The current situation regarding the COVID-19 pandemic and the lockdown South African is experiencing, which has led to the closure of many businesses considered non-essential such as restaurants, has also had an impact on the food manufacturing and retailing industries which are not only permitted to stay open but are critical to us all. The lockdown has led to an explosion in the delivery of foodstuffs from retailers.
As many readers will know, in June 2019 the new Regulations Governing General Hygiene Requirements for Food Premises, the Transport of Food and Related Matters, often referred to simply as R638, came into full force and effect. These regulations were promulgated in terms of the Foodstuffs, Cosmetics, and Disinfectants Act 54 of 1972 and is thus primarily concerned with public health issues relating to the production, distribution, and retailing of foodstuffs and in particular, food safety and hygiene at such premises and defines the obligations of the person in charge at such premises and the food handlers employed there.
Staff safety issues are primarily regulated under the Occupational Health and Safety Act 85 of 1993 and this law deals with a safe working environment and obligations of the employer and employee to provide and maintain a safe working environment for all employees.
In most cases there is a legal distinction between the person in charge of food premises and an employer at food premises.
Regulation 10 of R 638 sets out all the obligations of a person in charge of food premises and failure to carry out these obligations could result in prosecution of the person in charge, whether together with or without the employer being charged. In the present context the following two sub-regulations are important:
A person in charge of food premises must ensure that –
(2) the provisions of these Regulations are complied with;
(11) a condition. act or omission that may contaminate food does not arise or is not performed or permitted on the food premises;
(12) persons under his or her control, who handles food, at all times, meet the standards and requirements and execute the duties prescribed by regulations 9 and 11, respectively;
(15) the reporting of diseases and conditions contemplated in regulation 11(2)(b) are properly recorded and kept for perusal by an inspector.
Regulations 9 and 11 provide for issues related to the food handlers and the relevant regulations state:
(1) A person may not handle or be allowed to handle food without wearing suitable protective clothing as specified in subregulation (2).
(2) The protective clothing. including head and other coverings and footwear. of a person handling food that is not packed so that the food may not be contaminated must-
There are various opinions on whether in the case of the current COVID-19 pandemic it is possible to transmit the virus in food and thus whether wearing protective clothing, especially gloves and masks, will reduce the risks of contaminating food with the virus. However, there is little doubt that the virus can survive for at least several days on packaging, cartons, crates and vehicles used to transport food and as such the below is applicable to the situation.
11 (2) Food. a facility or a container may not be handled by a person -
(b) (i) who has reported or who is suspected of suffering from or being a carrier of a disease or condition in its contagious stage likely to be transmitted through food. which includes jaundice, diarrhoea. vomiting, fever, sore throat with fever and discharges from the ear, eye or nose:
(ii) a person referred to in subparagraph (i) may only resume handling food, a facility or a container if the person submits a certificate by a medical practitioner stating that the person is fit to handle food;
Thus, a person exhibiting any of the currently known symptoms of COVID-19 i.e. diarrhoea. vomiting, fever, sore throat with fever and discharges from the ear, eye or nose should not be allowed to handle food and may only be allowed back to handle food when cleared by a medical practitioner to do so.
A food handler means a person who in the course of his or her normal routine work on food premises, directly handles or comes into contact with packaged or unpackaged food, food equipment and utensils, or food contact surfaces and is therefore expected to comply with food hygiene requirements. Food premises means a building, structure, stall or other similar structure, and includes a caravan. vehicle. stand or place used for or in connection with the handling of food. Thus vehicle packers and delivery vehicle drivers and delivery staff are food handlers.
In terms of sub-regulation 14(6), a vehicle delivering pre-packaged food from food premises may be included in the COA of the food premises, but a third party vehicle would need a COA in the name of the person in charge of the delivery vehicles, whether an independent contractor or a logistics company. That person in charge would thus be responsible for compliance with the above obligations for a food handler by the driver/delivery person delivering food and this person in charge would either be the person in charge of the retailer where they use their own vehicles, or the person in charge of the delivery vehicle where it is outsourced.
As mentioned above, the OHS Act regulates the safety of the employee i.e. the food handler such as the driver/delivery person. Section 8 of this Act imposes the obligation on the employer to, where reasonably practicable, provide and maintain a safe, healthy work environment that is without risk to employees. This may also reduce the risk to consumers but that is not the purpose of this legislation. An employer can be prosecuted for failures.
Thus, Section 13 of the Act requires that employees be properly educated about the risks they are exposed to and what precautionary measures are to be taken.
However, the Act then places responsibility (and even criminal sanctions) on employees at work to take reasonable care for the health and safety for themselves as well as other persons. The unsafe acts of the worker may not negatively impact or endanger others (co-workers, contractors, visitors and even the public).
The person in charge of food premises, whether that be the producer or retailer, has an obligation to ensure that deliveries from their premises are carried out in a safe manner and in accordance with R638. Where their own vehicles are used, they are in charge and have the obligation but where the deliveries are outsourced, the outsourced vehicle must either have its own COA or be on the COA of the owner/operator of the vehicles. In both cases the drivers/delivery personnel must comply the food safety and hygiene requirements under R638.
Equally, where the delivery drivers are employees, their employer has an obligation to provide a safe working environment and thus adequate protective equipment, hand santisers etc.
It must not be forgotten that the driver/delivery person equally has legal obligations to ensure the safety of their co-workers and the public.
About the Author
Janusz F. Luterek, Pr.Eng for Hahn & Hahn Attorneys
For advice on compliance and other legal issues in the food industry contact Janusz Luterek at email@example.com - your food lawyer.