Regarding the food premises-related legal registration process in Sri Lanka, there are issues such as the need to clear disparities in the interpretation of the term 'premises' and the type of premises needing registration, while the inspection of premises for registration should be done by a third party other than the authorised officers, and there should be the development of different inspection formats instead of the current single inspection format.
These observations and recommendations were made in an original research article on the ‘Process of registrations under the food law: A comparative review of the New South Wales (Australia) and Sri Lankan contexts’ which was authored by C.A. Hettiarachchi and J. Wardle (both attached to the University of Technology Sydney's Faculty of Health's School/Department of Public Health), and S. Nandasena (attached to the Ministry of Health) and published in the Journal of the College of Community Physicians of Sri Lanka's 26th Volume's Fourth Issue in December 2020.
Registration is the initial step of food-related surveillance. Unlike registration as a departmental requirement (i.e. a regulatory instrument), legal registration is stronger as it is required by the law of the country (i.e. a legislative instrument). Legal registration is mandatory and the failure to register becomes an offence.
Clarifying definitions
The purpose of the legal registration of a food-related business or premise is not only for surveillance, but it also serves as the backbone of food safety. Sri Lanka initially introduced the registration process through the Food and Drug Act, No. 25 of 1949, the predecessor of the current Food Act, No. 26 of 1980 (hereinafter referred to as the Act). The Act re-introduced the process of registration. However, the implementation process did not take place until the gazetting of the Food (Registration of Premises) Regulations in 2019 (hereinafter referred to as the Regulation). The enforcement date of the said Regulation was 1 January 2020, meaning that it took 20 years to implement the legal process of the registration of food businesses and premises in Sri Lanka.
The Sri Lankan law registers ‘premises’ as a ‘location'. The Consumer Affairs Authority Act, No. 9 of 2003 stipulates to register businesses, and similar provisions exist also in the Local Government laws but these tend to focus on consumer related law or other provisions rather than on public health laws focused on food safety. The Sri Lankan approach on registering premises requires multiple registrations if the same business operates in multiple premises.
The definition of food premises in Sri Lanka includes the definition in the Food Act (any shop, stall, or place where any food is sold or manufactured or stored for sale) and the definition in the Regulation (any building or area in which food is handled for commercial purposes and its surroundings under the control of the same management). Sri Lanka has two different and sometimes inconsistent definitions to 'food premises' in different legislations: one definition in the Food Act and another in the Regulation. The definition given in the Regulation is more restricted as non-commercial food handling places are excluded. Additionally, the definition of premises under the Regulation includes “surroundings under the control of the same management”, which leads to potential confusion around boundaries. Legislators may also attempt to follow the definition of a ‘Food Establishment’ given in the Food (Hygiene) Regulations, 2011 (any building or area in which food is handled and the surroundings under the control of the same management). By principle, there should be only one consistent definition, and the most valid definition is likely to be the definition given in the Food Act, which is the 'mother Act' or 'primary Act', which is held to have more authority over its Regulations.
In Sri Lanka, all premises are required to be registered at the Food Authority. In Sri Lanka, all premises need to be registered with the 'Food Authorities' which are localised bodies. For Municipal Council (MC) areas, the 'Food Authority' is the MC, whereas, it is the Medical Officer of Health (MOH) in other areas as Urban Councils (UCs) and Pradeshiya Sabhas (PSs) are not yet approved by the Minister of Health as Food Authorities. Therefore, central control and oversight are lacking in Sri Lanka for all areas of food production except for bottle water manufacturers.
Exclusions for registration in Sri Lanka, according to the Act, do not exclude any premises while according to the Regulation, it is not clear as to whether it excludes premises in Schedule II or premises which provide food to premises in Schedule II. Sri Lanka has attempted to exempt certain premises by registration, but, these exemptions cannot be precisely or explicitly identified due to the ambiguity of the relevant provision in the Regulation. The Regulation offers two potential interpretations. The first interpretation is that the premises that need to be registered are the premises that handle food that provide goods to places set out in Schedule II of the Regulation, rather than primarily the places set out in that schedule. The second interpretation is that the premises that need to be registered are explicitly the premises set out in Schedule II of the Regulation. Fees for registration are stipulated in Schedule V of the Regulation. Since Schedule II and Schedule V of the Regulation are different, the most appropriate interpretation should be the first one.
However, this first interpretation is also not fully precise as institutions such as 'bakery', 'ice cream, confectioneries, yoghurt, curd, dessert manufacturing cottage industry' and 'ice manufacturing premises' which are stipulated in Schedule II are manufacturing processed food in their own premises without buying from any other premises. On the other hand, Section 7 of the Act stipulates to register (as amended in Act, No. 20 of 1991) all premises irrespective of the type. Therefore, Section 2 of the Regulation clashes with Section 7 of the Act. The legal principle is that any provision in a regulation which contravenes the provision of the relevant 'mother Act' or 'primary Act', which in this case is the Food Act, becomes null and void, which ultimately leads to a final outcome of registering all premises.
The process of registration in Sri Lanka involves that: the registration or notification can only be done by hand or post; a certificate is issued; a temporary certificate cannot be issued; the certificate is issued after an inspection; the inspecting officer is the same party (Authorised Officer) who is involved in prosecutions; the same inspection is available for all types of premises; the time limits have been specified; and that the certificate expires in two years.
