FOODSTUFFS, C0SMETICS AND DISINFECTANTS AMENDMENT BILL, 2005
BRIEFING NOTES ON THE GENERAL DISCUSSION OF THE PARLIAMENTARY PORTFOLIO COMMITTEE ON HEALTH WHICH TOOK PLACE ON 16 MARCH 2006
The proposed Amendment Bill was published in the Government Gazette by the Department of Health for public comments or representation on 26 September 2003.
- The explanatory summary of the Bill in accordance with rule 241 (c) of the rules of the National Assembly was published on 14 October 2005 in the Government Gazette, which sets out the purpose of the Bill; a discussion of the 10 clauses included in the Amendment Bill that seeks to amend the relevant sections of Act 54 of 1972; constitutional implications; and, parliamentary procedure (copy of the explanatory summary attached).
- A notice were published at the end of February 2006 calling for written submissions and verbal applications on the Amendment Bill as well as informing on the Portfolio Committee on Health to hold public hearings on 14 and 15 March 2006, which included the Amendment Bill (B35-2005) and a memorandum on the objects of the Bill.
- An informal briefing by the Director: Food Control of the Department to the members of the Portfolio Committee on Health took place on 13 March 2006 during which questions seeking clarification of and providing suggestions on the contents of the Amendment Bill were attended to, as well as many questions and comments not directly related to the Bill, but more on concerns related to food safety and hygiene in general.
SUMMARY OF THE GENERAL DISCUSSION OF THE PORTFOLIO COMMITTEE
The following is a summary of the questions posed by members of the Portfolio Committee related specifically to the contents of the Amendment Bill following the introductory presentation by the Director: Food Control, listed in order of the relevant clauses of the Amendment Bill and slides of the presentation:
- Clause 2: Whether the DG intends taking over the inspectors currently dealing with the enforcement of the Act employed by Provinces/municipalities. Response: The Department has no intention to take over the mentioned inspectors and is in this regard further guided by the National Health Act, 2003, which provides a definition for ‘municipal health services’, which, among others, include food control.
- Clause 2: Which ‘other persons’ who can be authorised as inspectors are implied. Response: Examples were mentioned of other categories of health personnel such as Environmental Health Assistants and laboratory technicians that may become involved in sampling of foodstuffs.
- Clause 2: A proposal that a category of ‘building inspectors’ be specifically included with the other mentioned categories as an inspector under the Act. Response: Indicated that at municipality level the building inspectors are responsible for the enforcement of the National Building Regulations Act, while the Environmental Health Practitioners are responsible for the regulations published under Act 54 of 1972. The two mentioned categories of workers are both employed by municipalities and they normally co-operate with regard to structural requirements for buildings e.g. the approval of building plans by the building control section only happens after taking into account the health section’s recommendations. The building inspectors will visit the building site during the construction phase, while the EHP’s will follow-up on the approval of the premises for the handling of food and the issuance of a certificate of acceptability as required by the relevant health regulations.
- Clause 3: A proposal that the stating of an amount in this section of the original text of the Act be replaced by a provision that the amount in question be determined by the DG by publishing a notice in the Government Gazette, this will prevent an amendment of the Act in future if the amount becomes inflation unrelated again. Response: Agreed fully with proposal and will follow it up with the Department’s Legal Services.
- Clause 5: Whether the Minister could, after consultation with the other relevant Departments as mentioned, ignore their inputs and continue to publish regulations on the topic in question. Response: The Department realises that the mentioned Departments have responsibilities regarding the issue involved and that the provisions of the Constitution regarding ‘co-operative governance’ provides for this not to happen.
- Clause 6: What amounts are applicable as fines now that no amounts are mentioned in the Amendment Bill. Response: The amounts as specified by the Magistrates Act and are linked to the stated periods of imprisonment.
- Clause7: Whether provision should be made to prevent a person found guilty for the first time not being punished unfairly when maybe found guilty a second time for a similar offence committed, for example, twenty years later. Response: Suggested that this be clarified with the Department’s Legal Services, an opinion was also expressed that the Criminal Procedure Act probably provide for this not to be the case.
- Clause 8: Measures to ensure that reporting takes place by those the Director-General (DG) may delegate a power or assign a duty vested in him to. Response: That this is covered by the inclusion of the reference to the Public Finance Management Act, 1999.
- Slide 2: Inclusion of the control of foodstuffs exported under the purpose of the Act in question. Response: That exportation of foodstuffs is brought into the relevant legislation by the inclusion of a definition for ‘export’ (clause 1 (d)), and the amendment of the long title of the Act to include after importation the term ‘exportation’ (Clause 9).
