Compliance with food laws and regulations is essential for ensuring public health and safety in Malaysia. This article explores the criminal ramifications of selling prohibited and harmful foods, such as poisonous pufferfish.
By examining key provisions of the Food Act 1983 and Food Regulations 1985, we shed light on the strict regulations governing food sales in Malaysia. Understanding the gravity of such violations and the potential penalties is vital for all individuals and businesses involved in the food industry. Emphasizing the importance of adhering to food safety standards helps protect consumers and upholds public health standards.
Malaysian Laws on Food Safety
At the core of Malaysia’s food safety framework lie the Food Act 1983 and its subsidiary laws, in particular, the Food Regulations 1985. These laws are designed to protect the public from health hazards and fraudulent practices in the production, sale, and consumption of food, as well as related matters. The primary objective, as stated in the preamble of the parent act, is to ensure the well-being of the people.
According to section 1(1) of the Food Act 1983, these regulations apply uniformly across Malaysia. All food items available for sale within the country, irrespective of their origin, must adhere to the provisions outlined in this Act.
Food Act 1983
The Food Act 1983 is an important piece of legislation that aims to ensure the safety and quality of food products consumed within the country. It was enacted to address public health concerns related to food safety, hygiene, and labelling.
The Food Act 1983 outlines the duties and responsibilities of food business operators, emphasizing the importance of registering their premises and adhering to strict food safety and hygiene standards. It also empowers regulatory authorities to conduct inspections, sampling, and testing of food products to verify compliance with the law. The Food Act 1983 also addresses issues related to food additives, contaminants, and labelling requirements to provide consumers with accurate and relevant information about the food they purchase. Violations of the Food Act 1983 may lead to penalties, fines, and potential imprisonment.
To ensure that the foods supplied in the market are safe for human consumption, the Food Act 1983 criminalises the sale of poisonous and unsafe foods, as well as the misrepresentation of the nature and quality of foods. A vendor will commit an offence if he or she does any of the following:
(a) Sells food containing substances injurious to health (as provided in section 13);
(b) Sells food unfit for human consumption (as provided in section 13A);
(c) Sells adulterated food (as provided in section 13B);
(d) Sells food not of the nature, substance or quality demanded (as provided in section 14);
(e) Sells food whose label does not comply with the prescribed standard (as provided in section 15); or
(f) Sells food which has a false label (as provided in section 16).
Food Regulations 1985
The Food Regulations 1985 is a crucial supporting regulation for ensuring food safety in Malaysia. These regulations were established under the authority of section 34 of the Food Act 1983, which grants the Ministry of Health the power to make regulations related to food safety.
The Food Regulations 1985 provides comprehensive and detailed rules and procedures covering various aspects of food safety, including sampling, labelling, food additives, nutrient supplements, food packaging, and incidental constituents.
For instance, section 11 of the Regulations mandates that every package containing food for sale must bear a label that states the description of the food, including the common name of its principal ingredients. This requirement ensures transparency and clarity for consumers about the contents of packaged food products.
The Regulations are further supplemented by twenty-seven schedules, each addressing specific aspects of food safety. For example, the First Schedule prescribes written warranties for certain food items like canned food and cereal-based products for infants and children. The Fifth Schedule outlines the requirement for date marking on products such as biscuits, bread, pasteurized fruit juice, and pasteurized vegetable juice.
Additionally, the Eighth Schedule of the Food Regulations 1985 strictly prohibits the use of certain flavouring substances, such as aloin, berberine, and cade oil, that are harmful or likely to be injurious to health in food products.
