The legal regime on food safety and human health
In light of Article 15 of the Bangladesh Constitution, a fundamental duty of the State is to secure provision of the basic necessities of life including food. Article 18 of the Constitution states that the State shall raise the level of nutrition and improve public health as its primary responsibility. These provisions, even though they appear in the Constitution as fundamental policies and not as fundamental rights, certainly cannot be taken as flowery aspirations. There have been quite a few decisions on constitutional law emphasising on the significance of these policies and on how the State is under an obligation to strive for achieving the standard of lives.
The Penal Code of 1860 made food adulteration punishable under sections 272-276. However, those provisions could not effectively control the manufacture and sale of adulterated food articles. With a view to protecting consumers from the effect of widespread adulteration of very many kinds of foodstuff, the Pure Food Ordinance was promulgated in 1959. Repealing the Pure Food Ordinance of 1959, the Food Safety Act of 2013 came up.
In order to carry out the purposes of the Act of 2013, the Bangladesh Good Safety Authority has been established. The main duties and functions of the Authority, as enshrined in the Act, are to regulate and monitor the activities related to manufacture, import, processing, storage, distribution and sale of food so as to ensure access to safe food through exercise of appropriate scientific methods, and to coordinate the activities of all the organisations concerned with food safety management.
The Act has also envisaged the formation of a Committee (Central Food Safety Management Coordination Committee) to coordinate among the authorities or organisations involved directly or indirectly in food safety management system. The entire edifice of food safety authority under the auspices of the Act does not consist of decentralised bodies. Both the Committee and the Authority (head office) are based in Dhaka.
Besides individual duties for any person producing food, the Act has laid down special duties for food business operators. For individuals, the use of poisonous elements, radioactive, heavy metals in excess of acceptable limit, food additives or processing aids, growth promoters, insecticides, pesticides or drug residues, microbes, among others, is prohibited. Production, import or marketing of adulterated article of food or food ingredient as well as production of sub-standard food is also prohibited under the Act. The Act has separately imposed certain special liabilities upon producers, packers, distributors and sellers of food.
One of the major drawbacks of the Pure Food Ordinance 1959 was that it provided for minor penalties for different kinds of offences. The Law Commission convincingly argued in its report and recommendation for amendment to the now repealed Ordinance that ‘[…] taking advantage of [the] minor penalties the unscrupulous traders started mixing injurious materials with almost every food articles like fruits, vegetables, fish, meat, flour’. One of the ideas behind enacting the new piece of legislation was therefore to enhance punishment. The Schedule of the new Act provides for a plethora of penalties for offences committed under the Act. For instance, the imposable punishment for using or including any chemical or other such ingredients or substance (such as calcium carbide, formalin, sodium cyclamate), is imprisonment for a period not exceeding five years but not less than four years, or a fine not exceeding Taka ten lac but not less than Taka five lac, or with both. This penalty is imposable for the commission of the above-mentioned offence for the first time. For repetition, imposable penalty is imprisonment for five years or a fine of Taka twenty lac, or both.
A comparison with the previous Ordinance will make us decipher the fact that penalties have certainly been increased. However, it is interesting to note that the penal and monetary punishments have been laid down as alternatives to each other which suggests that it is possible for the business operators to get away with paying the monetary fine only. An important change however is that minimum penalty has been prescribed for each and every offence. This limits the discretion of the Authority and also the civil court (when civil remedies are sought for) to a certain extent upon finding fault on part of the accused.
The rule that has been issued by the HCD has reignited discussion on a significant issue. The observations made by the HCD can certainly bring about important changes to the discourse on food safety management in the country as well as to the status quo.
From Law Desk, The Daily Star.