Food Act 2014
Act 18 of 2014
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FOOD ACT 2014
Food Act 2014 Arrangement of Sections
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Act 18 of 2014 Page 3
C
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FOOD ACT 2014
Arrangement of Sections
Section
PART I - PRELIMINARY 5
1 Short Title .............................................................................................................. 5
2 Interpretation .......................................................................................................... 5
PART II – ADMINISTRATION 8
3 Establishment of National Food Authority ............................................................ 8
4 Functions of the Authority ..................................................................................... 9
5 Budget and funds of the Authority ......................................................................... 9
6 Establishment of National Food Council ............................................................... 9
7 Secretariat ............................................................................................................ 10
8 Functions of the Council ...................................................................................... 10
9 Minister’s reserve powers .................................................................................... 12
10 Minister’s powers of appointment and designation ............................................. 12
PART III – GENERAL PROVISIONS 12
11 Authority’s power to limit or ban substances in food .......................................... 12
12 Authority’s power to prohibit importation or cultivation .................................... 12
13 Authority’s emergency powers ............................................................................ 13
14 Food businesses ................................................................................................... 13
15 Traceability .......................................................................................................... 13
16 Hygiene rules ....................................................................................................... 14
17 Labelling .............................................................................................................. 14
PART IV – INSPECTIONS 14
18 Objects of inspections .......................................................................................... 14
19 Powers of authorized officers .............................................................................. 14
20 Rights and duties of owners and persons in charge of food businesses ............... 15
Arrangement of Sections Food Act 2014
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21 Improvement notice.............................................................................................. 15
22 Food unfit for consumption .................................................................................. 16
PART V – IMPORT AND EXPORT 17
23 Requirements for imported food .......................................................................... 17
24 Inspection and sampling ....................................................................................... 17
25 Re-labelling and re-conditioning .......................................................................... 17
26 Requirements for the export of food .................................................................... 18
PART VI – OFFENCES AND PENALTIES 18
27 Sale of unwholesome food ................................................................................... 18
28 Sale of food not meeting standards ...................................................................... 19
29 False or misleading labelling ................................................................................ 19
30 General offences ................................................................................................... 19
31 Offences by authorized officers ........................................................................... 20
32 Publishing false or misleading advertisements .................................................... 20
33 Offences by bodies corporate ............................................................................... 20
34 Penalties ............................................................................................................... 20
35 Additional penalties.............................................................................................. 21
PART VI – MISCELLANEOUS 22
36 Right of appeal ..................................................................................................... 22
37 Good faith defence ............................................................................................... 22
38 Presumptions ........................................................................................................ 22
39 General defences .................................................................................................. 23
40 Defences with regard to advertisements ............................................................... 23
41 Regulations ........................................................................................................... 23
42 Act shall prevail ................................................................................................... 24
43 Act binds the Crown ............................................................................................. 24
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C
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FOOD ACT 2014
Act 18 of 2014
AN ACT TO REGULATE THE MANUFACTURE, SALE, IMPORT AND
EXPORT OF FOOD FOR COMMERCIAL PURPOSES, TO GUARANTEE
FOOD SAFETY AND FITNESS FOR HUMAN CONSUMPTION, TO
PROMOTE FAIR TRADE PRACTICES IN FOOD AND TO PROVIDE FOR
RELATED MATTERS
I assent,
TUPOU VI,
16
th
October 2014.
BE IT ENACTED by the King and Legislative Assembly of Tonga in the
Legislature of the Kingdom as follows:
PART I - PRELIMINARY
1 Short Title
This Act may be cited as the Food Act 2014.