Upgrades required
In Sri Lanka, even though it has the required technology as a country, the entire process remains manual and paper based, potentially leading to reduced efficiency and accessibility. A certificate is issued by the relevant Food Authority if the registration is accepted after the inspection procedure. Certificates are required to be displayed in the premises. Premises may include a vehicle according to the definition given by the Act even though specific provisions are not made. Sri Lankan consumers do not have opportunities for the visibility of such in the form of a label or sticker issued to food handling vehicles in addition to the certificate. The display of a certificate in the vehicle is still possible, but, a label or a sticker would be more consumer-friendly. No provisions exist in Sri Lanka to issue a temporary licence to handle cases of unexpected delays due to logistics, disasters and outbreak-related issues. Sri Lanka approves the registration only after an inspection by an Authorised Officer. In Sri Lanka, the inspection procedure and prosecution are performed by the same Authorised Officer, which can lead to potential conflicts of interest and corruption. Sri Lanka does have third party options within the Ministry of Health and in other Government organisations that could serve a similar role even though they have not been involved in this capacity previously. Sri Lankan Authorised Officers are not specifically allocated for food hygiene, as they are also allocated for communicable and non-communicable diseases, school health and environmental health. Therefore, invariably, the system runs towards inefficiency.
The Sri Lankan premises registration-related Regulation has provided a long list of criteria to be inspected prior to registration. All types of premises share the same criteria. On the other hand, these criteria are named as 'specifications' contrary to the Act which stipulate such as ‘conditions’. The legal meaning of a 'condition' in commercial law is a term of an agreement which forms the basis of the contract and is determined by the intention of the parties (Maredelanto Compania Naviera S.A. vs. Bergbau-Handel G.m.b.H./the Mihalis Angelos case, Court of Appeal of England and Wales). The Sale of Goods Ordinance, No. 11 of 1896 possesses a similar meaning. The violation of a condition leads to the cancellation of the contract, whereas other terms for which violations lead only to remedies are called warrants. Most of the specifications stipulated in the Regulation do not suit the definition to be 'conditions' as per its legal meaning, which may result in further difficulties in enforcement.
The Act's Section 7 stipulates two types of conditions. The first type relates to the decision as to whether the premises should be registered or not. These conditions are required to be officially gazetted by the Minister of Health as per Section 32 of the Act. The second type of condition is decided ad-hoc by the Food Authority at the time of issuing the certificate, and therefore, the Food Authority can decide on the conditions depending on the type of premises and circumstances at the time of issuing the certificate. These conditions cannot be predetermined as they vary based on the type of premises and individual circumstances. However, the food premises registration-related Regulation in Sri Lanka have largely failed to identify and apply the differences between these two types of conditions.
The Sri Lankan Regulation has attempted to stipulate a maximum time limit from application to approval. However, this has not been successful as time limits are not stipulated for certain mid-level procedures such as subsequent inspections by Authorised Officers in the case of deficiencies in the first inspection and for issuing certificates after the decision of the Regional Director of Health Services (RDHS) in the case of appeals.
Renewing certification
Sri Lankan registration certificates need to be renewed every two years through a process that is similar to a new registration. This ensures the continuity of food safety and the obligation of the owners to comply with the food safety related Regulation. The Act does not provide powers to the Food Authorities to cancel the registration unless by a court order, and therefore, automatic cancellations after two years is beneficial. However, due to the lack of specifically allocated human resources, this might impact the continuity of the food business, and therefore, more simplified processes may need to be introduced for renewal.
The fees of registration in Sri Lanka include: hotel or large resort (four-star or above) - Rs. 50,000; hotel or medium resort (three-star) - Rs. 30,000; hotel or large resort (all other) - Rs. 20,000; catering establishment - Rs. 10,000; supermarkets - Rs. 10, 000; restaurant or eating house - Rs. 5,000; ice cream, confectioneries, yoghurt, curd, or dessert manufacturing cottage industry - Rs. 5,000; food manufacturing or processing facility - Rs. 5,000; and all other - Rs. 3,000. In Sri Lanka, fees are not based on the number of food handlers or on hours work but rather on the type of food premises.
Recommendations
The registration of premises instead of businesses is reasonable in the Sri Lankan context. However, the disparities in the interpretation of the term 'premises' need to be cleared. This can be resolved by adopting the same definition stipulated in the Act by the Regulation or by explicitly referring to the definition in the Act itself. The type of premises needing registration is misleading in the Regulation and appears to contravene the Act. Therefore, all premises should be registered as stipulated in the Act until the Act is revised to adopt a simplified method.
If the inspection of premises for registration is done by a third party other than the Authorised Officers, it would improve the transparency as well as efficiency of the processes in Sri Lanka. As inspection procedures are not stipulated by the Act, there is no legal barrier to adopt such procedures. The specification stipulated by the Regulation does need to be revised and should be aligned with the directives given by the Act. Similarly, the current single inspection format is not appropriate to all food premises and different inspection formats need to therefore be developed.
Sri Lanka started the registration of food premises in 2020 after a long wait since the enactment of the Act. Therefore, registration is a process that is still novel in the Sri Lankan context. Additionally, as this registration is mostly performed by an MOH as the Food Authority in UC and PS areas, an in-depth analysis of the process that offers practical insights is of importance to public health.