Under the Food Regulations 1985, a food vendor is also forbidden from:
(a) Importing, manufacturing, advertising for sale or selling or introducing into or on any food additive other than a permitted food additive (as provided in Regulation 19);
(b) Selling any food to which nutrient supplement other than a permitted nutrient supplement has been added (as provided in Regulation 26(4));
(c) Importing, preparing or advertising for sale or selling any food containing any incidental constituent, except as otherwise specified in regulations 38, 39, 40 and 41 (as provided in Regulation 37(3))
(d) Importing, preparing or advertising for sale or selling any food ready for consumption that is contaminated with pathogenic microorganisms (as provided in Regulation 39(2))
(e) Importing, selling, exposing or offering for sale or delivery, any food intended for human consumption which contains the drugs as set out in Table II to the Fifteenth A Schedule (as provided in Regulation 40(5));
(f) Importing, preparing or selling any food containing pesticide residue in a proportion greater than the proportion specified for that food in relation to that pesticide residue as set out in the Sixteenth Schedule (as provided in Regulation 41(3)); and
(g) Importing, preparing or advertising for sale or selling any food that has been accidentally exposed to ionizing radiation (as provided in Regulation 396(2)).
Regulatory Agencies In Malaysia
There are a number of regulatory agencies and departments that shoulder the mandate for food safety in Malaysia.
1. Ministry of Health
The Ministry of Health is empowered to make regulations for the better carrying into effect of the purposes and provisions of the Food Act 1983 as provided in section 34. For instance, the Ministry of Health is vested with the power to promulgate regulations in relation to the prohibition of the sale, advertisement or importation or exportation of any food. The Ministry of Health is also armed with the authority to take legal action against individuals or businesses that are found to be in violation of food safety regulations, such as to order the closure of food premises due to unhygienic conditions.
2. Food Safety and Quality Division
The Food Safety and Quality Division under the Ministry of Health Malaysia plays a key role in the implementation of an active food safety programme. This includes routine compliance, sampling, food premises inspection, food import control activity and licensing of specified food substances required under Food Act 1983 and Food Regulations 1985. The Food Safety and Quality Division operates a number of programme and initiatives to raise public awareness of food safety. One example would be the establishment of the International Food Safety Training Centre (IFSTC) Malaysia which provides a short-term training programme in the area of food safety and quality for the local and global public, specifically for the food industry.
3. Malaysian Quarantine and Inspection Services
The Department of Malaysian Quarantine Inspection Services is a regulatory body established under the Ministry of Agriculture and Agro-Based Industry Malaysia. It is tasked to inspect and monitor all imports and exports of food products such as fish, agricultural produce, animals and carcasses at entry points and quarantine stations to ensure compliance with food safety laws both on international and national levels. It is responsible for the issuance of permits for the importation and exportation of live animals and animal products under the legislation of the Malaysian Quarantine and Inspection Services Act 2011.
4. Department of Veterinary Services
The Department of Veterinary Services, a Federal Government agency under the Ministry of Agriculture Malaysia, is a regulatory agency that is in charge of regulating the use of veterinary drugs in food-producing animals. It aims to ensure that the resulting food products are safe for human consumption. The Department of Veterinary Services plays a crucial role in controlling, preventing and eradicating animal and zoonotic diseases. It conducts inspections of meat processing plants and other food production facilities to satisfy hygiene and safety requirements.
Penalties For Selling Prohibited Foods
A person who is found guilty of the sale of prohibited foods may be penalized with a fine, imprisonment or both. For instance, any person who sells food that contains substances injurious to health may upon conviction be liable to a fine not exceeding RM100,000 or to imprisonment for a term not exceeding 10 years, or both under section 13(1) of the Food Act 1983.
A person who sells food that is unfit for human consumption also commits a criminal offence and may be punished with a fine not exceeding RM50,000 or with imprisonment for a term not exceeding 8 years, or both. A person who prepares or sells adulterated food is in contravention of section 13B of the Food Act 1983 and may be punished with a fine not exceeding RM20,000 or to imprisonment for a term not exceeding 5 years, or both. Pursuant to section 14 of the Food Act 1983, any person who sells any food which is not of the nature, not of the substance, not of the quality demanded by the purchaser is said to have breached such provision and shall be liable for imprisonment for a term not exceeding 5 years or to fine or to both.
