Meaning of “owner of the rights of the manufacturer or packer”
(1) For the purposes of this Part, the term “owner of the rights of the manufacturer or packer” means—
(a) in the case of foreign manufactured or packed food, any person who owns the exclusive rights to distribute or sell
the food in Malaysia by way of licence, agreement or franchise from the foreign manufacturer; or
(b) in the case of locally manufactured or packed food, any person who, not being the manufacturer or packer, has proprietary rights over the distribution and sale of the food, or who, being the manufacturer or packer, distributes or sells the food through and in the name of a marketing agent.
(2) The term “owner of the rights of the manufacturer or packer” in subsection (1) extends also to any person who, in relation to food, claims or holds himself out as one, whether the food is imported or locally manufactured or packed.
Food containing substances injurious to health
(1) 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 and shall be liable, on conviction, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both.
(2) In determining whether any food is injurious to health for the purpose of subsection (1), regard shall be had 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 the food of substantially the same composition on the health of a person consuming the food in ordinary quantities.
Food unfit for human consumption
(1) Any person who prepares or sells any food that consists wholly or in part of—
(a) any diseased, filthy, decomposed or putrid animal or vegetable substance;
(b) any portion of an animal unfit for food; or
(c) the product of an animal which has died otherwise than by slaughter or as game,
whether manufactured or not, commits an offence and shall be liable, on conviction, to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding eight years or to both.
(2) Any person who prepares or sells any food that contains or upon which there is any matter foreign to the nature of such food, or is otherwise unfit for human consumption, whether manufactured or not, commits an offence and shall be liable, on conviction, to a fine not exceeding thirty thousand ringgit or to imprisonment for a term not exceeding five years or to both.
(3) Any person who prepares or sells any food whether manufactured or not that is enclosed in a sealed package and the package is damaged and can no longer ensure protection to its contents from contamination or deterioration, commits an offence and shall be liable, on conviction, to a fine not exceeding thirty thousand ringgit or to imprisonment for a term not exceeding five years or to both.
Adulterated food
(1) No person shall prepare or sell any adulterated food.
(2) For the purposes of and without prejudice to the generality of subsection (1), any food shall be deemed to be adulterated if—
(a) it contains or is mixed or diluted with any substance which diminishes in any manner its nutritive or other beneficial properties as compared with such food in a pure, normal or specified state and in an undeteriorated and sound condition, or which in any other manner operates or may operate to the prejudice or disadvantage of the purchaser or consumer;
(b) any substance or ingredient has been extracted, wholly or in part, or omitted, from the food and by reason of such extraction or omission, the nutritive or other beneficial properties of the food are less than those of the food in its specified state, or the food operates or may operate to the prejudice or disadvantage of the purchaser or consumer;
(c) it contains or is mixed or diluted with any substance of lower commercial value than such food in a pure, normal or specified state and in an undeteriorated and sound condition;
(d) it contains any substance the addition of which is not permitted by this Act or any regulations made under this Act;
(e) it does not comply with the standard or specification prescribed by any regulations made under this Act;
(f) it contains a greater proportion of any substance than is permitted by this Act or any regulations made under this Act;
(g) it is mixed, coloured, powdered, coated, stained, prepared or otherwise treated in a manner whereby damage or inferiority may be concealed; or
(h) it is in a package, and the contents of the package as originally packed have been removed in whole or in part and other contents have been placed in the package.
(3) For the purposes of and without prejudice to the generality of paragraph (2)(d), the addition of any substance to the food shall be deemed to be not permitted or shall be deemed to be prohibited by or under this Act if the standards or specifications prescribed for the food by regulations made under this Act do not expressly provide for the addition of such substance.
(4) A person who contravenes any of the provisions of this section commits an offence and shall be liable, on conviction, to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding five years or to both.
Removal of food from food premises
(1) Where any food is found to have contravened or reasonably suspected to have contravened any provision of this Act or any regulations made under this Act, the Director or any authorized officer authorized by the Director may, by notice in writing, order any of the persons in section 24 to recall, remove, or withdraw from sale such food from any food premises within such time as may be specified in the notice.
(2) Notwithstanding subsection (1), it shall be the duty of any of the persons in section 24, if he knows or has reason to believe or it has come to his knowledge that any food imported, manufactured, packed, farmed, prepared or sold by him has contravened section 13, 13A or 13B, to recall, remove or withdraw from sale such food from any food premises with immediate effect.
(3) A person who contravenes subsection (1) or (2) commits an offence and shall be liable, on conviction, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both.
Prohibition against sale of food not of the nature, substance or quality demanded
(1) Any person who sells any food which is not of the nature, or is not of the substance, or is not of the quality (as specified under this Act and any regulation made thereunder) of the food demanded by the purchaser, commits an offence and is liable on conviction to imprisonment for a term not exceeding five years or to fine or to both.
