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HEALTH PORTFOLIO COMMITTEE
14 March 2006
FOODSTUFFS, COSMETICS AND DISINFECTANTS AMENDMENT BILL: HEARINGS
Acting Chairperson: Ms M Madumise (ANC)
Documents handed out:
Foodstuffs, Cosmetics and Disinfectants Amendment Bill [B35-2005]
PrintMedia South Africa submission
Unilever South Africa submission
The Committee considered the three written submissions received on the Bill. The Woolworths submission was not in favour of the extensive powers granted to medical practitioners and veterinarians (vets) in the proposed Section 15(d)(8), and Members agreed. The Department assured the Committee that the regulations would stipulate that suitably qualified personnel would perform the function, but would reconsider the provision. The second concern was that foodstuffs suspected of being unsound would immediately be removed from the shelves and destroyed. Print Media South Africa (PMSA) wanted the definition of ‘appliance’ to be extended to include activities such as the display and sale of foodstuffs, cosmetics and disinfectants, and argued that the proposed Sections 15(n)(a) and 15(n)(l) of the Principal Act constituted a violation of the right to freedom of expression by the Minister. Both the Department and the Committee disagreed with the concerns raised, because the provisions dealt with the hygiene of the premises on which foodstuffs were located.
Unilever South Africa argued that Section 16 of the Principal Act should not be repealed because it would allow Department officials to unscrupulously disclose confidential information about the investigations into foodstuffs. The Department disagreed, and the State Law Advisor added that the concern would be covered by the Promotion of Access to Information Act.
The Inkatha Freedom Party (IFP) strongly urged for a regulation that required retailers to indicate to children upfront that certain foods were less healthy than others, because parents and teachers were clearly not being assertive enough in educating children about unhealthy foods.
The Acting Chairperson apologised for the absence of the Chairperson, Mr L Ngculu (ANC). She informed the Committee that only three written submissions had been received.
The Acting Chairperson read through the Woolworths submission. She requested the Department to respond to the first point that medical practitioners and vets should not be allowed to perform the functions stipulated.
Mr A Pretorius, Department of Health Director: Food Control, felt that firstly, the provision in the Bill did not stipulate that vets and medical practitioners would be authorised to "seize, detain or destroy" the unsound or unwholesome foodstuffs, as it only stated that the municipality now had the power to authorise them if there were such persons in the employ of the municipality. The Bill did state that they would only be authorised once the municipality was satisfied they were sufficiently qualified.
Furthermore, he disagreed with the assertion that vets were not the appropriate professionals to decide whether the foodstuffs were unsound or unwholesome. The provision dealt with diseased animals, regarding which he believed vets were perfectly suited to make such a decision. Secondly, there were separate regulations that dealt with the way in which food was condemned and destroyed. It was not within the purview of an amendment Bill to deal with that.
Dr A Luthuli (ANC) felt that the powers granted to medical practitioners in the provision, exceeded their area of expertise. Mr Pretorius responded that those were the two categories of healthcare workers taken from Section 54 of the old Health Act. The provision referred to the Head of the Health Department within the municipality, who would be a qualified medical practitioner. In some instances, the municipality allowed that officer to sign the certificates for the condemnation of product. It was important to remember that that person would not specifically inspect the foodstuff etc. In his opinion, it would not be problematic to delete the words "medical practitioner" because the section in the Principal Act already referred to "or other person considered fit and authorised thereto".
Dr Luthili proposed the insertion of the phrase "suitably qualified medical practitioner", in order to avoid the generality. Mr Pretorius disagreed, as the phrase "or other person considered fit and authorised thereto" was sufficient. Ms R Mashigo (ANC) agreed with the wording if, as Mr Pretorius explained, the matter would be regulated.
Ms M Matsemela (ANC) stated that the precise meaning and intention of the term "medical practitioner" in the provision should be clarified, even if the matter would be regulated. She proposed "a medical practitioner" replace "any medical practitioner", in order to clear the generality. Ms M Manana (ANC) agreed that "any medical practitioner" was too wide a formulation.
Ms N Mathibela (ANC) stated that the word "environmental" in the submission seemed out of place. She failed to understand the reason for its inclusion in its own line on the page. The Acting Chairperson explained that it was merely the formatting of the document that placed the word on its own, but that it actually read as a complete sentence.
