Sale of Food (Amendment) Bill – Speech by Sylvia Lim

(Delivered in Parliament on 7 November 2017)

This Bill seeks to enhance the regulation of the sale of food, to allow the Agri-Food and Veterinary Authority (AVA) to take food safety measures and to promote public health. While nobody can quarrel with such aims, the amendments potentially allow AVA to impose onerous obligations on a wide variety of activities and businesses. There is a danger that the duties of compliance, and the costs of compliance, may kill off small businesses and community activities, which pose relatively low risk to public health.

This Bill increases AVA’s power over the current law in a few ways.

To summarise, the existing law is focused on enabling AVA to inspect places where food is sold, to take food samples for testing and imposing certain specific duties on those concerned with food establishments. This Bill goes much further. As the new Long Title states, the Bill now has a more general purpose of ensuring that food for sale is safe and suitable for human consumption and to promote public health, and to ensure that the public have accurate information to make informed choices about food that is sold. Compared to the existing law which focuses on punishing violations of baseline standards, the Bill now before the House is much more preventive and prescriptive.

This Bill casts the AVA’s net wide and installs the AVA with the new powers, especially in the proposed Part IIA of the Bill. While the new powers would be potentially useful in tackling errant businesses that produce or sell sub-standard food to the general public, it seems to me that other entities that provide useful services to segments of the public may potentially be subject to onerous requirements that are not commensurate with the risk. Let me elaborate.

In the Bill, there is a new definition of “food business” in the proposed Section 2B. “Food business” is defined as a business or an undertaking or activity that involves, either in whole or in part, the handling of food intended for sale, the actual sale of food including over the Internet, and primary food production. It is further stated that an activity will be considered a food business regardless of whether it is of a commercial, charitable or community nature, and even if it is a one-time activity.

A literal reading of the definition of food business will include the following types of activities: church fun fairs, which typically have stalls selling food and drink; persons who host dinners or parties at their homes for a fee; a one-time private fund raiser which includes a meal; and traditional Chinese medicine shops, which also sell herbal tea eggs and herbal drinks. We can all agree that such activities are worth preserving, and such activities make an important contribution to Singapore’s social and cultural depth.

Under the new Part IIA, such activities would come under the new Food Safety Measures imposed by AVA. What are these new Food Safety Measures? AVA will be empowered to give new directions to persons involved in food business activities to take preventive or corrective action in respect of food or a food contact article. According to the new Section 10D, these actions to be taken include complying with specific steps to ensure the safety and suitability of food that is raised, cultivated, harvested, caught, prepared, sold or otherwise handled; taking specific steps to ensure that food premises, vehicles, food contact articles or any equipment are cleaned, disinfected or altered; and to ensure that requirements of the Act are complied with. All these requirements are likely to be very specific, since the amended Section 56 provides that the Minister will make regulations on these matters. Section 10D further provides that until such corrective action is taken, the food business activity is to be suspended.

Besides Section 10D, Sections 10E, F and G empower the AVA to impose controls on the movement of food, to recall food, and to destroy and dispose food. Section 10H will require a Statement to be published by the person in charge of the activity, with information on any food that was recalled by AVA, the reasons for the recall and what remedy the person will provide. Non-compliance with any directions carries a fine of up to $10,000 and imprisonment of up to a year or both (Section 10K).

Given that these are very draconian measures, how will AVA devise a framework to differentiate between activities of high risk and activities of low risk, and calibrate its regulatory response accordingly?

For instance, I have received concerns from owners of traditional Chinese medicine shops. These shops mainly sell herbs and Chinese medicines, but may devote a small part of their shop to selling herbal tea eggs or herbal teas; these form a very minor part of their business, earning some of them less than $50 per day. Recently, the National Environment Agency informed them that they would need to obtain a foodshop licence; they also understand that they may have to undergo compulsory training as well. It is not clear what risks have emerged that necessitate more regulation of such shops. There are many such shops in HDB estates, where business volume may be moderate to low .

This Bill provides yet another major pillar for such shops to be closely regulated. How burdensome will it be for food sellers to comply with stricter conditions from both NEA and the AVA? If the AVA goes headlong into imposing onerous conditions on such businesses, some businesses will find compliance difficult and too costly, and cease operations, to the detriment of their customers.

As for charitable and community initiatives which may be caught by the Bill, the AVA should take an enabling and educational approach, rather than saddle them with costly and difficult requirements.

The other aspect of the Bill that I wish to comment on is the proposed Section 10I. This is a very interesting section, that provides for the possibility of the AVA paying compensation to a person who may have suffered loss as a result of the AVA making a direction based on insufficient grounds. First, let me say I welcome this provision, as it recognizes that AVA may make mistakes, and it is welcome that AVA is undertaking a responsibility to pay compensation to persons who suffer loss due to such mistakes. Earlier the Minister called these “false alarms”. I would like the Ministry to clarify what they consider to be “insufficient grounds”. What if AVA relied on an expert report that turned out to be wrong? Another obvious question is: what kinds of losses would AVA recognise? For instance, an order to recall food and to display a Statement on the recall would result not only in wasted costs, but also cause reputational loss to the business owner, from which he may never recover. Will AVA compensate the business owner for loss of reputation and future business?

To conclude, I appreciate AVA’s intention of safeguarding public health by introducing this Bill. I am not opposing this Bill. My concern is that the new powers of the AVA must be carefully calibrated for different classes of activities, to take into account the nature and extent of the risk posed. This Bill should not discourage community and charitable initiatives. It should also be borne in mind that if we are serious about encouraging and supporting entrepreneurship in Singapore, the government should not impose excessive burdens and costs on small businesses.