If a food vendor is found to have sold food whose label does not comply with the prescribed standard or that the food is falsely labelled, he may be liable to imprisonment for a term not exceeding three years or to fine or to both upon conviction under sections 15 and 16 of the Food Act 1983 respectively.
If the sale of prohibited food results in injury or death, the vendor may be slapped with criminal charges under the Penal Code. Section 337 of the Penal Code provides that any person who causes hurt to another person by doing any act so rashly or negligently as to endanger human life or the personal safety of others, may be punished with imprisonment for a term that can extend up to six months, or with a fine, or both. Section 337 of the Penal Code reads:
337. Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment for a term which may extend to six months or with a fine which may extend to one thousand ringgit or with both.
In the event a food business operator negligently sells poisonous food which results in the death of its consumers, he or she may upon conviction be punished with imprisonment for a term that can extend up to two years, with a fine, or both under section 304A of the Penal Code. Section 304A states:
304A. Whoever causes the death of any person, by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment for a term which may extend to two years or with a fine or with both.
Offence under Section 13 of the Food Act 1983
The sale of poisonous food is a violation of Section 13(1) of the Food Act 1983. Under this section, any person who prepares or sells any food that has in or upon it any substance which is poisonous, harmful or otherwise injurious to health, commits an offence.
To sustain a charge under section 13(1) of the Food Act 1983, the prosecution must prove the following elements:
(a) That the article sold falls within the definition of “food” under Section 2 of the Food Act 1983;
(b) That the food contains a substance which is poisonous, harmful or otherwise injurious to health; and
(c) That the accused was in charge of the preparation or the sale of the food.
On the first point, only articles that fall within the definition of “food” as provided in section 2 will be caught under the Food Act 1983:
“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 and preservation of any food or drink and includes confectionery, chewing substances and any ingredient of such food, drink, confectionery or chewing substances.
To illustrate, in the case of Chuang Hock Meng @ Chung Hock Meng v Pegawai Kesihatan Daerah Hulu Langat Kajang, Selangor Darul Ehsan & Anor [2002] 4 MLJ 27, the court held that although live pigs can be for human consumption, it could not be considered as an article that could be used in the composition, preparation or preservation of any food as defined in section 2.
Under section 13(2) of the Food Act 1983, an objective approach is taken when determining whether any food is injurious to health. Regard is given not only to the probable effect of that food on the health of a person consuming it, but also to the probable cumulative effect of that food on the health of a person consuming it in ordinary quantities.
Defence of Reasonability
A person who is charged under the Food Act 1983 cannot escape criminal liability simply by saying “I didn’t mean to”. However, section 23 does provide a valid defence of having taken “all reasonable steps” to ensure that the food sold is safe. Section 23 reads:
23. In a prosecution for selling any food contrary to the provisions of this Act or of any regulation made thereunder it shall be no defence that the defendant did not act wilfully unless he also proves that he took all reasonable steps to ascertain that the sale of the food would not constitute an offence against this Act or against any regulation made thereunder.
A case illustrative of this point is Public Prosecutor v Pengurus, Rich Food Products Sdn Bhd [1982] 1 MLJ 302 where the accused, the manager of Rich Food Products Sendirian Berhad, was charged under section 11(1)(b) of the Sale of Food and Drugs Ordinance 1952 (replaced with section 15 of the Food Act 1983) for selling fish floss with a label that its contents contained 1.7 parts per million of mercury.
The court accepted the chemist’s evidence that the high content of mercury found in the floss came from the fish, as the other ingredients were used in their natural state. The accused explained that the fish and the other ingredients were purchased from the open market.
The court found that it was not reasonable to impose on a small-scale industrialist as the accused to employ a chemist to analyse the food she produced before marketing them. Justice Mohd Yusoff Muhamed held that the accused had taken all reasonable steps in ascertaining that the manufacture of the fish floss did not contain mercury.
Cases in the News
Food poisoning is a perennial health problem in Malaysia. According to the Ministry of Health, the fatality rate of food poisoning in 2016 was approximately 0.041/per 100,000 population.