2 Interpretation
In this Act, unless the context otherwise requires:
“adulterate” means to make impure in order to give a false impression or
value or to hide defects, by the addition of a foreign, inferior or inert
substance to food, or by the exclusion or removal of a valuable or necessary
ingredient of food;
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“advertisement” includes any representation – written, pictorial, visual or
otherwise – made for the purpose of promoting directly or indirectly the sale
or disposal of any food or any substance represented as food;
“appliance” means the whole or any part of any implement, machine,
instrument, apparatus or other object used or capable of being used in or in
connection with the production, manufacture, treatment, packing, packaging,
labelling, transport, handling, serving or storage of any food;
“Authority” means the National Food Authority established under section 3
of this Act;
“authorized officer” means a person authorized and qualified to act as such
under section 10(1)(b) of this Act;
“Codex” means Alimentarius Commission, the World Organisation
responsible for Food Safety Standards to protect human health in international
trade in food and food products;
“contaminant” means any substance not intentionally added to food, which is
present in such food as a result of the production (including operations carried
out in crop husbandry, animal husbandry and veterinary medicine),
manufacture, preparation, treatment, packing, packaging, transport or holding
of such food or as a result of environmental contamination, but does not
include insect fragments, rodent hairs or other extraneous matter;
“contamination” means the introduction or occurrence of a contaminant in
food;
“Council” means the National Food Council of the Authority established
under section 6 of this Act;
“Court” means a court with the competent legal authority;
“Director” means the Director of the Authority;
“export” means to take or cause to be taken out of the Kingdom for
commercial purposes;
“exporter” includes any person who, whether as owner, consignor,
consignee, agent or broker, is in possession of or in any way entitled to the
custody or control of any food taken out of or intended to be taken out of the
Kingdom;
“food additive” means any substance not normally consumed as food by
itself and not normally used as a typical ingredient of food, whether or not it
has a nutritive value, the intentional addition of which to food for a
technological (including organoleptic) purpose in the production,
manufacture, preparation, treatment, packing, packaging, transport or storage
of such food results, or may be reasonably expected to result (directly or
indirectly), in it or its by-products becoming a component of or otherwise
affecting the characteristics of such food, but does not include contaminants
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or substances added to food for the purpose of maintaining or improving
nutritional qualities;
“food business” means any business, where production, manufacture,
preparation, treatment, packing, packaging, transport, handling, labelling,
grading, serving, storage or sale in relation to food is carried out for
commercial purposes;
“food production chain” means all stages of production from primary
production of food to food handling and food sale;
“food safety” means the assurance that food will not cause harm to the
consumer when it is prepared or eaten according to its intended use;
“food” means any substance, whether processed, semi-processed or raw,
which is intended for human consumption, and includes drink, chewing gum
and any substance which has been used in the production, manufacture,
preparation or treatment of food, but does not include cosmetics or tobacco or
substances used only as drugs;
“import” means to bring or cause to be brought within the Kingdom for
commercial purposes;
“importer” includes any person who, whether as owner, consignor,
consignee, agent or broker, is in possession of or in any way entitled to the
custody or control of any food brought in or intended to be brought within the
Kingdom;
“improvement notice” means a notice served under section 21 of this Act;
“ingredient” means any substance, including a food additive, used in the
manufacture or preparation of a food and present in the final product;
“IPPC” means International Plant Protection Convention, the World
Organisation responsible for Plant Health Standards for international trades in
plants and plant products;
“label” means any tag, brand, mark, pictorial or other descriptive matter
written, printed, stencilled, marked, embossed or impressed on, or attached to,
a container of food or its package;
“manufacture” includes processing and preservation and other related
activities;
“Minister” means the Minister for Health or such other Minister to whom
primary responsibility for food is assigned;
“official analyst” means a person authorized and qualified to act as such
under section 10(1)(c) of this Act;
“official laboratory” means a laboratory designated or approved as such
under section 10(2) of this Act;
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“OIE” means International Office Epizootics, the World Organisation for
Animal Health responsible for Animal Health Standards for international
trade in animals and animal’s products;
“package” includes anything in which food is wholly or partially placed or
wrapped;
“premises” includes any building, tent or other structure, permanent or
otherwise, together with the land on which same is situated and any adjoining
land employed in connection therewith, used for the production, manufacture,
packing, packaging, transport, handling, serving, storage or sale of any food;
“production” means the cultivation, rearing or growing of food including
harvesting, milking and farmed animal production prior to slaughter;
“scientific sub-committee” means the sub-committee established in section
8(5)(a) of this Act;
“sell” includes to offer, advertise, keep, store, display, transmit, consign,
convey or deliver for sale, or to exchange or to dispose of to any person in any
manner whether for a consideration or otherwise, and “sold”, “selling” and
“sale” shall have corresponding meanings;
“stages of production” includes import, storage, transport and sale;
“street food” means ready-to-eat food prepared, sold or offered for
consumption in streets and other public places;
“substance” includes any solid, liquid or gaseous materials;
“traceability” means the ability to follow the movement of a food through
specified stages of production, processing and distribution;
“treated” means coloured, stained, powdered, polished, coated, mixed,
preserved, flavoured, diluted or thickened with any substance, and “treat” and
“treatment” shall have corresponding meanings;
“unsanitary conditions” means such conditions or circumstances as might
cause contamination of food or render the same injurious or dangerous to
health;
“vehicle” means any vessel, aircraft, conveyance, cart, container, animal or
other thing that can transport food from one place to another; and
“wholesome”, in relation to food, means to be natural, clean, safe and not
adulterated.