Dr Luthuli stated that the Committee was uncomfortable with the amendment, even if the Department was saying the matter would be covered in the regulations. She reiterated her earlier suggestion that it be qualified and not simply stated generally as "any medical practitioner". It should instead stipulate "any suitable medical practitioner". Mr A Madella (ANC) agreed and proposed that "any suitably qualified and authorised medical practitioner" might solve the concern.
Ms M Matsau, Department of Health Deputy Director-General: Strategic Health Programmes, thanked the Members for their input, and stated that the Department would effect an amendment that would accommodate the Members’ concerns, perhaps something to similar to "a medical practitioner with relevant expertise". The Committee agreed.
Ms Manana noted the Woolworths suggestion that food scientists and microbiologists be allowed to decide whether the food was unsound, and asked whether they were in fact allowed to perform that function. Ms Matsau answered in the negative. They were not allowed to perform that function at this time, because the usual practice was for the medical practitioner to examine the patient who had consumed the unsound food. Thus the food scientist and microbiologist would not know whether the food was unsound until there was evidence produced by the medical practitioner.
The Acting Chairperson invited a response from the Department on the second comment raised in the submission, namely that foodstuffs suspected of being unsound should not be immediately destroyed without evidence to support such suspicions.
Ms Matsau replied that usually food that was strongly suspected of being unsound or unwholesome was immediately removed from the shelves for a temporary period, and it was during that interim period that analysis would be conducted. Based on the outcome of the laboratory analysis, the food would then either be returned to the shelves or be destroyed. This process would be further elaborated on in the regulations.
Dr Luthuli reiterated her concern that the provision required that the medical practitioner perform duties and actions that went beyond their scope of expertise. The Bill should thus clearly stipulate that only properly qualified persons should be allowed to perform those functions.
Ms Matsemela asked the Department to explain whether doctors in the employ of local authorities were well empowered to deal with such cases. If that was the case, she would then agree with Dr Luthuli that "suitable" requirement be inserted in the clause.
Ms Matsau confirmed that the purpose of the provision was to empower medical practitioner to take such action, by essentially granting the medical practitioner the power to alert the retailer that their product was unsound and that it should be removed from the shelves immediately, for a temporary period, until conclusive laboratory evidence was provided. The provision stipulated that the product would only be taken off the shelves when there were "reasonable grounds" to suspect it was unsound. Conversely, if the provision was not adopted, then medical practitioners would not have the power to remove unsound products from the shelves, and from sale. The provision should remain as it currently stood.
She understood that Dr Luthuli’s concern was that the provision would allow the medical practitioner the power to seize and destroy the product, which she argued exceeded the area of authority of a medical practitioner. That was however not the case as the medical practitioner did not perform those functions him-/herself, but only authorised the actions.
Ms Manana stated that the Department had mentioned earlier that it would look into the matter further and get back to the Committee us. She requested that the matter thus be parked. Dr Luthuli understood the explanation provided by the Department, but maintained that the provision needed to be rephrased .
Ms Matsau agreed that the Department would reconsider the provision, and repeated that the regulations would explain exactly the process to be followed by the medical practitioner.
Print Media South Africa submission
The Acting Chairperson read through the submission.
Definition of ‘appliance
The Acting Chairperson requested the Department to respond to the submission that the definition be extended to include activities such as the display and sale of foodstuffs, cosmetics and disinfectants.
Ms Matsau replied that there was no basis for this concern because the term was not intended to refer to the content of written material. The term ‘appliance’ in the Bill instead applied only to the physical machine. She was not sure of the reason for Print Media South Africa’s (PMSA) fear and assured Members that the term had nothing to do with the content of an advertisement, which was intangible. The aim of the Bill was to ensure the protection of the physical integrity of foodstuffs.
Ms Matsemela felt that PMSA were employing a freedom of expression argument, but they did not seem to understand how exactly the right to freedom of expression operated. Their concern was that the Minister would pass regulations on Section 15 of the Principal Act, but explained that the current government would not elect a Minister who had no understanding of the happenings within his or her Department.
Ms Manana stated that it was unfortunate that PMSA were not present to defend their views. She proposed that the definition be retained as it currently stood. Dr Luthuli felt that the PMSA comment was typical of the media in South Africa who were distrustful of government, and read into provisions that which was not really there or affixed negative interpretations. She agreed that the provision be retained as it currently stood.
Sections 15(n)(a) and 15(n)(l) of the Principal Act
The Acting Chairperson requested the Department to respond to the concern raised that the amendment to this provision now granted the Minister the right to restrict or prohibit the advertising, marketing or display of prohibited foodstuffs which, PMSA argued, violated the right to freedom of expression.
