Foodstuffs, Cosmetics and Disinfectants Amendment Bill: Department of Health briefing
NCOP Social Services
22 August 2006
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
SELECT
COMMITTEE ON SOCIAL SERVICES (NCOP)
22 August 2006
FOODSTUFFS, COSMETICS
AND DISINFECTANTS AMENDMENT BILL: DEPARTMENT OF HEALTH BRIEFING
Chairperson: Ms JM Masilo (ANC, North West)
Documents handed out:
Foodstuffs, Cosmetics and Disinfectants Amendment Bill [B35F-2005]
passed by Mediation Committee on 15 January 2007
Foodstuffs, Cosmetics and
Disinfectants Amendment Bill [B35E-2005] amendments agreed to by
Mediation
Committee 15 January 2007
Department of Health,
Directorate: Food Control (please email [email protected])
Foodstuffs,
Cosmetics and Disinfectants Amendment Bill: Presentation
Foodstuffs,
Cosmetics and Disinfectants Amendment Bill
SUMMARY
The Committee was briefed on the Foodstuffs, Cosmetics and Disinfectants
Amendment Bill by the Department of Health. The principal Act dated from 1972,
and there was an urgent need to update the legislation. Areas targeted for amendments included the
provisions for penalties, changes in the structure of national and local
government and the requirements for secrecy.
Several sections of the Health Act of 1977 had to be incorporated in the
Foodstuffs, Cosmetics and Disinfectants Act.
Members questioned some of the presentation aspects in the Amendment Bill,
particularly regarding the format of sections to be inserted. Questions were asked about the regulations
regarding aquaculture and measures to combat disease being spread by imported
animals. It was made clear that public
hearings in the provinces would be needed before the Committee considered the
Bill.
MINUTES
After introductions had been made, Mr M Sulliman (ANC, Northern Cape) noted
that the Foodstuffs, Cosmetics and Disinfectants Amendment Bill was to be dealt
with under Section 76 of the Constitution.
However, not all the provinces were represented as two were missing.
The Chairperson noted that no apologies had been received from the missing
permanent delegates. SMS reminders had
been sent earlier. However, as more than
six provinces were represented, the meeting could proceed. She invited Mr Andries Pretorius (Director:
Food Control, Department of Health) to make a presentation on the Amendment
Bill.
Department of Health
presentation
Mr Pretorius said that the principal Act, the Foodstuffs, Cosmetics and
Disinfectants Act (commonly referred to the Foodstuffs Act), had been passed in
1972. Changes were now needed. There were three reasons for the
amendments. Firstly, it was necessary to
bring the Act into line with the new dispensation. Secondly, certain provisions of the Health
Act of 1977 regarding food safety needed to be incorporated into the Foodstuffs
Act. Finally, it was necessary to update
certain outdated provisions of the Act.
Certain limited but urgent amendments were thus being proposed.
In early March the Amendment Bill had been considered by the Portfolio
Committee on Health. Public hearings had
been held and there had been detailed discussion. The Portfolio Committee had agreed on two
minor changes to the Bill as presented.
The Bill before the Select Committee, Bill B35B of 2005, was the full
text of the amendments, and included the inputs made by the Portfolio
Committee.
He then discussed the proposed amendments.
At one stage it became apparent that there was some confusion in the
Clause numbers in his presentation compared to the Clause numbers in the Bill
itself. This error was clarified.
Firstly, the long title of the Act was to be amended. This would include a reference to exportation
of foodstuffs, as this had not been included earlier.
Clause 1 of the Bill served to amend Section 1 of the Act. It would amend and add various definitions,
in particular the terms ‘Environmental Health Officer’, ‘medical practitioner’,
‘export’, ‘mollusc’, ‘Provincial Department’ and ‘veterinarian’. These all referred to aspects of food
control which had been included in the Health Act of 1977 but had not been
included in the new Health Act of 2003.