PART II – ADMINISTRATION
3 Establishment of National Food Authority
(1) There is hereby established the National Food Authority.
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(2) The Minister shall be the National Food Authority under this Act.
4 Functions of the Authority
The principal functions of the Authority shall be to:
(a) employ risk management with the goal of ensuring that all:
(i) food produced in the Kingdom, whether for domestic consumption or
export; and
(ii) food distributed or marketed in the Kingdom, whatever its origin;
meets the prescribed standards of food safety and food quality;
(b) coordinate and harmonize food control activities in the Kingdom at all stages
of production, manufacture and distribution;
(c) prevent and protect against fraud in connection with the sale of food;
(d) formulate strategies and policies on food, nutrition and food security,
including procedures for emergency response, and monitor their
implementation;
(e) encourage and promote research on food matters to facilitate the development
of the food industry within the Kingdom;
(f) provide food safety and food quality inspection and certification services as
necessary;
(g) consult widely with all sectors of the food chain in carrying out its activities
under this section;
(h) provide advice, information or assistance to any public authority in relation to
food control, food safety, food quality assurance and food trade;
(i) obtain, compile and keep under review information concerning food control,
food safety, food quality assurance and food trade;
(j) promote consumer education regarding food safety and nutrition; and
(k) carry out any other matters in connection with or reasonably incidental to the
foregoing.
5 Budget and funds of the Authority
In addition to an annual budgetary allocation from the Legislative Assembly, funds
of the Authority shall include such moneys or other assets as may accrue to or vest
in the Authority by way of grants, subsidies, donations or gifts.
6 Establishment of National Food Council
(1) There is hereby established the National Food Council.
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(2) The Council shall consist of not less than three and not more than 7 members
appointed by the Minister with the consent of Cabinet, and one of whom shall
be appointed as chairman.
(3) The members of the Council shall hold office for a term of two years, and
may be reappointed.
(4) The Council shall have the power to co-opt additional members.
(5) Additional co-opted members shall -
(a) hold office for such periods of time and upon such terms and conditions
as shall be determined by the Minister; and
(b) have the same rights, powers and duties as members of the Council.
(6) Members of the Council shall be paid meeting fees according to government
policy.
(7) The Minister may remove a member for misconduct, for infirmity of body or
mind, for conflict of interests or for having been convicted of a crime.
(8) The quorum for the Council shall be at least one half of the Council members.
(9) The Council may make provision for the conduct of its meetings and the
procedures to be followed at such meetings but shall meet at least four times
annually.
7 Secretariat
(1) There shall be a secretariat responsible for supporting and facilitating the
activities of the Council, including meetings and correspondence.
(2) The secretariat shall be appointed by the Authority.
8 Functions of the Council
(1) The functions of the Council shall be to:
(a) advise the Authority on food control, food safety and food quality
assurance matters, including the production, manufacture, import,
export, labelling and sale of food, on consumer protection and
emerging food control issues including street food and foods for
catering purposes;
(b) exercise oversight responsibility for the performance of the functions
of the Authority;
(c) provide assistance and advice on the formulation, review and
implementation of food policy, including procedures for emergency
response;
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(d) propose and assist in the preparation and amendment of regulations,
orders, standards, codes of practice, guidelines and notices under this
Act;
(e) examine complaints and objections lodged in respect of decisions made
or official actions taken under this Act;
(f) distribute information received from the Codex Alimentarius
Commission, the IPPC, the OIE or other international or regional
standard-setting bodies and coordinate the circulation of draft standards
within the Kingdom and the collection of comments thereon from
interested governmental and non-governmental actors;
(g) advise on the Kingdom’s participation in the work of the Codex
Alimentarius Commission, the IPPC and the OIE and their subsidiary
bodies, including representation at meetings;
(h) promote consumer education regarding food safety and nutrition;
(i) on its own initiative, discuss any matter connected with food in the
Kingdom, and report to the Authority on its discussions; and
(j) perform all other functions assigned to it by this Act or by the
Authority.