Some species of pufferfish flesh (known in Japanese as fugu) can be lethally poisonous to humans due to its tetrodotoxin. Fugu is a high-risk delicacy and must be carefully prepared to remove the pufferfish’s toxic parts and to avoid contaminating the meat. However, accidents happen and consumers in Malaysia have fallen ill or died from eating contaminated fugu.
On 25 March 2023, two elderly persons from Kampung Chamek in Paloh, Johor died after eating pufferfish. It was reported by CNA that Mdm Lim Siew Guan experienced shivers and shortness of breath shortly after eating the pufferfish. Mr Ng Chuan Sing displayed the same symptoms about an hour later. Mdm Lim died that same day while Mr Ng succumbed to the poisoning two weeks later. Following the tragedy, the health director-general Dr Noor Hisham Abdullah revealed that there had been 58 pufferfish poisoning incidents reported in Malaysia involving 18 deaths between 1985 and March 2023.
In Kedah, there was a food poisoning outbreak when nine people fell ill after eating Laksa Kebok on 4 October 2018, as reported by Food Safety News. Tragically, two people died. Public concerns led the health authorities to close the restaurant due to a possible Salmonella enterica serovar Weltevreden contamination. Investigations revealed that storing fish and laksa dough together might have caused harmful microorganisms to grow. Health facilities were alerted to watch for similar cases, and the premises’ owner received a notice that reopening would be permitted only upon meeting food and hygiene regulations.
In 2011 in Penang, as reported by the National Library of Medicine, a goat farm owner who drank and sold unpasteurized goat’s milk fell seriously ill with brucellosis, a fever-causing disease. From 2011 to 2012, 79 people who consumed the farmer’s goat milk fell sick with brucellosis. Unpasteurized milk may contain harmful microorganisms such as Brucella sp. and Coxiella burnetii, which can lead to health problems when consumed by humans. As a result, the farmer’s goats were culled to prevent further spread of the disease under the Brucellosis Eradication Programme by the Department of Veterinary Services.
The above incidents demonstrate the importance of abiding by the food safety standards in the Food Act 1983 and its subsidiary regulations in order to avoid tragic consequences. Foodborne illnesses can be life-threatening if left untreated and may even result in death.
Tips for Compliance
In order to ensure adherence to food safety regulations, individuals and food business operators should only source safe and hygienic prepared food and ingredients from reputable suppliers who comply with all food safety regulations. The public is urged to check for certification or accreditation from relevant authorities such as the Ministry of Health, the Department of Agriculture, and the Malaysian Quarantine and Inspection Services.
Food business operators are encouraged to keep accurate records of all food products and ingredients, including their source, handling and distribution. This will help in traceability and to prove sources and preparation procedures in case of any issues with the food products.
Food manufacturers should ensure that all food products are properly labelled with information such as the ingredients, nutritional information, and allergen information. This would assist consumers in making informed choices and guarantee compliance with food labelling regulations.
Proper hygiene practices are essential in the handling of food products to prevent contamination. All surfaces and equipment such as cutting boards, knives, and utensils that come into contact with food products should be properly cleaned and sanitized in accordance with documented standard operating procedures. All waste, including food scraps and packaging materials, ought to be disposed of properly to prevent contamination and attraction of pests.
Last but not least, food business operators are advised to be prepared for inspections and investigations. Upon request, cooperation must be given to the relevant authorities by granting access to premises, records, and other information relating to the purchase, sale, or distribution of food products to show food safety and compliance with Malaysian food laws and regulations.
Conclusion
Adherence to food safety regulations is paramount to ensure that the food supply chain operates safely and that consumers are protected from the risks of foodborne illness. Criminal penalties such as fines and imprisonment are put in place as a deterrent for individuals and businesses who may consider engaging in negligent or unlawful activities that could compromise public health. All individuals and businesses involved in the food industry should abide by food safety legislation at all times to ensure that public health and food safety in Malaysia are kept in check.
By Raymond Mah and Chew Jie Xi
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
