A Comprehensive Analysis of the Food and Feed Safety Control Co-ordination Bill, 2023

Food and feed safety is a global trending issue of discussion. Kenya is at the forefront of ensuring that the foods and feeds consumed by the people, animals and plants are safe for use and comply with global standards.

The Food and Feed Safety Control Co-ordination Bill, 2023 (“the Bill”) aims at:

1. Providing for the coordination of the public institutions in the control of food and feed safety
2. Establishing the Office of the Food Safety Controller
3. Providing for the role of County Governments in food and feed safety
4. Coordinating the performance of the function of competent authorities
5. Enhancing accountability in the implementation of official control; and
6. Providing regulation for connected purposes.

The Guiding Principles

The guiding principles in implementing the proposed Act are drawn from the robust constitutional provisions, international best standards and practices and statutory provisions and they are:

1. The protection of human life and health
2. The protection of consumer interests in the conduct of food and feed business
3. The promotion of the use of scientific based risk analysis
4. The promotion of food and feed safety
5. The promotion of fair-trade practices in the conduct of food and feed business; and
6. Efficiency in the performance of official control.

 

Multi Annual National Control Plan

The Bill mandates that all Competent Authorities and Subject Matter Specialists to develop and annually review a Multi Annual National Control Plan as the foundation for controlling food and feed business operators in the country. This Plan must:

1. Outline the competent authorities, subject matter specialists, their tasks, and the policies, strategies, laws, standards, and procedures they apply in the official control of food safety;
2. Define the strategic objectives of each Competent Authority and Subject Matter Specialist, ensuring that the prioritization of controls and allocation of resources reflect these objectives;
3. For each Competent Authority and Subject Matter Specialist performing official control of food safety, describe a risk-based categorization of the necessary activities;
4. Provide an overview of the general organization and management of official controls at both the national and county levels, including in individual establishments;
5. Describe the control systems applied across various food and feed sectors and the cooperation among the competent authorities responsible for official controls within those sectors;
6. Outline a mechanism for the continuous training of personnel performing official controls;
7. Detail the method of documenting procedures for official control and reporting;
8. Outline the organization and operation of contingency plans for foodborne or animal disease emergencies, feed and food contamination incidents, and other health risks to humans, animals, and the environment; and
9. Describe the procedures for cooperation between each Competent Authority and international competent authorities for mutual assistance.

This plan will ensure a coordinated, risk-based oversight of food and feed safety across all stages of production and will promote consistent standards, efficient resource allocation, and enhanced emergency preparedness.

 

The Office of the Food Safety Controller

If the Bill is passed by Parliament, this office will be a body corporate with perpetual succession and a common seal.

The Food Safety Controller shall be appointed by the President and approved by Parliament. Any recruitment in the event of a vacancy shall be initiated by the Public Service Commission.

It is proposed that the functions of the Controller shall be to:

1. Coordinate the competent authorities through implementation of the multi-annual control plan
2. Coordinate the development and renewal of the multi-annual national control plan
3. Monitor and evaluate the implementation of a multi-annual control plan at the national level
4. Liaise with competent authorities to identify and advice on policy gaps and inadequate regulations in food and feed safety
5. Assess the adequacy of food and feed safety preparedness and make recommendations to the relevant competent authority
6. Establish an information management system for food and feed safety
7. Verify that competent authorities have in place effective official control
8. Prepared an annual report on the state of food and feed safety in Kenya
9. Appoint compliance officers where necessary to assist in discharging the mandate of the Controller. For instance, to conduct visits and inspections, examine licenses, registers and records, take samples for analysis among others; and
10. Perform such other duties as may be necessary to ensure food and feed safety.

 

Remuneration of the Controller and Staff

Their remuneration and allowances shall be determined by the Salaries and Remuneration Commission.

 

Competent Authorities

The Bill proposes that the Office of the Controller will work with other government agencies and ministries in exercise of its mandate. These are the competent authorities.

As provided under the First Schedule of the proposed Act, these are; the Ministry responsible for public health and medical services, the Ministry responsible for matters relating to veterinary services, crop development and livestock development, the Ministry responsible for fisheries, the Agriculture and Food Authority, the Kenya Dairy Board, the Kenya Plant Health Inspectorate Service, the Pest Control Products Board, the Fertilizer and Animal Foodstuff Board, the National Biosafety Authority and the Kenya Bureau of Standards.

 

The Functions of County Government in Food and Feed Safety

County governments shall work together to with the Controller and their mandate shall be to:

1. Implement and enforce food and feed safety
2. License and exercise official control of persons who conduct food and feed business
3. Conduct capacity building on food and feed safety
4. Conduct public awareness on matters food and feed safety
5. Prepare food and feed safety reports
6. Provide a platform for the consultation and cooperation of the county governments and stakeholders in the implementation of a multi-annual control plan
7. Conduct audits to ascertain compliance and enforcement of food and feed safety measures
8. Coordinate food and feed safety activities
9. Regulate and enforce official control; and
10. Monitor and evaluate implementation of the multi-annual control plan.

 

Reporting

It is proposed that every competent authority shall prepare and submit a report on the measures taken to ensure food or feed safety to the office of the Controller at least thirty (30) days before the end of a financial year.

Upon receipt of the reports, the Controller shall analyze the reports and provide feedback to the competent authorities and within three (3) months after the end of a financial year, provide an annual report on the state of food and feed safety in the county and submit to the Cabinet Secretary, all the County Governors and the Competent Authorities.

Upon receipt of the report, the Cabinet Secretary shall submit the report to Parliament.

 

Funding of the Office of the Controller

It is proposed that the funds of the Office of the Controller shall consist of money appropriated by Parliament, grants, gifts, donations or endowment funds and any other funds that may accrue to the office in the performance of its functions.

The Controller is required to prepare estimates of the revenue and expenditure of the office at least three months before commencement of each financial year.

 

Subsidiary Regulation

The Cabinet Secretary in consultation with the Controller shall make regulations to ensure that the functions of the Office of the Controller are carried out effectively. The regulations may provide for the conduct of risk analysis, the traceability of food, third party authorization, the designation of laboratories for official control and any other matters necessary for better realization of the object of the Act.

 

A Critique of the Bill

• It can be noted that the Bill does not provide for dispute resolution mechanisms especially where a consumer, a business entity or an entrepreneur is aggrieved by the decision of the compliance officer or the Controller.
• There is a likelihood that the functions of the Office of the Controller as provided in the Bill overlap and duplicate with mandate of the Kenya Bureau of Standards as established by the Standards Act, Cap. 496, Laws of Kenya. This will lead to wastage of public funds through wages, salaries and expenditures associated with the Office of the Controller.
• The qualifications of compliance officers are not provided for.
• If passed by Parliament and implemented to the latter, the Act will go a long way in ensuring that food and feed safety control measures are achieved hence alleviating and reducing the risk factors that flora and fauna are exposed to.

 

Please note that this is a general commentary intended to provide general information. It should not be taken as legal advice. For specific legal concerns or situations, clients should consult with a lawyer from B M Musau & Company, Advocates LLP directly.