(2) The Council shall -
(a) submit an annual report to the Authority; and
(b) provide a copy of such report upon request to any member of the
public.
(3) Members of the public may attend meetings of the Council if authorized by
the Chairman of the Council.
(4) The Council may appoint such sub-committees as it deems necessary, to assist
it in the performance of its functions.
(5) (a) Notwithstanding the provisions of sub-section 4, the Council shall
appoint a scientific sub-committee to carry out food safety risk
assessments and such other scientific tasks as may be assigned to it.
(b) The scientific sub-committee shall be responsible for:
(i) evaluating, in response to official requests or on its own
initiative, physical, chemical or biological risks to human health
arising throughout the food chain;
(ii) advising the Council and the Authority on the appropriate
measures to be taken to protect consumer health; and
(iii) providing inputs into or developing proposed regulations or rules
on subject matters within its mandate.
(c) In carrying out its functions, the scientific sub-committee shall take into
account:
(i) the latest scientific research;
Section 9 Food Act 2014
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(ii) information regarding procedures, methods and means of
production;
(iii) the results of sampling and analysis; and
(iv) any other relevant data.
9 Minister’s reserve powers
(1) If it appears to the Minister, upon proof, that there has been a serious failure
by the Council to exercise its functions, he may give the Authority or the
Council such directions as he considers appropriate.
(2) If the Council fails to comply with such directions, the Minister may -
(a) give effect to them (and for that purpose may exercise any power of the
Council); or
(b) notwithstanding section 6, remove all the members of the Council from
Office and, until new appointments are made, carry out the Council’s
functions himself or appoint any other person or persons to do so.
10 Minister’s powers of appointment and designation
(1) The Minister may appoint or designate any person with the appropriate
qualifications as:
(a) an additional co-opted member of the Council;
(b) an authorized officer to carry out the functions assigned to such officers
under this Act; or
(c) an official analyst for purposes of enforcement of this Act.
(2) The Minister on the advice of the Council may designate any laboratory as an
official laboratory for purposes of enforcement of this Act.
PART III – GENERAL PROVISIONS
11 Authority’s power to limit or ban substances in food
The Authority may, on the basis of the results of scientific analysis or other credible
scientific information and in accordance with applicable international standards, ban
or set limits on the presence of additives, contaminants and residues in food or
animal feed.
12 Authority’s power to prohibit importation or cultivation
Where the Authority determines that food of any specified class or description if
imported or cultivated, taken or harvested from a specific area of the Kingdom may
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be dangerous or injurious to persons consuming that food, it may by order prohibit
the importation, cultivation, taking, harvesting or obtaining of that food.
13 Authority’s emergency powers
In the case of emergency or sudden necessity, in order to prevent or reduce the risk
of a serious danger to public health or to mitigate the adverse consequences of a
danger to public health, the Authority may by order:
(a) totally prohibit the production, manufacture, preparation or sale of any food of
the class specified by the Authority;
(b) impose conditions on the production, manufacture, preparation or sale of any
food of that class;
(c) recall or otherwise cause to be removed from circulation any food of the class
specified by the Authority in accordance with prescribed procedures;
(d) cause any food to be tested or examined as prescribed;
(e) cause any food to be held or isolated in any place and prohibit the removal of
food from that place for such time as the Authority may prescribe; and
(f) cause any food to be destroyed or otherwise disposed of as the Authority sees
fit.
14 Food businesses
(1) All premises, including warehouses used for the preparation, sale, exposure or
storage of food shall comply with the standards prescribed in regulations
made under this Act.
(2) All food businesses shall apply for a licence in accordance with the
procedures to be prescribed in regulations under this Act.
15 Traceability
(1) Food businesses shall establish and implement a system enabling them to
identify any person who was a:
(a) supplier; or
(b) receiver;
of a food producing animal, food or substance intended to be or expected to
be incorporated into a food.
(2) Upon request of the Authority, food businesses shall make available all
information collected under the system established under sub-section (1).
Section 16 Food Act 2014
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16 Hygiene rules
Food businesses and their employees shall comply with all applicable hygiene rules
established under this Act.