- Slide 7: The aspects that the Minister can make regulations on taken over from the old Health Act, 1977 only refers to foodstuffs, what about regulations related to cosmetics and disinfectants. Response: Act 54 of 1972 always provided for the Minister to make regulations related to the mentioned commodities and that regulations on cosmetics are dealt with by the Medicines Regulatory Authority and on disinfectants by the Environmental Health components of the Department, which are apparently in both instances currently under consideration.
- Slide 9: A request to explain in more detail the reasons for omitting the secrecy clause currently included in the Act and what problems were encountered in this regard. Response: The clause in question are considered unconstitutional in respect of the right of a person to have access to information in the possession of the state which is required to protect any other right, e.g. the right to the information related to the results of food samples taken by inspectors to be able to make an informed decision regarding those foodstuffs that may be detrimental to health. The Department, Provinces and municipalities were previously not allowed to inform the public, for example, via the media, of such situations and the Department consider it as essential to where necessary, inform consumers such as the case were with the recent Sudan Red incident where the brand and manufacturers names of products found to pose a health risk were made available to the media.
The following is a summary of the more general comments made by Committee members related to the Amendment Bill:
- That through the Amendment Bill it is the first time the Act is amended since the publication of the original Act in 1972 and will the amendments in question contribute to the safety of foodstuffs in general. Response: A few minor amendments were published in 1981 and that the proposed amendments will contribute significantly to the effectiveness of the enforcement thereof by the Provinces and municipalities, e.g. the appointment of inspectors, the increase in penalties, consolidating all foodstuffs related legislation under one set of legislation, delegation of powers/duties by the DG, etc.
- That although the Amendment Bill stipulates that the municipalities should attend to the enforcement of the Act, the problem is that the public is not informed in this regard and that the inspectors are not visible when it comes to enforcing the legislation in question. Response: That although there is about a 50% shortage of EHP’s employed by the district and metro municipalities based on WHO criteria, it is envisaged that the situation will improve once the current devolution of municipal health services to the mentioned categories of municipalities have been finalised.
- Whether the legislation under discussion covers (a) the conditions on food premises, and (b) which situations does it specifically apply to, for instance what about the small general dealer shops in rural areas. Response: (a) The Amendment Bill intends consolidating the foodstuffs related aspects (definitions, existing regulations and issues that the Minister can still make regulations on), included currently under the old Health Act, 1977 under Act 54 of 1977, which will result in, among others, the conditions on food premises then sorting under the Act in question. (b) The Act covers the food supply chain from after primary production on the farm namely, the manufacturing sale and importation of foodstuffs.
- A proposal that a definition for ‘import’ be included in the Amendment Bill. Response: That a definition for ‘import’ as well as ‘importation’ is already provided for in the existing Act.
- Concern that communities away from coastal areas will not benefit from the provision that the Minister can make regulations related to mollusc and fish farming. Response: The intention of the relevant provision in the Amendment Bill is not to address the developmental or economic aspects of the matter concerned, but focuses on the safety of the foodstuffs deriving from such operations and it will include also fresh fish farming which is not limited to coastal areas.
The following is a short summary of the questions asked and comments made by various members of the Committee which were not related to the contents and/or purpose of the Amendment Bill:
- Stronger focus should be on public awareness/education regarding food safety and food hygiene in general. Response: Fully supports this important aspect of an all inclusive food control programmes for the country and should be addressed at all three levels of Government.
- The requirements related to damaged tinned foodstuffs. Response: Criteria for judging whether such products are still fit for consumption or whether it should be seized, condemned and disposed of by an inspector is provided for in existing regulations.
- The hygiene conditions of street hawkers handling/selling foodstuffs. Response: The same regulations applicable to formal food premises are applicable to the site and practices of street food vendors, the Department supports programmes introduced by municipalities to train vendors in good hygiene practices and food safety has made available several training tools such as posters, pamphlets, flip-charts, etc.
- Foodstuffs passed the sell by and/or best before dates, including donations received from supermarkets. Response: Currently there is no legal requirement for a manufacturer of foodstuffs to include the information in question on its labels, this aspect is included in the Department’s new proposed draft labelling regulations which is currently prepared by the Legal Services of the Department for publication for public comment. The dates in question are, however not intended to indicate the safety status of the foodstuffs in question, but are related to the freshness thereof, which is a quality issue.
- Frozen foodstuffs that thawed as a result of, for example, the recent power failures in Cape Town. Response: The issue is also provided for in existing regulations of the Department and includes the criteria on which an inspector or shop owner can base a decision to refreeze and/or continue to use such foodstuffs, or dispose of it.