Clause 2 was to amend Section 10 of the Foodstuffs Act. The Director General (DG) would be able to
appoint persons not under his control as Inspectors.
Clause 3 would amend Section 13. This
Section made provision for an accused person to ask for a new inspection of
suspect goods on payment of a deposit.
The original wording had increased the amount from R25 to R500, but the
wording had been changed by the Portfolio Committee to “such sum as may be
determined by the DG”.
Clause 4 would amend Section 15. This
would transfer sections of the Health Act to the Foodstuffs Act, and pertained
to the Minister’s ability to make regulations regarding premises, appliances
and vehicles used in the processing of food.
This Section also covered the destruction of diseased animals and
unwholesome food. The Portfolio
Committee had requested the insertion of the provisions to define the authority
of veterinarians and medical practitioners, and they had added the wording “…
destroyed in the prescribed manner”.
Clause 5 would insert a new Section 15 A, which would deal with mollusc and
fish farming. This would be transferred
from the Health Act.
Clause 6 would repeal Section 16. This
Section dealt with the preservation of secrecy, but was no longer deemed
necessary in the new age of transparent governance.
Clause 7 would amend Section 18, regarding penalties for offences. The amount of fines imposed would be left to
the discretion of the court, as the amounts in the principal Act were no longer
appropriate. The amounts would be left
to the presiding magistrate to apply within the guidelines of the Magistrates
Act.
Clause 8 would amend Section 25 to allow the DG to delegate powers regarding
the control of imports at ports of entry.
In terms of the new Health Act, provinces would now exercise control
over import control.
Finally, Clause 9 would amend the long title of the Act to include the term
‘exportation’.
Mr Ramasala (Directorate Legal Services, Department of Health) explained the
rationale behind the proposed amendments raised by the Portfolio
Committee. Firstly, there was the
increase of the deposit required to apply for a second inspection from R25 to
R500. He thought that by making this
open ended, there would be no need to further amend the Act to make provision
for a higher amount as might be deemed necessary in the future. Instead, this should be left to the DG’s
discretion. Regarding the powers of
certain persons to destroy diseased animals or unwholesome foodstuffs, it had
been felt that the wording might allow arbitrary actions by arbitrary persons,
hence the need to stipulate who could order such actions and that they should
be in a prescribed manner.
Mr Gideon Hoon (State Law Advisor) had no further comments.
Discussion
The Chairperson opened the floor for questions and comments.
Ms F Mazibuko (ANC, Gauteng) noted that the proposals made by the National
Assembly Committee had not been underlined to mark them as insertions. She also questioned the use of the letter (n)
in the new sub-sections of Section 15 (these were marked nA to nO).
Mr Sulliman noted that Clause 7 removed the amounts of fines, but there was no
change to the length of prison sentences.
The judge would have discretion regarding the amount of the fine, but
the sentence remained fixed.
Mr B Tolo (ANC, Mpumalanga) asked for the rationale behind the regulations on
fish farming. He asked if a snail was
considered as a mollusk. He asked why
eating these creatures would be banned.
He noted that the definition of a mollusk was not clear.
Mr D Hernete (ANC, Eastern Cape) raised the question of outbreaks of
foot-and-mouth and other animal-borne diseases.
He asked how imports could be banned if necessary.
Mr T Setona (ANC, Free State) asked for clarity on the DG’s powers to appoint
inspectors from outside his area of control.
He asked if this would be anybody who was not in the employ of the
Department of Health, but if this would include other government employees by
bodies such as municipalities and provincial government. He asked if this would be a new policy in
control measures, or if it was just a modernisation in respect of existing law.
Mr Ramasala said that the vertical line in the margin of a long section of text
indicated that it should all be considered as underlined. He took Ms Mazibuko’s point that the vertical
line was not explained in the key to symbols used.
Mr Hoon explained that this was the way the printer operated. In the manuscript sent to the printer, the
sections in question had been underlined.