17 Labelling
(1) Every package of food intended for sale in the Kingdom shall contain a label
which:
(a) permits its traceability;
(b) sets out such particulars as may be prescribed; and
(c) is in the English or Tongan language or a combination of both.
(2) Where food other than packaged food is displayed for sale, it shall be labelled
as prescribed in regulations made under this Act.
PART IV – INSPECTIONS
18 Objects of inspections
Authorised officers appointed under this Act shall have powers to inspect -
(a) food businesses and their surroundings and installations, as well as means of
transportation, equipment and materials;
(b) food ingredients, additives, disinfectants and any substance or processes used
in the production, manufacturing or handling of food;
(c) employees employed at the food business;
(d) packaging material;
(e) cleaning, disinfecting and maintenance at the food business; and
(f) labelling.
19 Powers of authorized officers
(1) Authorized officer shall have power to enter, at a reasonable hour without a
warrant, any food business, premises, vehicle, ship, aircraft or other
conveyance for the purpose of -
(a) inspecting, searching and examining ingredient, food or appliances;
(b) conducting such investigation and examination as are necessary to
determine whether an offence has been committed or an obligation in
relation to the standards and hygiene rules has been breached;
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(c) requiring the production of any document relevant to the activity,
matter or thing under investigation including any licence or permit
required by this Act;
(d) monitoring any work carried out in the premises;
(e) reading any values recorded by measuring instruments installed on the
premises or by instruments in the possession of the authorized officer;
(f) taking photographs;
(g) seizing any ingredient, food, appliance or document reasonably
suspected of being used contrary to the provisions of this Act; and
(h) requiring from any person any assistance that is relevant to the
investigation or examination activity.
(2) For the purpose of sub-section 1(g), the authorized officer shall provide the
owner or occupier of the premises with a receipt signed by both the authorized
officer and the owner or occupier of the premises.
(3) An authorized officer exercising his authority under this section may request
the presence and assistance of a police officer as he may consider necessary.
(4) An authorized officer shall, for the purposes of searching such persons, have
the power to stop, search and detain any person whom he has reasonable
grounds to believe has committed an offence under this Act.
(5) An authorized officer shall have power to arrest any person whom he has
reasonable grounds to believe has committed an offence under this Act.
(6) An authorized officer shall produce his official identification card upon
request by any person affected by the exercise or performance of the
authorized officer’s power, duty or function under this Act.
20 Rights and duties of owners and persons in charge of food businesses
During an inspection carried out under section 19, the owner or other person in
charge of the food business or any employee present at the food business -
(a) may accompany the authorized officer;
(b) shall supply any information or documents requested by the authorized officer
relating to installations, appliances, materials, procedures, processes or other
matters relevant to any inspection; and
(c) shall permit the taking of samples and the gathering of evidence including
photographs.
21 Improvement notice
If an authorized officer has reasonable grounds for believing that an owner or person
in charge of a food business is failing to comply with this Act, he may serve an
improvement notice on that owner or person in charge:
Section 22 Food Act 2014
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(a) stating the authorized officer’s grounds for believing that this Act is not being
complied with;
(b) specifying the measures which the authorized officer deems that the owner or
person in charge shall take in order to remedy the failures referred to in
paragraph (a); and
(c) requiring the owner or person in charge to implement those measures, or
measures which are at least equivalent to them, within the time period
specified in the notice.
22 Food unfit for consumption
(1) Where it appears that any food at a food business is unfit for human
consumption or is likely to cause harm or danger to human health, an
authorized officer shall -
(a) seize and seal such food, and issue a written notice to the owner or
person in charge of the food business that the food or any specified
portion of it is temporarily not to be sold, removed, manipulated,
tampered with or otherwise altered without the authorization of the
authorized officer;
(b) issue a written notice temporarily ordering the food removed to a
specified place; or
(c) issue a written notice ordering the immediate destruction of the food.
(2) Where any action is taken under sub-section (1) because of a threat to human
health, the authorized officer shall immediately notify the Authority which
shall take action to notify other relevant governmental and non-governmental
parties so that all measures necessary to ensure public safety and the
protection of consumers, including public warnings, recall orders, marketing
restrictions, marketing bans or other appropriate measures may be adopted.