Ms Matsau replied that, for the same reasons, she failed to understand the rationale. Sections 15(n)(a) and 15(n)(l) of the Principal Act dealt public health issues, namely the hygiene of the premises in which foodstuffs were located. Section 15(n)(a) thus had no bearing on advertising at all. Furthermore, the matters were dealt with in regulations. If PMSA had concrete problems with the provisions, they should have highlighted specific regulations.
The Acting Chairperson noted that Members approved of the retention of the provision as it currently stood in the Bill.
Freedom of expression
The Acting Chairperson requested the Department to respond to the concern raised by PMSA that the amendments proposed violated the right to freedom of expression.
Ms Matsau assured he Committee that the Department did not have a problem with the right to freedom of expression or commercial speech, but reiterated that the Sections dealt only with the hygiene of the premises. It would have been a different matter if PMSA had raised the concern under the labelling legislation, but it simply did not apply to the Bill.
Dr R Rabinowitz (IFP) was fully in favour of the introduction of a means whereby people could be informed about which foods were healthy. For example, a school tuckshop should ideally split the food it sold into healthy and unhealthy food, so that children were made aware. It would not be possible to prescribe to retailers via legislation what they could and could not sell. The best alternative would be to "split" the foods. She asked whether there was any existing piece of legislation that would allow the "splitting".
Ms Matsau responded that it would not be done in the Bill. There were two existing Acts that could be relevant: the first was the labelling legislation, which dealt with the required information about the contents of the food that should be displayed on its labels. The second was the advertising legislation, which dealt broadly with correct information that should be displayed. Thus if Dr Rabinowitz’ concern was, for example, that Simba were advertising that certain of its crisps were healthy, when in fact they were not, then the advertising legislation would be used. There was however no room for that in the Bill.
Dr Rabinowitz stated that Ms Matsau’s answer confirmed that there was no existing Act that covered her concern. She maintained that it should be contained in a piece of legislation. She sought clarity on how it would be introduced. She would be more than happy to introduce it via a Private Members’ Bill, if that was required.
Ms Matsau responded that no piece of legislation could prescribe to retailers the choice of food they could sell, not via an Act or via regulations, or what citizens could eat. Department of Health promotion activities dealt with such matters, such as the extensive and significantly funded School Health Programme. The national nutrition programme also encouraged parents to educate their children about eating correctly, and could be used to encourage tuckshop owners to stock healthy food.
Dr Rabinowitz explained that she was definitely not advocating that tuckshops not be allowed to sell certain products. She was however saying that parents and teachers should be assisted in educating children about unhealthy foods, because clearly they were not being assertive enough. She was merely urging a regulation that required them to indicate to the children upfront that certain foods were less healthy than others, so that the children knew which foods were unhealthy.
The Acting Chairperson noted that Members agreed that the concern raised by PMSA could not be entertained.
Unilever South Africa submission
The Acting Chairperson read through the submission which argued against the repeal of Section 16 of the Principal Act. Unilever South Africa argued that the amendment would allow persons performing any duties under the Principal Act to inform anyone they chose of the results of the investigations conducted or provide information on the investigation.
Ms Matsemela had received a full explanation from the Department on whether there were any valid concerns with the repeal of Section 16, and the Department had clearly explained why the repeal of the section was necessary. The Committee was now satisfied that the repeal was warranted. She requested the Department to repeat their reasons.
Ms Matsau explained that companies like Unilever had a right to be concerned about the information that was being provided about them. They appeared to be concerned that an official of the Department would be at liberty to divulge to anyone. However, such information was very strictly regulated by law, and the Department had never fallen foul of that. The second appeared to be the concern that rumours about the safety of their products circulating among the public. Those rumours always started and the Department could not be held responsible for them. She argued that Section 16 should be maintained to ensure transparency. For a long time, consumers had been kept in the dark about the products they bought, and she pleaded that the legislation be generous when it came to transparency of such information.
Ms C Booysen, State Law Advisor, added that the Promotion of Access to Information Act regulated the manner in which government departments provided such information. She was thus of the view that the Unilever South Africa concern would be covered by that Act. The Acting Chairperson noted that Members agreed that the concern could not be entertained.
Mr Pretorius added that the Principal Act contained a provision that restricted liability and stipulated clearly that no person, including the state, would be held liable for anything done in good faith in the exercise of any power or duty conferred upon them under the Principal Act. Thus a responsibility of good faith rested on government and the municipality when providing such information.
The meeting was adjourned.