The Chairperson said that mediation was needed regarding the printer’s
errors. Members of the Committee would
not be doing their work if they did not spot these things.
Mr Hoon said that the vertical line symbol had been used since 1994. The first line of a new section would be
underlined, with a vertical line in the margin up to the final line, which
would also be underlined.
The Chairperson said the provinces would pick up on these things.
Mr Ramasala said he would raise the issue with the printers. Perhaps the horizontal and vertical line
symbology should be explained in the key.
Mr Hoon said that the Adjustment of Fines Act made provision for appropriate
financial penalties. This was reviewed
by the Minister of Justice from time to time.
There was a monetary link to prison sentences, and at present the fine
corresponding to a one-year sentence was R20 000. Therefore, a person with a first conviction
under the Act would face a prison term not exceeding six months which would
equate to a R10 000 fine. Obviously
there would be a need to adjust fines annually.
Mr Pretorius spoke about the inclusion of the clause regarding mollusk and fish
farming. It was not the intention to
stop people from eating what they liked.
The regulations were included as this was the more common situation at
present. There was significant growth in
the industry, and there were a number of coastal farms. The amended Act would provide an instrument
for the Minster of Health to make regulations where necessary. This was thus an enabling clause. It would also apply to fresh water fishing
enterprises. There were hygiene and
safety aspects involved. Although he
admitted to being a bit confused by the definition of a mollusk himself, he
said that it should be clear to those involved in the business. A broad definition would allow control over
new species involved in the industry.
Mr Tolo said that aquaculture was being encouraged.
Mr Pretorius said that the Minister of Health would take future decisions where
marine creatures would be cultivated for human consumption. Such decisions and the resulting regulations
would be taken only after consultation with other Departments.
Mr Pretorius said that control was needed against the spreading of
disease. There was provision for a ban
on exports from an animal health point of view. Countries importing animals
from South Africa would have their own import controls. Within the country control was exercised by
the Department of Agriculture under the Animal Disease Act. This made provision for permits and other
control measures.
He said that Port Health Services were a provincial responsibility. The Foodstuffs Act controlled the importation
of foodstuffs. Samples could be taken
for checking, and consignments could be rejected if they were found to be
unfit.
The Chairperson asked who would monitor the inspection process.
Mr Pretorius said that the new title for the inspectors would be Environmental
Health Practitioners (EHP). They would
fall under the provincial Health Departments.
In terms of the existing Act, Section 10, any inspectors employed
outside the municipal areas reported to the national Department of Health. Provinces now had responsibilities. There were two options. The DG could make national appointments,
where the EHPs would be employed by the provinces. The DG could also delegate this
responsibility to the provinces. The
other option was that the municipalities could appoint inspectors if authorised
by the Minister of Health. If the
relevant province was not able to control a particular port of entry, then the
DG could make direct appointments in the interim.
He said there were bodies which came into play from the industry, such as the
Dairy Standards Agency. In this case the
people involved might need authority, which could be provided at the DG’s
discretion.
Mr Pretorius said that the policy reforms were limited but the amendments were
needed urgently. Changes would be
limited so that the principal Act could serve a purpose until such time as a
possible new Bill was introduced. A new
food control system was being considered, but this was a long-term process and
was unlikely to be completed in less than five years.
He said that cosmetics were subject to existing regulations. Recently extensive regulations had been
published regarding their labeling, advertising and composition.
Mr Ramasala said that provision was to be made for the control of exports.
Mr M Thetjeng (DA, Limpopo Province) referred to the provisions for medical
examinations of persons handling foodstuffs, and asked if this would be
mandatory.
Ms Mazibuko said she was confused by the small n’s in the numbering of Clause
4. On page 4, in the proposed amendment
to Section 13, she asked why a deposit should be made rather than a
payment. She wanted to know why this Act
was under the auspices of the Department of Health and not with the Department
of Agriculture. She also raised the
issue of packaging, and wanted to know who was responsible for this. Manufacturers could produce products with
false labels. The contents of the
product should be as described on the label.