(3) As soon as practicable, and in any event within 14 days, an authorized officer
acting under sub-section (1)(a) or (b) shall review the situation at the affected
food business to determine whether the circumstances that caused the notice
no longer exist, and if the authorized officer:
(a) is so satisfied, he shall withdraw the notice and where appropriate,
allow the release of any food from the place where it is stored; or
(b) is not so satisfied, he may order that any such food be destroyed or
disposed of so as to prevent its being used for human consumption, and
shall supervise the destruction of such food.
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PART V – IMPORT AND EXPORT
23 Requirements for imported food
(1) No article of food shall be imported into the Kingdom unless it is
accompanied by the prescribed documents and unless it is offered up for
inspection by the Authority at the port of entry.
(2) The Minister on the advice of the Council may by regulation provide that
certain articles of food shall not be imported into the Kingdom unless they
have been produced or manufactured in accordance with the prescribed
standards.
24 Inspection and sampling
(1) An authorized officer may inspect any food imported into the Kingdom and,
for the purpose of analysis or inspection thereof, take samples of any such
food.
(2) Without prejudice to the provisions of sub-section (1), the Minister may, on
the basis of risk assessments, by order declare any foods to be high risk foods
and any such food when imported into the Kingdom shall be subject to
mandatory inspection, sampling and analysis and may only be released for
distribution and sale if the results of the inspection, sampling and analysis
confirm their fitness for human consumption.
(3) Where samples are taken under sub-section (1), the authorized officer shall, in
the presence of the owner or importer or any person in control of the food,
seal and mark them as prescribed.
(4) Where a sample is taken pursuant to sub-section (1), the consignment from
which it was taken shall not be released by an authorized officer except upon
production of an official analyst’s certificate to the effect that the food
complies with the requirements of this Act.
(5) The costs of any inspection, analysis and storage while analysis is being
performed shall be borne by the importer.
25 Re-labelling and re-conditioning
(1) Subject to the provisions of sub-section (2), the importation of any food which
does not comply with the provisions of this Act is prohibited.
(2) Where any article of food sought to be imported into the Kingdom would, if
sold in the Kingdom constitute a contravention of this Act, the Authority may
nonetheless permit its importation solely for the purpose of re-labelling or re-
conditioning as prescribed.
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(3) In the event that any re-labelling or re-conditioning authorized under sub-
section (2) is not carried out within the prescribed time period, the importer
shall export or destroy such food at his expense.
(4) Where an importer fails to export or to destroy imported food as required
under sub-section (3), the Authority may order the destruction of or may
destroy the imported food.
(5) The Authority’s decision to order the destruction of or to destroy the food
under sub-section (4) shall not prevent the Government from later recovering
the costs of such destruction from the importer as a debt.
26 Requirements for the export of food
(1) No item of food shall be exported from the Kingdom unless it has been
certified by the Authority in accordance with prescribed procedures as:
(a) being fit for human consumption;
(b) having been produced, manufactured or processed in accordance with
prescribed standards; and
(c) meeting the requirements of the importing country.
(2) The Authority shall be the competent authority for purposes of certification of
food items for export.
PART VI – OFFENCES AND PENALTIES
27 Sale of unwholesome food
(1) Any person who sells any food that-
(a) has in or upon it any poisonous or harmful substance;
(b) is not wholesome or is otherwise unfit for human consumption;
(c) is adulterated; or
(d) is injurious to human health;
commits an offence.
(2) In determining whether an article of food is injurious to human health, due
regard shall be given not only to the probable effect of such food on the health
of a person consuming it, but also to the probable cumulative effect of articles
of substantially similar composition on the health of a person consuming such
articles in ordinary quantities.
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28 Sale of food not meeting standards
(1) Any person who prepares or sells any food for which there is a prescribed
standard commits an offence unless the food complies with that standard.
(2) Any person who sells any food which bears or has attached to it, or is
contained in a package which bears or has attached to it, a name for a food for
which there is a prescribed standard commits an offence unless the food
complies with the prescribed standard for that food.
29 False or misleading labelling
(1) Any person who packs or labels any food in a manner which is false or
misleading or which does not comply with the labelling standards prescribed
under this Act commits an offence.
(2) Any person who sells any food with a false or misleading label or a label that
does not comply with the labelling standards prescribed under this Act
commits an offence.