(2) Where regulations made under this Act contain provisions prescribing the standard of any food or the composition of, or prohibiting or restricting the addition of, any substance to any food, a purchaser of the food shall, unless the contrary be proved, be deemed for the purpose of this section to have demanded food complying with the provisions of such regulations.
Labelling, etc., not complying with standard of food
Where a standard has been prescribed for any food, any person who prepares, packages, labels or advertises any food which does not comply with that standard, in such a manner that it is likely to be mistaken for food of the prescribed standard, commits an offence and is liable on conviction to imprisonment for a term not exceeding three years or to fine or to both.
False labelling, etc.
Any person who prepares, packages, labels or sells any food in a manner that is false, misleading or deceptive as regards its character, nature, value, substance, quality, composition, merit or safety, strength, purity, weight, origin, age or proportion or in contravention of any regulation made under this Act commits an offence and is liable on conviction to imprisonment for a term not exceeding three years or to fine or to both.
Advertisement
(1) Any person who for the purpose of affecting or promoting the sale of any food, publishes or causes to be published, either on his own account or as the agent or servant of the person seeking to effect or promote the sale, any advertisement relating or likely to cause any person to believe that it relates to such food, or to any ingredient or constituent thereof, which—
(a) directly or indirectly qualifies or is inconsistent with or contrary to any particulars required by regulations made under this Act to be marked on or attached to such food or marked on or attached to any package containing such food;
(b) is prohibited by any such regulations from being marked on or attached to such food or marked on or attached to any package containing such food;
(c) omits from the name or description of any food any word or words required by regulations made under this Act to be included in the name or description marked on or attached to such food or marked on or attached to any package containing such food; or
(d) is likely to deceive a purchaser with regard to the character, nature, value, substance, quality, strength, purity, composition, merit or safety, weight, proportion, origin, age or effects of any food or of any ingredient or constituent thereof,
commits an offence and is liable on conviction to imprisonment for a term not exceeding three years or to fine or to both.
(2) Any person who publishes or causes to be published any advertisement which does not contain a statement setting forth the true name of the person by whom or on whose behalf the advertisement is published and the address of his place of business or residence, commits an offence and is liable on conviction to imprisonment for a term not exceeding three years or to fine or to both:
Provided that where such person is a company it shall be sufficient if instead of the address of the place of business of such company the statement sets forth the name of the place where the company has its registered office.
(3) Nothing in subsection (2)—
(a) shall apply in respect of any advertisement that is published orally or by any means of producing or transmitting light or sound; or
(b) shall affect the operation of any other provision of this Act or any regulation made thereunder which relates to the labelling of food.
(4) Any statement which is contained in an advertisement for any food and which purports to set forth the name of the person by whom or on whose behalf such advertisement is published, shall, until the contrary is proved, be sufficient evidence of the name of such person.
(5) Nothing in this section shall apply to any advertisement which complies with any regulation made under this Act relating to the disclosure or otherwise of the name and address of the place of business or residence of the manufacturer or seller of the food advertised or the agent of such manufacturer or seller.
Power of court to order licence to be cancelled and food to be disposed of
(1) On the conviction of any person of any offence under this Act the court may, in addition to any other penalty which it may lawfully impose, cancel any licence issued to such person under this Act or any regulation made thereunder.
(2) Where a person has been convicted of an offence under this Act, the court may order any food of a similar nature belonging to or in the possession of the convicted person or anything found with such food be forfeited, and upon such order being made such food or things may be disposed of as the court directs.
Prosecutions
(1) Where any analyst having analysed or examined any food to which this Act applies, has given a certificate and from that certificate it appears that an offence under this Act has been committed, an authorized officer may, subject to section 377 of
the Criminal Procedure Code and section 32A, take proceedings under this Act before any court having jurisdiction in the place where the food sold was actually delivered to the purchaser or the sample thereof taken.
(1A) The certificate of the analyst referred to in subsection (1) shall be issued to the Director or any authorized officer within ninety days from the date the food was sent for analysis.
(2) Where any food has been purchased or procured from any person for analysis or examination, no proceedings in respect of the sale thereof or of any offence against this Act shall be instituted after the expiration of one hundred and fifty days from the time of purchasing or procuring that food.
(3) In any proceedings under this Act, the contents of any package appearing to be intact and in the original state of packing by the manufacturer thereof shall be deemed, unless the contrary is proved, to be food of the description specified on the label.
Certificate of analyst to be prima facie evidence
In any proceedings under this Act a certificate of analysis purporting to be signed by the analyst shall be accepted as prima facie evidence of the facts stated therein provided that—
(i) the party against whom it is produced may require the attendance of the analyst for the purpose of crossexamination if a notice requiring the attendance of the analyst has been given to the prosecution three clear days before the trial; and
(ii) no such certificate of the analyst shall be received in evidence unless the party intending to produce it has before the trial given notice to the party against whom it is intended to be produced ten clear days of such intention together with a copy of the certificate.
