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3 BASIC ELEMENTS:

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.

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3 BASIC ELEMENTS:

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  1. LAWS AND REGULATIONS ON HALAL PRODUCTION IN MALAYSIA AND MANUFACTURER’S LIABILITY IN FOOD PRODUCTIONFEDERATION OF MALAYSIA MANUFACTURERS (FMM),19 OCT 2009, SEBERANG JAYA, PULAU PINANG

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

  3. 3 BASIC ELEMENTS: Negligence: failure to exercise reasonable care to prevent product defects arising out of manufacturing process;

  4. Breach of Warranty: failure to fulfill the terms of a claim or promise concerning the quality of the product;

  5. Strict Liability: seller/manufacturer liable for a defective product even if negligence or breach of warranty do not apply

  6. NEGLIGENCE LEGALLY SPEAKING; The failure to meet a standard of behaviour established to protect society against unreasonable risk. The cornerstone of tort liability and a key factor in most personal injury and property-damaged trials.

  7. LIABILITY CRIMINAL CIVIL FOOD ACT 1983

  8. Malaysian Law • Penal Code 1976 Section 272: Adulteration of Food or Drink which is intended “…intending to sell such food or drink…or knowing it to be …” shall be punished with imprisonment not exceeding six month/fine to the amount of two thousand/both

  9. Section 273. Sale of Noxious food (unfit for food/drink) imprisonment not exceeding six month/fine two thousand/both

  10. Food Act 1983 Section 13 (1). Food injurious to Health on conviction: 1.Fine not exceeding hundred thousand; or 2.Imprisonment for a term not exceeding ten years; or 3.Both.

  11. Section 13A (1). Food Unfit for Human Consumption On conviction: • Fine not exceeding fifty thousand; or • Imprisonment not exceeding eight years; or • Both

  12. 13A (2). Prepare or sells food that contains any matter foreign to the nature of such food; • Fine not exceeding thirty thousand; or • Imprisonment not exceeding five years; or • Both

  13. Section 13A (3). Food in a damaged package; • Fine not exceeding thirty thousand; or • Imprisonment not exceeding five years; or • Both

  14. Section 13B. No person shall prepare or sell adulterated food. (4). Contravention of the provision; • Twenty thousand; or • Imprisonment not exceeding five years ;or • Both

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

  16. Section 15. Labelling Not in a manner prescribed by the standard: • Imprisonment for three years/ or • Fine, or • Both

  17. Section 16. False Labelling That is false, misleading or deceptive as regards its character, nature, value, substance, quality, composition, merit or safety, purity.etc • Imprisonment not exceeding three years; or • Fine; or • Both

  18. Section 17. Advertisement That cause any person to believe that it relates to such food, or to any ingredient or constituent thereof… • Imprisonment not exceeding three years; or • Fine; or • Both

  19. DEFENCE? Section 23. No defence that the defendant (manufacturer/producer) did not act willfully. This suggest that offences committed under the Food Act 1983 may amount to Strict Liability Offences.

  20. Strict Liability Offences 1.No mens rea (mental element/intention) to commit the ‘crime’ isrequired 2. Actionable per see

  21. PP V PENGURUS RICH FOOD PRODUCTS SDN.BHD [1982] Offence committed under section 11 (1) (b) of Food and Drugs Ordinance 1952: Selling fish floss with label attached thereto not describing the contents which included among others , 1.7 parts per million of mercury.

  22. Magistrate was satisfied that the respondent had taken all reasonable steps in ascertaining that the manufacture of the fish floss did not contain mercury as found after analysis. • It was not reasonable to impose on a small scale industrialist to employ a Chemist to the analyse the food before marketing them.

  23. Pendakwa Raya v Fraser & Neave (M) Sdn. Bhd. [1990] Section 11(1) (g) of the Food and Drugs Ordinance 1952: Sale of bottled drink containing spurious matter

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

  25. POSSIBLE DEFENCE? Section 23. On the manufacturer that he took all reasonable steps…

  26. REASONABLE STEPS Compliance with relevant standards/guidelines/codes of practice: GMP; GAHP;GAQP;HACCP;GAP Code of Practice for Food Hygiene 1980

  27. TEST OF REASONABLE- MAN • Presumed to have certain knowledge. e.g. sunlight is hot thus may not good for high risk food.

  28. Consumer Protection Act 1999 PART II: MISLEADING AND DECEPTIVE CONDUCT, FALSE REPRESENTATION AND UNFAIR ADVANTAGE (umbrella section)

  29. “False”, “Misleading” or Deceptive”: Includes conduct, representation or practice which is capable of leading a consumer into error.

  30. Misleading Conduct • Section 9. • Eg. ..as to the nature, manufacturing process, characteristics, suitability for a purpose, or quantity of the goods.

  31. False or Misleading Representation Section 10 (1). The goods are of particular kind, standard or quality…

  32. PART X: PRODUCT LIABILITY “Defective Product” Exception: section 68 (5). Does not apply to agricultural produce which has not undergone any industrial process.

  33. Agricultural Produce: • Produce of the soil; or • Stock farming; or • Fisheries. (loophole/lacuna)

  34. Res Ipsa Loquitur (“the thing speaks for itself”) Applicable in some negligence cases; Civil liability can arise when there is no other contravening evidence of another likely cause, and an injury has occurred due to a fact or occurrence from which, if left unexplained, it is permissible to infer negligence.

  35. Carman v Smithfield Tavern FNQ Pty Ltd (2000) The court was convinced that toothpick must have been concealed in the heated food. Principle established: 1.Restaurateurs/food provider owe a duty of care to their customer; 2. The need for tighter controls in food preparation and delivery;

  36. 3. Food suppliers and food establishments need to ensure that the wording of their insurance coverage is broad enough to meet the potential liability of damages; 4. It is useful to have adequate documentation of all prepared food in case of possible litigation and liability.

  37. Minimize liability… 1.Food technologists & QA personnel to protect the company from criminal& civil claims; 2. Adequate duty of care: Utilize recommended safety measures such as HACCP; 3. HACCP plans and records must be revised periodically as there are changes in production and distribution. 4. Halal Executive/Officer?...

  38. 4. ADR/ Public Apology/ admit mistake/ outside court settlement; • 5. To be aware of the law of the importing country; • 6. To adhere strictly to the legal requirements/standards/guidelines • Best Halal Practices • Halal Assurance System/Traceability

  39. Thank You

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