In March 2018, an outbreak of Cantaloupe-listeria bacteria affected many rock melons imported into Singapore from Australia, and this resulted in a recall of the affected Australian rock melons. It was surprising that these affected rock melons had bypassed the rigorous system of agricultural checks in Australia, which had been commended by Singapore in August 2017 for its adherence to strict food standards and regulations, following the introduction of an affordable milk formula Australian brand, Nature One Dairy milk formula.
In light of a spate of food contamination incidents and affected food products, the Singapore Parliament has ramped up efforts to revamp the Sale of Food Act (Cap. 283) (“SFA”). The latest amendment took place in November 2017, with the newly-modified SFA including provisions pertaining to the regulation of health-related content on food labels, promotion and advertising, and extra powers for the Agri-Food and Veterinary Authority (“AVA”) to effect food recalls.
Along with the AVA, the National Environment Agency (“NEA”) assists in enforcing the SFA, ensuring that food safety and hygiene are observed and maintained in Singapore.
This article would present the several key areas that concern the sale of food in Singapore. These are:
- Licensing
- Inspection
- Advertising
- Specific Prohibitions Regarding the Type of Food Sold
- Non-retail Food Business
Licensing
All food businesses need to be licensed, in compliance with Section 46 of the SFA. This is also a requirement under Section 32 of the Environmental Public Health Act (Cap. 95) (the “EPHA”) for those seeking to set up or run food establishments.
A licence can be granted, renewed, or refused at the discretion of the Director-General of the Agri-Food and Veterinary Services (the “Director-General”), who does not need to justify his grant, renewal or refusal to grant the licence. In addition, such grant or renewal can be subject to certain restrictions. For instance, limits may be placed on the duration of the licence, as the Director-General believes to be appropriate.
When applying for a licence, vendors may be required to provide information and evidence to enable the Director-General to evaluate their application fully. Failure to provide such information and evidence may result in the Director-General’s refusal to grant or renew a licence.
There are further requirements for the running of a food establishment, pursuant to Sections 32 to 41 of the EPHA, including requirements as to the health of the food vendors and the cleanliness of the vendor’s premises.
In addition, vendors may have to give security to the Director-General upon request, with such security to be furnished either by way of cash deposit or by entering into a bond. If the security to be provided by the vendor is in the form of a bond, the vendor may have to select less than three sureties to enter the bond with him. Furthermore, the vendor may have to fork out a prescribed fee to acquire or renew his licence.
According to Section 46(10) of the SFA, vendors or applicants for a food licence are not entitled to a refund of any fee(s) payable in respect of their application. In addition, by virtue of Section 46(11) of the SFA, a licensed vendor cannot transfer a licence or permit the licence to be used by a third party without the Director-General’s written approval.
If a vendor or applicant is dissatisfied with any decision of the Director-General regarding the licensing of the vendor’s business, he may apply to a Minister under Section 46(13) of the SFA. In such an event, the Minister’s decision on the matter is final and binding.
Inspection
An officer appointed by the Director-General has the power to enter and inspect any premises if he believes that there is food for sale there under Section 4(1)(a) of the SFA and Section 40 of the EPHA. Such an officer also has the right to open and examine any food packaging for inspection purposes. If he believes that the sale, preparation or manufacture of the food has not been followed as required by the SFA, he may mark and seal the food. Otherwise, he may remove the food from the premises and order that it be destroyed. The officer is also authorised to request for the vendor’s personal particulars such as his name and residential address. These provisions are echoed in the EPHA, and any vendor or licensee of a food stall must comply with the requirements in respect of cleanliness and the types of food for sale.
If the vendor wishes to dispute the seizure of food or other items belonging to him, he can make a complaint at the Magistrate’s Court within 48 hours after the seizure. The Court has a discretionary power to either confirm or disallow the seizure, whether wholly or partially, and may order the food article that was seized to be restored and returned to the vendor. If no complaint is made, or if the seizure is confirmed, the food will be destroyed or discarded.
Another power which the authorised officer possesses is the power to call for information, such as any documents or records that the vendor may have. These documents or records could relate to the vendor’s suppliers, for example. Under Section 5 of the SFA, the officer can request that the vendor disclose any document if the officer believes that such information is useful to the officer himself for enforcing the Act. However, the power conferred upon him is limited to what is stated in Section 5(6) of the SFA.
In addition, the officer has the right to request and select and take or obtain food samples under Section 6 of the SFA. If required, the vendor may also have to allow the officer to inspect the packaging of the particular sample. Any refusal to allow the officer to collect such samples can constitute an offence.
Apart from the above, following the spate of recent cases involving the sale of contaminated milk, the authorised officer also has the power to request samples of milk or food in the course of delivery under contract under Section 7 of the SFA. Refusal to comply with any request made by an authorised officer may constitute a criminal offence.