The Chairperson said that the SA Bureau for Standards (SABS) was responsible
for regulations regarding packaging.
Mr Pretorius said that the existing definitions only included the national
Minister. The amended Act would simplify
matters for possible changes. The
current Act did not include the provinces, which were now part of the National
Health Council. The Minister would
correspond with the respective MECs.
The regulation for the medical examination was contained in Clause 4, which
would amend Section 15. This was not yet
a regulation, but the provision would give the Minister an instrument for
possible future changes. It was not
needed at present, but was a guideline to the industry. This was in tune with the World Health
Organisation viewpoint.
The question of the deposit was taken from the principal Act. His Department would prefer not to handle
money, and he felt that a person applying for a second inspection should rather
show proof of making a deposit.
He said that there was a need for food control to be in the same
structure. The Departments of Health and
Agriculture were looking at a new, rationalised food control system.
Mr Pretorius said that there were existing regulations to cover packaging and
labeling. There were general hygiene
regulations to cover premises and transportation, and hygienic packaging was a
pre-requisite. The information on
packaging was subject to extensive regulation, and manufacturers were to avoid
fraudulent labeling. Municipalities were
responsible for the enforcement of these regulations.
Mr Ramasala said that provision would be made for medical examinations, but
these would only occur with the person’s consent. This would be in line with the
Constitution. The President had deemed
it fit for the Minister of Health to have authority over foodstuffs. This position might be reviewed if both
departments thought it would be appropriate.
The numbering of the new subsections for Section 15 was designed to
avoid confusion when cross-references were made to the Act. The paragraphs in the Clause were numbered nA
to nO, and would be inserted between the existing paragraphs n and o. The existing subsection o would therefore
remain the final subsection, and this was the one which made provision for any
other matters.
Mr Hoon said that it was not the intention to renumber the principal Act
because of cross-references in other legislation. This numbering system was a technical way of
solving the problem.
Mr Setona said that legislation was not the exclusive responsibility of
Parliament. There was pressure from
other centres of power. A delay in the
passage of the legislation had to be within statutory limits.
The Chairperson said that a period of six weeks was needed for public hearings
to be held.
Mr Thetjeng said that the critical stakeholders needed to be identified for the
public hearings.
Ms Masilo said that Members needed to know by when they went to the provinces
by the end of the week. It was up to
provinces to decide on when public hearings would be held.
Mr Setona warned that the NCOP would be abdicating its responsibility. It should encourage provinces to conduct
public hearings.
Mr Tolo emphasised this point, and reminded the Committee of recent
Constitutional Court rulings on the failure of government to hold public
hearings on contentious issues.
Ms J Vilakazi (IFP, KwaZulu-Natal) returned to the numbering of Clause 5 on
page 4 of the Amendment Bill. She found
the nA numbering style confusing, and said that this must be as simple as
possible.
Mr Tolo said that Members would need copies of the principal Act when they went
to the provinces. The Chairperson said
that this would be done.
Mr Ramasala said that the Bill was needed urgently. Some of the content was taken from the old
Health Act whereas major parts of the new Act were already in place. The process was still important, and public
hearings were needed. This was
especially true where engagement was needed between provinces and the
public. In KwaZulu-Natal State Law
Advisors were attached to the provincial legislature and could help with the
process.
Ms Vilakazi said that the last time public hearings had been held in that
province they were unable to find the State Law Advisors.
Mr Pretorius emphasised the urgency of the matter. Inspectors were currently not under the
control of the national DG, but were employed by the provinces. The DG could therefore not exercise authority
in terms of the current legislation, nor could the provincial DG’s. Inspectors could therefore not function
legally at present. If a case went to
court, they would have to explain to the court why they had not been properly
appointed. Magistrates were almost
forced to use the current amounts prescribed for fines. Offenders could flout the law, as these fines
had no deterrent value at current rates.
