder.
This attitude is further illustrated by the decision in Sena Mills Refineries Pvt Ltd v Director General of Customs (CA (Writ) Application No.158/2016 decided on 06.02.2017). It was held that “Thus, it could be observed that it is not open for anyone to import any item that falls under the definition of “food” in the Act, if that item inter alia is unfit for consumption or is adulterated”.
Section 2(2) says that no person shall manufacture, prepare, preserve, package or store for sale any food under insanitary conditions. According to section 2(2), no person shall manufacture, prepare, preserve, package or store for sale any food under insanitary conditions. As well as under section 2(3) no one shall import, sell or distribute any food manufactured, prepared, preserved, packaged or stored for sale under insanitary conditions. Public Health Officers are in operation with regard to the above incidents and people can inform them when matters arise about food safety.
Section 3 and 4 deal with labeling, packaging, and advertising of the food. Labeling, packaging, selling or advertising any food in a manner that is false, misleading, deceptive or likely to create an erroneous impression, regarding its character, value, quality, composition, merit or safety shall be prohibited by Sub Section 3(1).
Section 3(2) provides that When any food is not labelled or packaged as required by the regulations made under this act or is labelled or packaged contrary to such conditions shall be considered as contrary to subsection 3(1). Whereas Chief Food Authority may prohibit the food that contravened the provisions of subsection 3(1) after giving the labeller or advertiser of any food an opportunity of being heard (subsection 3(3)).
Where a standard is prescribed for any food, labelling, packaging, selling or advertising any food which does not conform to that standard in such a manner as is likely to be mistaken for the prescribed food standard, shall be prohibited by the section 4 of the food act.
Section 5 of the Food act has introduced prohibition of the food which has been spoil or rendered unfit for human consumption. Such kind of food shall not offer for sale, expose for sale or sell for use as animal food or for other purposes except with the permission of and in accordance with the directions issued by the Chief Food Authority or such other person authorized by him in writing in that behalf.
Some activities that cannot be performed without licensing have been mentioned in section 7, subsection 7(1) declares that “No person shall manufacture, prepare, preserve, package, store or sell any food in any premises unless such premises has been licensed by the relevant Food Authority who shall be licensing authority”.
The principle of warranty has been included in section 6 in spite of the above prohibition sections. The section only adds the liability to the vendor having explained that unless the warranty (prescribed form of the nature substance and quality of the food) is given by a manufacturer, distributor, commissioner agent or a dealer to the vendor, the food shall not be sold to the vendor (subsection 6(1)). If there is a description about the nature and quality of the substance and quality of the food in a bill, invoice or cash memorandum given by a manufacturer, distributor, commissioner agent or a dealer that shall be deemed to be a warranty under section 6(1). Section 6(3) clearly points out that false warranty shall not be given in the above occasions.
Part II of the Food Act includes provisions for establishment of Administration,
- Establishment of a Food Advisory Committee (FAC).
- Designating Director General of Health Services as the Chief Food Authority (CFA).
- Providing for Food Authorities under the Food Act.
Director General of Customs for imported foods, Chief Medical Officer of Health (CMOH) for the Colombo Municipal Area and Local Authorities (Urban Councils and Pradeshiya Subhas etc.)
Section 13 demonstrates the Authorized officer of a food authority as Medical Officer of Health, Food and Drug Inspector, Food Inspector, Public Health Inspector and in relation to examination and seizure of meat, any Veterinary Surgeon. As mentioned in subsection 13(2), Where the Food Authority is the Excise Commissioner or the Principal Collector of the Customs, any person shall be an authorized officer in writing by the Excise Commissioner or the Principal Collector of the Customs due to the situation. Every Authorized officer shall exercise the powers of police officer in terms of the Criminal Procedure Act of Sri Lanka.
The powers of Authorized Officer have been mentioned in the Section 14 as follows.
- At any reasonable time enter any place where he believes any article is manufactured, prepared, preserved, packaged or stored and examine any such article and take samples thereof and also examine anything that he believes is used for the manufacture, preparation, preservation, packaging or storing of that article.
- For the purpose of search, stop or death any vehicle in which he believes that any article is being conveyed, search that vehicle and examine such article and take samples of that article.
- Open and examine the receptacle or package that he believes to contain any article.
- Where the Authorized officer is a Medical Officer of Health or a person authorized by the Excise Commissioner or the Principal Collector of Customs under section 13(2), examine any books, documents or other records found in any place mentioned in paragraph (a) that he to contain any information relevant to the carrying into execution or the enforcement of this act with respect to any article and make copies thereof or take extracts therefrom; and
- Seize and detain for such time as may be necessary any article by means of or in relation to which he believes any provision of this Act or regulation made thereunder has been contravened.