30 General offences
Any person who-
(a) prepares, stores, handles or sells food under unsanitary conditions;
(b) imports, exports, produces, manufactures, prepares, stores or sells food which
otherwise violates any provision of this Act;
(c) operates a food business without any licence required by this Act;
(d) fails to comply with an order issued under section 12 or 13;
(e) fails to establish and implement a traceability system in accordance with
section 15(1);
(f) fails to follow the applicable hygiene rules established under this Act;
(g) fails to ensure that all employees of a food business follow prescribed
procedures;
(h) fails to label food as prescribed under section 17;
(i) fails to comply with an improvement notice issued under section 21;
(j) tampers with any food samples taken under this Act;
(k) breaks any seal or alters any markings made by an authorized officer without
permission;
(l) gives false information to an authorized officer;
(m) attempts to improperly influence an authorized officer in the exercise of his
official functions under this Act; or
Section 31 Food Act 2014
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(n) poses as an authorized officer;
commits an offence.
31 Offences by authorized officers
An authorized officer who -
(a) seizes food for any reason other than those prescribed in this Act;
(b) discloses any information acquired in the course of exercising his official
functions under this Act except where required to do so by his supervisor or
by any Court; or
(c) accepts any monetary or other benefit from a person affected by the exercise
of official powers under this Act;
commits an offence
32 Publishing false or misleading advertisements
Any person who, for the purpose of effecting or promoting the sale of any food,
publishes or causes to be published an advertisement which is false or misleading
commits an offence.
33 Offences by bodies corporate
Where an offence under this Act which has been committed by a body corporate is
proven to have been committed with the consent or connivance of, or to be
attributable to any neglect on the part of:
(a) any director, chief executive officer, manager or other similar officer of the
body corporate; or
(b) any person who was purporting to act in the capacity of a director, chief
executive officer, manager or similar officer;
that person as well as the body corporate shall be deemed to be guilty of the offence
and shall be liable to be proceeded against and punished accordingly.
34 Penalties
(1) Any person who commits an offence under this Act shall be liable upon
conviction –
(a) if it is an individual:
(i) in the case of a first time offence to a fine not exceeding $10,000
or to imprisonment for a period not exceeding 3 years or both;
Food Act 2014 Section 35
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Act 18 of 2014 Page 21
(ii) in the case of a subsequent offence to a fine not exceeding
$20,000 or to imprisonment for a period not exceeding 5 years or
both; and
(iii) where the offence is a continuing offence, to an additional fine
not exceeding $300 or imprisonment for 30 days for each day on
which the offence continues; and
(b) if it is a body corporate:
(i) in the case of a first time offence to a fine not exceeding $50,000;
(ii) in the case of a subsequent offence to a fine not exceeding
$100,000; and
(iii) where the offence is a continuing offence, to an additional fine
not exceeding $5,000 for each day on which the offence
continues.
(2) Upon conviction of any person for any offence under this Act, the Court may,
in addition to any other sentence imposed -
(a) suspend or cancel any licence to operate a food business issued to the
convicted person; and
(b) declare any food, appliance, product, material, substance or other object
in respect of which the offence has been committed or which was used
in connection with the commission of the offence forfeited to the state
and disposed of as the Court may direct.
35 Additional penalties
(1) If the owner of a food business is convicted of an offence under this Act, the
Court before which he is convicted may by order impose a temporary or
permanent prohibition:
(a) on the use of a particular process or particular equipment at the food
business;
(b) on the use of the premises for the purposes of running a food business;
or
(c) on the participation by the owner in the management of the food
business with respect to which the offence was committed or with
respect to any food business in the Kingdom.
(2) A Court shall cancel a temporary order issued under sub-section (1) where an
authorized officer certifies that the conditions which led to the issuance of the
order are no longer in effect.
Section 36 Food Act 2014
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PART VI – MISCELLANEOUS
36 Right of appeal
Any person aggrieved by an action or decision of an authorized officer or an official
analyst under this Act may appeal to the Council within the prescribed time period
and the decision of the Council shall be final.
37 Good faith defence
An authorized officer, official analyst or other representative of the Authority shall
not be liable to suit or to prosecution in respect of anything done in good faith in the
performance of his functions under this Act.
38 Presumptions
(1) In any proceedings under this Act, a certificate of analysis purporting to be
signed by the director or head of an official laboratory or by an official analyst
shall be accepted as prima facie evidence of the facts.