In fact, it is completely possible for any person, other than the vendor, to require the authorised officer to purchase and test a sample of food under Section 8 of the SFA.
If the officer requires a food sample for analysis, he would have to inform the seller of such an intention under Section 9 of the SFA. The officer will divide the sample into 3 parts, before marking and sealing or fastening up each part. The parts are retained by the seller, the officer, and the analyst. However, if the food sample is in an unopened package or where dividing the sample into three portions is not possible, the officer may divide the packages into lots instead.
When the analysis of the food is completed, the vendor may obtain copy of the result of the food analysis upon paying a fee under Section 10 of the SFA. However, the vendor is not allowed to utilise the food analysis results for advertising purposes.
Advertising
Section 16A of the SFA lists restrictions regarding the advertisement of food and/or food products, with a failure to comply being an offence. For the purposes of this section, the person who publishes the advertisement in question will be held responsible for it, and it is important to note that this does not necessarily have to be the vendor. Such a person is known as the “Defendant”.
Some of the provisions under Section 16A of the SFA provide that a Defendant must take care to ensure that his advertisements are accurate and that they do not mislead or deceive others as to the qualities of the food and/or food products. For instance, a Defendant may not advertise that a food product is nutritious when, in fact, it is not. The information used in any advertisement relating to the age, composition, effects, nature, origin, purity, quality or strength of the food must also be accurate.
If a Defendant breaches any of the provisions in this section, the prosecution does not have to show that the Defendant had deliberately intended to place a false advertisement, all that is required is that the Defendant did not comply with the requirements set out in the SFA.
However, if the Defendant can prove that the advertisement is true, he may not be held liable for his breach of the SFA. Additional defences for the Defendant can be found under Section 16A(6) of the SFA. These include showing, on a balance of probabilities, either that the Defendant was in a business which involves broadcasting information or making such information available, and that he lacked any control over the nature of the content of the advertisement. Alternatively, the Defendant can invoke the defence that he was in a business which mainly concerned with the publication of advertisements and published the advertisement in the ordinary course of business.
However, such a defence can be defeated under Section 16A(7) of the SFA if evidence can prove that the Defendant should have known that the publication of the advertisement was an offence, for instance, if he had been informed by writing beforehand by the AVA of such an act amounting to an offence. The defence can also be quashed if the Defendant is the proprietor of the food business concerned.
Any offence committed in this area can impose criminal liability on the vendor or Defendant, so the restrictions should be taken seriously.
Specific Prohibitions Regarding Sale of Food
There are some types of food and/or food products which the SFA specifically prohibits from being sold. This list can be found at Sections 11 to 14 in Part III of the SFA.
The sale of food products is strictly regulated by the SFA, and pursuant to Section 15 of the SFA, a person must not sell food that he knows, or that he should know, is unsafe or unsuitable. This is even if the food, upon being tested, turns out to be safe for consumption.
Prohibited Types of Food:
Adulterated food
- Under Section 25 of the SFA, adulterated food is when it is mixed with any substance or has an element removed that reduces its original value in its formally pure state. Alternatively, adulterated food may contain a substance which renders the food detrimental to health.
Food containing substance that are banned in the SFA
Food containing substance in excess of permitted proportion
Food containing more than 50 parts of methyl alcohol, isopropyl alochol or denatured alcohol in a million part of the food.
Non-retail Food Business
What can be considered a non-retail food business? Under Section 2F(1) of the SFA, it is a food business does not fall under the First Schedule of the EPHA, whereas the First Schedule of the EPHA includes businesses such restaurants, cut fruit shops, supermarkets, barbeque meat shops, and market-produce shops.
A non-exhaustive list of examples of non-retail food businesses can be found in Section 2F(2) of the SFA.
Certain requirements need to be satisfied before food can be sold in non-retail food businesses. First and foremost, the business must be licensed, as required by Section 21 of the SFA. Next, if a vendor or an employee of the vendor contracts an infectious disease, the party who has succumbed to the illness is not permitted to continue the business according to Section 22 of the SFA. The vendor’s license may be revoked or suspended under Section 22(6) of the SFA. Finally, any vehicle and equipment used for transportation of food which is likely to come into contact with the surface of the vehicle must have minimal risk of food contamination pursuant to Section 23(1) of the SFA.
Any vendor who fails to comply with such requirements may face criminal liability under Section 24 of the SFA.
More information on the sale of food can be found at the NEA website, or at this website where the SFA can be found at.
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This article is written by Nicolas Tang from Farallon Law Corporation and edited by Brenda Khoo of Asian Law Students Association.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.