Food safety in Nigeria: The law and preventing the next Fanta/Sprite food scandal

In recent times, people all over the world, including Nigerians, have become more cautious with regard to the food they consume. Gone are the days when grocery shopping only consisted of picking up food items from the rack and paying for them at the cash counter. People now pay attention to the food items, the mode of production and the ingredients used in the process of manufacturing.

Consumers have come to realise that it is not enough to have wealth, but it also important to have good health to enjoy said wealth. The healthy lifestyle choice which is now on consumers mind has led to the increase in organic living and an increase in the purchase of organic products. Consumers are now interested in real quality food, positive nutrition, less processed (fresh) foods and beverages.

More than ever, consumers now pay attention to the integrity and authenticity of food manufactures. This new trend and the buzz emanating therefrom has sparked discussions on the need for adequate consumer protection laws in the food industry.

Food quality is still an issue in Nigeria

The recent ruling of the Lagos State High Court in the case Fijabi Adebo Holdings Limited & Anor v. Nigerian Bottling Company Plc & Anor LD/13/2008 (unreported) that Fanta and Sprite contain excessive levels of benzoic acid and sunset additives which make them unsafe for human consumption has led to a lot of controversy and discussion on the quality of food and drinks produced in Nigeria for human consumption.

Consumers have a right to expect that the foods they purchase and consume will be safe and fit for their consumption. There have been instances of people finding insects in soft drinks and purchasing expired or contaminated food products. Furthermore, the abuse and misuse of chemicals used by farmers for storage is a major concern. Consumers have a right to voice their opinion about the laws governing food control, the food control procedures, standards and activities that governments and industries employ to ensure that the foods being produced are of the highest quality.

In Nigeria, various laws and regulations have been enacted over the years to ensure the safety and wholesomeness of the nation’s food production and consumption. These laws include the Standards Organization Act, 2015; the Food and Drug Act, 1976; the National Agency for Food and Drugs Administration and Control Act, 1992; and the Consumer Protection Agency Law of Lagos State, 2014.

Various regulatory bodies have also been established to effect consumer protection and food control measures in Nigeria. These regulatory institutions are responsible for monitoring all foods produced, processed and marketed within the country including imported food. They include the Federal Ministry of Health; the National Agency for Food and Drug Administration and Control; the Consumer Protection Council and the Standards Organisation of Nigeria.

Although these laws and institutions are responsible for quality control of food, drinks and drugs, the recent reports and complaints have resulted in doubts and speculations as to the effectiveness of these laws and regulatory institutions.

Food consumer rights under Nigerian law

In Nigeria, a consumer may bring an action for the violation of his consumer rights under torts, contract law, or even criminal law. Under Torts, he may bring an action for negligence, showing the elements required which are: the existence of a duty of care; a breach of that duty; and damage suffered.

Under contract law, the Sale of Goods Act 1893 makes provision for consumer remedies for a defective product in terms of implied conditions and warranty. In the absence of clearly stated express terms, these implied terms are relied upon by the Courts.

Under the Act, goods are required to be fit for purpose and be of merchantable quality. Also, there are offences in relation to the manufacture and distribution of substandard food products within the country; for example, Section 243 of the Criminal Code criminalises the sale of food or drink that is unfit for human consumption.

The unwholesome reality

Despite this, there are various challenges affecting consumer protection in the food industry in Nigeria. These include: inadequate and ineffective powers under the law; an overlap of functions resulting in over-regulation of the industry; the lack of effective regulation of street food vending; the high number of fake/substandard products; the high cost of manufacturing food products which results in an overemphasis on maximisation of profits; inadequate and ineffective sanctions for violators of food production regulations to deter manufacturers from taking shortcuts in food production.

In order to address these challenges, it is recommended that food legislation be reviewed and amended. An effective food legislation should be based on high quality, transparent and independent scientific advice; include the right of consumers to have access to accurate and sufficient information; provide for tracing of food products and for their recall in case of problems; include clear provisions indicating that the primary responsibility for food safety and quality rests with the producers.

A way out

The proficient, unequivocal and decisive legislation goes a long way. It is when there is such legislation in place that implementation can be reasonably possible. For example, Section 2(b) of the Consumer Protection Council Act which provides for the call back of substandard products that have been released to the public should be amended to expressly state the party responsible for the call back; the regulatory body that will supervise the call-back; the party responsible for the costs of the call-back and the timeframe for the call-back of the product.

Furthermore, there should be proper identification of the role of each agency to avoid duplication of efforts and to bring about a measure of coherence among them. The government should also encourage voluntary compliance with set standards of food production in Nigeria.

Another basic method of consumer protection in the food industry is proper food labelling. Food labelling is the primary means of informing the consumer about the food they are purchasing. The legislation on food labelling guides the producers on the design of labels, for example, on size, position and layout of important information and the wordings to be used. Scientific research has increased our knowledge about food production, safety, and what is healthy.

Providing more information on food labels helps the consumer make choices relating to ingredients, diet, health, quality, taste, traceability, safety, sustainability and even ethics of food production. Proper food labelling also provides the consumer with basic information about the product they wish to consume, such as the ingredients, nutrition, origin and safety information — including storage life, handling, preparation instructions and allergens.

In conclusion, there is no gainsaying the fact that consumption of substandard food is a major detriment to the proper functioning of the human body and will affect the society in the long run. The government, as an interested party in keeping the nation humming and growing, is encouraged take effective measures to curb the scourge of substandard and fake food in Nigeria.

Eunice Alasa is an associate with one of Nigeria’s top corporate/commercial law firms.