(2) Evidence that a package containing any food to which this Act applies bore a
name, address or registered trademark of the food business or person by
whom it was produced, manufactured or packed, shall be prima facie evidence
that such food was produced, manufactured or packed, as the case may be by
that food business or person.
(3) Any substance commonly used for human consumption, if sold or offered, or
exposed or kept for sale, shall be presumed, until the contrary is proved, to
have been sold or, as the case may be, to have been or to be intended for sale
for human consumption
(4) Any substance commonly used for human consumption shall be presumed,
until the contrary is proved, to be intended for human consumption -
(a) when found on premises used for the preparation, storage or sale of that
substance; and
(b) any substance commonly used in the production or manufacture of
articles for human consumption which is found on premises used for
the preparation, storage or sale of those articles.
(5) Any substance capable of being used in the composition or preparation of any
article commonly used for human consumption which is found on premises in
which that article is prepared shall, until the contrary is proved, be presumed
to be intended for such use.
(6) Where any person demands any food by a name prescribed for a food for
which there is a standard prescribed, he shall be deemed to have demanded
food which complies with that standard.
Food Act 2014 Section 39
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Act 18 of 2014 Page 23
39 General defences
(1) In any proceedings for an offence under this Act it shall be a defence for the
accused to establish that he could not with reasonable diligence have
ascertained that the sale of the food would contravene this Act.
(2) It shall be a defence under section 29 to prove that someone could not
reasonably have ascertained that the packaging or labelling was false or
misleading.
40 Defences with regard to advertisements
In any proceedings under section 32 -
(a) it shall be up to the defendant to prove that he did not publish the
advertisement or did not cause it to be published; and
(b) it shall be a defence for the defendant to prove either:
(i) that he did not know or could not with reasonable diligence have
ascertained that the advertisement was false or misleading; or
(ii) that, being a person whose business it is to publish or arrange for the
publication of advertisements, he received it in the ordinary course of
business and did not make any material alterations to it.
41 Regulations
(1) The Minister may, with the consent of Cabinet, make regulations for the
purpose of carrying out the provisions of this Act, and shall include but not
limited to the following -
(a) the control of the cultivation, production, manufacture, storage,
transport, packing, packaging, labelling and sale of all types of food,
including food that is organically produced, genetically modified,
dietetic or intended for infants or other population groups;
(b) the preparation, handling and serving of food;
(c) the construction, inspection and maintenance of food businesses,
including hotels, boarding houses, guest houses, markets, grocery stores
and businesses selling street food;
(d) the places at which, and the conditions under which, animals are
slaughtered for human consumption;
(e) the places at which, and the conditions under which, poultry, fish
products, dairy products and other foods of animal origin are produced,
processed or packaged for sale;
(f) the places at which, and the conditions under which, crops are produced
for food;
Section 42 Food Act 2014
Page 24 Act 18 of 2014
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(g) the importation and exportation of foods, including any required
documentation, inspection and certification procedures;
(h) the procedures applicable for the issuance, suspension and cancellation
of licences to operate a food business;
(i) the acceptable levels of food additives, environmental contaminants,
veterinary drugs, pesticides and other residues or other chemical and
microbiological contaminants in foods;
(j) the procedures to be followed by authorized officers, official analysts
and official laboratories in the exercise of their functions under this
Act;
(k) food standards generally;
(l) the disposal or destruction of unsafe food;
(m) the fees payable in respect of the inspection and analysis of food;
(n) the forms to be used for the purposes of this Act, including
applications, licences, permits, improvement notices and receipts for
articles seized;
(o) offences and penalties; or
(p) any other matters deemed necessary to achieve the purposes of this Act.
(2) Notwithstanding the provisions of sub-section (1)(k), the standards, rules and
recommended practices contained in the Codex Alimentarius adopted by the
Codex Alimentarius Commission shall be deemed to apply as regulations
under this Act until such time that regulations on food standards are made by
the Minister.
42 Act shall prevail
In the event of any conflict or inconsistency between the provisions of this Act and
any other enactment, apart from the Act of the Constitution of Tonga, in force in the
Kingdom, the provisions of this Act shall prevail.
43 Act binds the Crown
This Act binds the Crown.
Passed by the Legislative Assembly this 30
th
day of July 2014.