The secrecy section in the existing Act was unconstitutional.
The Chairperson complained about the uncontactability of Department of Health
officials. During a recent operation in
the Zeerust area it had been necessary to contact the Department. Calls to landline numbers went unanswered and
the Department refused to provide cellular numbers.
The Chairperson thanked the delegation from the Department of Health for their
presentation.
Committee Minutes
Ms Masilo invited the Members to comment on the minutes of meetings held on 20
and 21 June.
Mr Sulliman referred to the minutes of 20 June.
It stated that turnaround times had increased from six weeks to four
months. He thought the turnaround time
should be immediate.
The Chairperson asked if all nine provinces were equipped to deal with
this. She pointed out that there had
been meetings on two successive days.
Ms N Madlala-Magubane (ANC, Gauteng) said that there was no programme
available.
The Chairperson said that there should be a workshop for the Committee to come
up with a programme. She did not know
about the provincial week.
Ms Mazibuko said that the minutes should be a reflection of what was discussed.
Me Setona said that there had been an administrative problem with the
circulation of the programme.
The Chairperson commented on the key issue.
Staff did not have access to the Members’ offices, resulting in the
offices not being cleaned and more importantly in the failure to deliver
correspondence while Members were out of the office.
Mr Tolo said that the resolution on the workshop was not included in the
minutes.
Mr Sulliman said that each Member should get a copy of the programme by Tuesday
afternoon or Wednesday morning. The
provincial week had been identified before the recess. Members should have a copy of the program to
hand at all times. He asked how far the
process was.
The Chairperson closed the issue of the workshop, and admitted that the minutes
were inaccurate. The proposed
international study tour for the Committee was on the House Chairperson’s forum
agenda. She had briefed the House
Chairperson, but there was no budget in this financial year for either the NCOP
or the National Assembly (NA). The
budget had been used mainly by the NA, and only one NCOP Committee had
benefited. An application had been sent
in as a follow-up for the proposed visit to Canada. This had been put off because of the general
election in 2004 and the ensuing local government elections. Research had been done in 2001 and follow-up
research had also been done. The
proposed amount of R1 million was too much.
An amount of over R50 000 per person was over budget.
The Committee had then proposed a visit to Sweden. Research had been done and submitted, but no
funds were available. Discussions were
being held between the Secretary, Presiding Officers and National Treasury. A request was on the table, even if it had to
be held over until the following financial year. This Committee had first priority for an
overseas trip as hiccups had been experienced since 2004.
Mr Setona said there was a need for understanding of the powers of the Members
as elected officials. Members provided
leadership, but there was nothing for them.
Someone had misled the Committee.
He asked if it was prudent for Parliament to operate in this way.
Mr Tolo said that each Committee should have a separate budget. At present it seemed as if there was a “first
come first served” policy. During June
Members of the Committee had visited the Democratic Republic of the Congo as
part of the Joint Defence Committee while other Committees had visited Australia
and other countries.
Mr Sulliman said that the concept of one pool for funding needed a political
decision. Officials were doing things
they were not supposed to do.
Accountability was needed.
Ms Vilakazi said that the issue could not be left there. The Committee’s request had been defeated and
priority was being given to the NA.
Members of this Committee were working hard and some compensation was
needed.
Ms Mazibuko said that the Auditor General’s report on Parliamentary spending
indicated large amounts of unspent money being returned to Treasury. There was no budget for Committee work, but
some Members seemed to be travelling continuously. Something was wrong, and these activities
needed to be gone over with a fine tooth comb.
The Chairperson said that indications were that the proposed visit to Sweden
would also not happen due to budgetary constraints. A constituency week would be held during the
September recess. A programme would be
drafted and the workshop was a priority.
She said that the minutes of the meeting of 20 June were adopted. The minutes of 21 June were also adopted but
with amendments.
The meeting was adjourned.
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