Court may order independent analysis
(1) Where a sample has been taken or procured in accordance with section 5 or dealt with under regulations made under that section, the court before which any proceedings for an offence against this Act are heard may where it is reasonably and technically
practicable so to do and on the request of either party to such proceedings order that the part of the sample retained by the authorized officer be submitted to another analyst for analysis:
Provided that the authorized officer is required to retain part of the sample for such purpose.
(2) The court may order the party making the request to pay the costs of the analysis.
Presumption of sale, etc.
In any proceedings under this Act—
(a) evidence that the package containing any food to which this Act applies bore the name, address or registered mark of an importer, manufacturer or packer, or of the owner of the rights of the manufacturer or packer, or of an agent of any of them, shall be prima facie evidence that the food was imported, manufactured or packed, as the case may be, by each of the persons whose name, address or registered mark is borne on the package;
(b) any substance commonly used for human consumption, which is sold or offered, exposed or kept for sale, shall be presumed, until the contrary is proved, to have been sold or, as the case may be, to be intended for sale for human consumption;
(c) any substance commonly used for human consumption which is found on premises used for the preparation, storage or sale of that substance and any substance commonly used in the manufacture of products for human consumption which is found on premises used for the preparation, storage or sale of those products, shall be presumed, until the contrary is proved, to be intended for sale, or for manufacturing products for sale, for human consumption; and
(d) any substance capable of being used in the composition or preparation of any substance commonly used for human consumption which is found on premises on which that substance is prepared shall, until the contrary is proved, be presumed to be intended for such use.
No defence that offence not wilfully committed
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.
Advance notice of expert evidence in court
In any proceedings for an offence under this Act, no expert evidence shall be received in evidence unless, within a period ending ten clear days before the trial, the person charged with the offence has served on the prosecution notice in writing that he intends to adduce expert evidence, and shall disclose in the notice the name of the expert and the nature of the expert evidence; and shall also furnish a copy of any document that the expert proposes to adduce at the hearing.
Sales, etc., by agent or servant
(1) For the purposes of this Act every person who prepares, packages, labels, advertises or sells any food shall be deemed to do so either on his own account or as the agent or servant of any other person.
(2) In the case of any preparation, packaging, labelling, advertisement or sale by an agent or servant, his principal or employer shall be under the same liability as if he had effected the preparation, packaging, labelling, advertisement or sale personally.
(3) In the case of a sale of any food in contravention of this Act or any regulations made under this Act by a retailer or seller, or his servant or agent, the retailer, seller, servant or agent effecting the sale shall, for the purpose of this Act, be deemed to be the agent of the importer, manufacturer, packer, farmer, person who prepares the food or the owner of the rights of the manufacturer or packer, or the agent to the agent of any of them, and each of those persons shall be under the same liability as that of the retailer or seller or the servant or agent as if he had himself effected the sale unless such person proves that he could not have been responsible for such contravention.
Presumption for human consumption
(1) When any food is sold or exposed or offered for sale it shall, unless the contrary is proved, be deemed to be sold or exposed or offered for sale for human consumption.
(2) The purchase and sale of a sample of food under the provisions of this Act for the purpose of analysis shall be deemed to be a purchase and sale of such food for human consumption unless the seller proves that the bulk from which such sample was taken was not offered, exposed, or intended for sale for human consumption.
(3) For the purpose of this Act every person shall be deemed to sell or to intend to sell any food if he sells or intends to sell for human consumption any food of which such food is a constituent.
Non-disclosure of information
(1) No prosecutor or witness in any prosecution under this Act shall be compelled to disclose the fact that he received any information or the nature of such information or the name of any person who gives such information.
(2) No officer appearing as a prosecutor or witness shall be compelled to produce any confidential report or document made or received by him in his official capacity or to make any statement in relation thereto.
Manufacturing process and trade secret
Any person who discloses any information obtained by him in connection with the administration or execution of this Act or any regulation made thereunder in relation to any manufacturing process or trade secret used in carrying on any particular trade, industry or process, shall unless the disclosure was made for the purposes of this Act or of any criminal proceedings under this Act or with the consent of the person carrying on that trade, industry or process, commits an offence and is liable on conviction to imprisonment for a term not exceeding five years or to fine or to both.
Liability of importer, manufacturer, packer, etc.
Where food in connection with which there is a contravention of any provision of this Act or any regulations made under this Act is sold in an unopened package, any person who appears from any statement appearing on the package or attached to the package to have imported or manufactured or prepared the food or to have enclosed it in such package, or to be the owner of the rights of the manufacturer or packer, or to be the agent of any of them, shall, unless the contrary is proved, be deemed to have so imported, manufactured, prepared, or enclosed the food in the unopened package and shall be liable to the same penalty as if he had actually sold the food in such package.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