How to act and what steps and procedures to be followed after seizing is discussed in the section 15 of the act. Having seized, Authorized officer may destroy or dispose such article where the authority is satisfied that there has been a contravention of the provisions of this act or any regulation. But the written consent of the owner or the person in possession of such article at the time it is seized, is needed to the destruction (subsection (1)).
Anyhow where the owner or the person in possession of such articles does not consent in writing to the destruction of such article. The authority shall release such article believing that provisions of this act or any regulations made there under have not been contravened. Section 15(2)(a) But when the authority is satisfied with the contravention of any provisions of this act or regulations, with notice to the owner or the person in possession of the article, he should inform the Magistrate’s court having jurisdiction over the area in which the offence was committed (15(2)(b)). After furnishing the information to the court under subsection 15(2)(b), if the owner or the person in possession of article is guilty of contravening any provisions of this act or regulations made there under, the court shall order the Authority to dispose such articles appropriately. But in the occasions where the offender is not known or cannot be found, such article shall be forfeited to the Authority without the institution of the proceedings (15(2)(3)(a). According to subsection (15(2)(3)(b) if the court decides that the owner or the person in possession of the article is not guilty, order should be given to release such article to the owner or the person in possession of the article.
Section 16 deals with analysis and any food, any portion or any sample taken by the Authorized Officer shall be submitted to the Approved Analyst for analysis or examination unless destroyed under section 16(1).
Part III of the Food Act provides for the nature of offences under the Food Act and punishments. The jurisdiction is given to the Magistrate court to hold the trials under the Food Act. Offences under this act have been included in Section 18 and it consists mainly three types of offences.
- The offence involves injury to the public health.
- The offence of contravention with subsection (5) or subsection (9) of section 14.
- Any other offence.
Punishments are also been clearly made in section 18.
Section 18(1)(a)– imprisonment for a term not less than six months and not exceeding three years with fine not less than Rs.5,000/- and not exceeding Rs.10,000/- (According to the act these two ways of punishments should be ordered. This is a wide way of thinking to ensure the public safety.)
Section 18(1)(b)– imprisonment for a term not less than three months and not exceeding one year and also fine not less than Rs.5,000/- and not exceeding Rs.10,000/- . (According to the act these two ways of punishments should be ordered.)
- For the first offence – fine not less than Rs.500/- and not exceeding Rs.3,000/- or imprisonment for a term not exceeding six months or to both such fine and imprisonment.
- For a second or subsequent offence – imprisonment for a term not less than three months and not exceeding one year and also fine not less than Rs.1,000/- and not exceeding Rs.5,000/-.
It is apparent that the latter punishments are lenient than the former punishments.
In Raigam Marketing Services (Pvt) Ltd vs R.A. Prageeth Jaliya Jayathilaka (Authorized officer under the Food Act and Public Health Inspector case), stated that “ When the primary necessaries of the life are sold without any concern for the health and well-being simply to make a profit, the only protection is the Food Act.”
Apart from the above mentioned punishments, section 18(2) has introduced another way of punishment as canceling of the license or certificate of registration and publishing in newspaper (Publishing the convicted person’s name, address, offence and the punishment imposed for that offence). But in this section, it is not compulsory to perform by court since the act has used the word ‘may’ not ‘shall’. The result is that a wide discretionary power is offered to the court regarding this provision. This discretionary power can also be noticed in section 18(3)(a). Where a person convicted of the offence using any premises without first obtaining a certificate of registration in respect thereof in terms section 7(1) of this Act, the Magistrate may order considering the application made by relevant food authority or authorized officer for the closure of such premises or the discontinuance of the trade or business carried on until a certificate of registration is obtained. Where such person disobeys section 18(3)(a), Magistrate shall forthwith issue an order to Fiscal of such court requiring and authorizing such Fiscal to close such premises and discontinue trade or business carried on.
It has been established in section 20 that when prosecuting for an offence under this act or any regulation it shall be instituted by an Authorized Officer and within the three months from the date of detection of that offence. The relief has been conferred in section 21(1) to the accused to prove that some other person is guilty of the offence. Defenses have been set out in section 22 which could be used to prove innocence of the accused.
Having presented a short study on Food Act of Sri Lanka the main objective was to raise awareness on Food safety to the public about the issue of food safety since food is the key factor to protect the public from health risks related with food. Various countries have instituted legal bodies to ensure food safety, at national, provincial, or local government levels. Even in Sri Lanka apart from the food Act many other legislation’s have been implemented to ensure food safety. Therefore, be aware of the laws, know your rights and be alert!
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24/05/2020 foodieson.com by @poornimasenarath, Attorney-at-Law