JACQUES SCHOLTZ of Glen Marais writes:
The article, Old food confiscated from shops (Express October 4) refers.
The actions taken by Ekurhuleni Metropolitan Police Department (EMPD) and the councillor were illegal and they had no authority or legislative competence to carry out and confiscate foodstuffs.
Food control is one of the nine municipal health functions (environmental health) assigned to local government in terms of the National Health Act 2003 (Act nr 61 of 2003).
Legislation utilised by the Environmental Health Department to regulate food, is the Foodstuffs, Cosmetics and Disinfectants Act, 1972 (Act 54 of 1972) (FDC Act), and the regulations promulgated thereunder. Definitions that are specified in the regulations relating to the labelling and advertising of foodstuffs in terms of the mentioned Act are:
• “Date of minimum durability” (“Best Before” or “Best Before End”) means the date which signifies the end of the period under any stated storage conditions during which the product will remain fully marketable and will retain any specific qualities for which tacit or express claims have been made. However, beyond the date the food may still be perfectly satisfactory;
• “Sell by” or “display until” means the last date of offer for sale to the consumer after which there remains a reasonable storage period at home.
• “Sell by retail” means to sell to a person buying other than for the purpose of resale, but does not include selling to a caterer for the purposes of his catering business, or to a manufacturer for the purposes of his manufacturing business.
• “Use by” (Best Consumed Before, Recommended Last Consumption Date, Expiry Date) means the date which signifies the end of the estimated period under the stated storage conditions, after which the product probably will not have the quality attributes normally expected by consumers and after which date the food should not be regarded as marketable and is only used in connection with perishable foodstuffs such as milk, meat fish and crustaceans.
In terms of the legislation, there is no definition for Expired Food except for “Use by” and the expression, phrase or statement should therefore not be used in terms of food control as is currently being misrepresented.
The legislation also specifies in Regulation 12 (1) that no person shall import, manufacture, sell, distribute or donate a foodstuff unless a date marking is clearly indicated on the label or container of such foodstuff, except those foodstuffs indicated in Annexure 4.
The only transgression in terms of date marking is that: The date marking may not be removed or altered by any person.
Foodstuffs may only be removed, seized, confiscated by an inspector (environmental health practitioner) to provide proof of a contravention in terms of the Act (FDC Act).
Foodstuff that is displayed for sale that is past the sell by or best before end dated is not a transgression in terms of the act and the date is only there for quality purposes.
Fake food is produced and displayed by certain Japanese and Chinese shops and is made from plastic and cannot be eaten or consumed and is only meant for display purposes to show what the real food product will look like.
Counterfeited food, on the other hand, is controlled by the Department of Trade and Industry in terms of the Counterfeit Goods Act, 1997 (Act 37 of 1997).
Foodstuff in this regard can only be confiscated by an inspector, that means any person who under or by virtue of section 22 and has been appointed as or designated to be an inspector for the purposes of this Act by the Minister of Trade and Industry, as well as (a) any police official as defined in section 1(1) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) holding the rank of sergeant or a higher rank; (b) the Commissioner for Customs and Excise and any official contemplated in section 15(9), in performing their functions in the circumstances contemplated in section 15(4); (viii).
The counterfeited food/goods may only be confiscated in the presence of the owner or agent of intellectual property right, in respect of the protected goods or as an importer, exporter or distributor thereof, after a complaint has been laid and investigated by the Department of Trade and Industry.
Communities need to be educated in this regard before illegal action is taken against poor shop owners that are also trying to make a living and support their families. They are also creating jobs.
