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A heavy handed Food Safe Act destabilizes the economy

Nuku'alofa, Tonga


While an Act that protects Tongans from unsafe food would be welcome, this Act would go much much further than that. It would give the Government, through the creation of a National Food Authority and a National Food Council, and along with the powers of the Minister, the power to regulate every aspect of food production, import, export and consumption in the Kingdom, from Church feasts to markets stalls.

It also would set up its own police force that would have the power to enter premises, and search, seize and arrest all without a warrant.

The Bill states that “All food businesses shall apply for a license in accordance with the procedures to be prescribed in regulations under this Act.” Presumably, that includes everyone selling food, even market stalls. The cost of those licenses is not included in the Bill.

Among the responsibilities of the food businesses is: “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.” That means, anytime you buy a banana from a roadside stall, they would legally need to take down your name.

And farmers will need to wash up before selling by the side of the road as “Food businesses and their employees shall comply with all applicable hygiene rules established under this Act.” In fact, it’s even broader than that: Any person who prepares, stores, handles or sells food under unsanitary conditions […] commits an offence.” So, given the way the Bill is now written, if your kitchen is a mess, and you cook your kids dinner, you have committed an offence.

Also, all food must be labeled. It is not enough that a banana looks like a banana “Where food other than packaged food is displayed for sale, it shall be labeled as prescribed in regulations made under this Act.”

To ensure the many regulations are followed, the Act will also establish its own police force, which will have powers that the real police will envy. The Bill states: “Authorized officer shall have power to enter without a warrant at any time any food business, premises, vehicle, ship, aircraft or other conveyance for the purpose of  [among others]:

           -  inspecting, searching and examining ingredient, food or appliances;

            - monitoring any work carried out in the premises;

            - seizing any ingredient, food, appliance or document reasonably suspected of being used contrary to the provisions of this Act;

            - 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.

            An authorized officer shall have power to arrest any person whom he has reasonable grounds to believe has committed an offence under this Act.”

So the officers can, without a warrant, come in to any premise where there is food and search, seize and arrest.

Actually it is even wider than that as the Bill also says: “Authorised officers appointed under this Act shall have powers to inspect - food businesses and their surroundings and installations, as well as means of transportation, equipment and materials; [and]  employees employed at the food business.”

This can mean farms, farm buildings, casual labourers, etc. Given that many people in Tonga, including the Nobles, are associated in some way or another in food production, these warrantless fishing expeditions can  cover a substantial portion of the country and its economy.

These extremely powerful officers are also protected under the Act: “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.”

And the activities of the Authority itself are not automatically transparent: “Members of the public may attend meetings of the Council if authorized by the Chair.” 

Meanwhile, for those found guilty of food crimes, penalties can be steep: “if it is an individual: 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”.

As for how all this will be funded, the officers can take whatever ‘samples’ they like and “The costs of any inspection, analysis and storage while analysis is being performed shall be borne by the importer.” However, even this is not likely to be enough to cover costs and so “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.”

This vague wording on funding, combined with no explicit plans for publications of the amounts and sources of the grants, subsidies, donations or gifts, raises serous questions of transparency and impartiality. For example, in an extreme case, say there are “donations” from a foreign agribusiness that wants to import taro into Tonga. The company can give grants to the Authority earmarked for the hiring of agricultural inspectors who may find unhygienic conditions in the Tongan taro fields and declare the local supply unfit for human consumption, requiring importation for domestic consumption.

The Bill also allows for some explicit activity which could bring disrepute to the reputation of Tonga. “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-labeling or re- conditioning as prescribed.

If some of this sounds like it may be legally dubious (warrantless searches, re-labeling of substandard produce,  etc.), don’t worry, the Bill covers that as well. “In the event of any conflict or inconsistency between the provisions of this Act and any other enactment in force in the Kingdom, the provisions of this Act shall prevail.” In other words, this Act would be more powerful than the Constitution.

While a food safe Act could benefit Tongans, the Bill as proposed has the potential to cripple the domestic economy, especially small and informal business, and open new pathways for intimidation and corruption. Heavy-handed regulations may make sense for the European Union, but for Tonga this is potentially a deeply destabilizing Act.

Samisoni Tuloa

Sam [dot] tuloa [at] gmail [dot] com