TDA on Halal

TRADE DESCRIPTIONS ACT

AND HALAL

Outline/Review

Introduction to Trade Descriptions Act

Trade Description Order and regulation On Halal (TDA’s subsidiary legislations)

Trade Descriptions (Definition of Halal) Order 2011

Trade Descriptions (Certification and Marking of Halal) Order 2011

Trade Descriptions (Certification and Marking of Halal Fees) Regulations 2011

ISSUES related to trade descriptions act

Conclusion

References

INTRODUCTION TO TRADE

DESCRIPTIONS ACT

Introduction – What is Trade

Descriptions Act (TDA)?

It is one of the acts in Malaysia that is enacted by

Parliament of Malaysia.

This act is applied in whole Malaysia to protect

traders or consumers from unethical trade practices.

This act is under supervision of Ministry of Domestic

Trade, Co-operatives and Consumerism (MDTCC).

There are two acts:

Trade Description Act 1972 (Not used since 1 November 2011)

Trade Description Act 2011(Latest)

*MDTCC = Kementerian Perdagangan Dalam Negeri, Koperasis dan

Kepenggunaan (KPDNKK)

Trade Descriptions Act 1972

Also known as Act 87

Date of Royal Assent - 26 September 1972

Date of publication in the Gazette - 30 September

1972

PREVIOUS REPRINTS

First Reprint – 1994

Second Reprint – 1999

Third Reprint – 2006

to consolidate and amend the laws relating to

merchandise marks with new provisions prohibiting

misdescription of goods provided in the course of trade

and false or misleading indications as to the price of

goods

to confer power to assign the meaning of any

expression or indication used in relation to the prices of

goods, charges or rates for services, accommodations

or facilities and to regulate, control or prohibit the use

thereof in the course of trade or business

Why this act is needed and what is it for?

to prohibit the making of false or misleading statements

as to any services, accommodation or facilities

provided in the course of a trade or business

to confer power to require information or instructions

relating to goods to be marked on or to accompany the

goods or to be included in advertisements; and for

related purposes.

Why this act is needed and what is it for?


Also known as Act 730

Date of Royal Assent – 5 August 2011

Date of publication in the Gazette

- 18 August 2011

Comes into force on 1 November 2011

Aim: To promote good trade practices in the

market by prohibiting false trade descriptions and

false or misleading statements, conduct and

practices in relation to the supply of goods and

services

Why Change???

To reform the law on trade descriptions by

repealing the Trade Descriptions Act 1972

To give it ‘more bites’ against the traders who

use fake halal logos

Protecting the interest of consumers

#Difference 1#

Section 9(1) – Trade Description Orders (TDO)

reserved for owners of registered trade marks only

In contrast to the 1972 Act where common law

owners are also eligible

Such a limitation may not be popular but it will

encourage registration of trade marks

#Difference 2#

Section 9(2) – A TDO is now valid for a mere one

year, unless renewed by the High Court on such

terms and for such further period as the Court may

decide

This is more administratively burdensome but

renewal would not be withheld unreasonably

#Difference 3#

Section 20 – It is now a punishable offence to make

false or misleading statement in relation to contests

and games

This would hopefully curb sham “scratch & win”

games of chance, with false promises of prizes, that

abound in Malaysia.

#Difference 4#

Section 23 – Personal or domestic use is now a

defence to a person charged under the Act.

However, a body corporate is not entitled to rely on

such defence

#Difference 5#

Section 44 – It is an offence to disclose information

that is likely to prejudice an investigation under the

Act

Some defences have been provided under this new

“tipping-off” provision

#Difference 6#

Sections 53 & 66 – These new sections allow admissibility of evidence obtained by agent provocateur (abetting the commission of an offence for the sole purpose of securing evidence) and rewarding whistleblowers with part (not more than 50%) of the fine imposed upon securing a conviction

This is to encourage the public’s participation; in an Act that is ultimately meant to protect the same public

TRADE DESCRIPTION ORDER

AND REGULATION ON HALAL

(TDA’S SUBSIDIARY

LEGISLATIONS)

Trade Descriptions Order and

Regulations On Halal

A court order obtained from the High court for a declaration that products bearing an infringing mark are a false trade description

It is useful as conclusive proof that the use of a false trade description on a product is a use without authority

There are three subsidiary legislations that are related to Halal:




TRADE DESCRIPTIONS

(DEFINITION OF HALAL)

ORDER 2011

Trade Descriptions (Definition of Halal)

Order

Minister makes this order in exercise of

the power conferred by section 28 of

TDA.

This order comes into operation on 1st

January 2012.

With this order, the use of the “Halal”

description or any other such descriptions

is voluntary.


Order

However, TDO has provided that when food or

goods are described as halal or can be

consumed by Muslim, such expression means

that:

A) neither is nor consist of or contains any part or

matter of an animal that is prohibited by

Hukum Syarak for a Muslim to consume or that

has not been slaughtered in accordance with

Hukum Syarak;

B) does not contain anything which is impure

according to Hukum Syarak;

C) does not intoxicate according to Hukum

Syarak;

D) does not contain any part of a human being

or its yield which are not allowed by Hukum

Syarak;

E) is not poisonous or hazardous to health;


Order

F) has not been prepared, processed or

manufactured using any instrument that is

contaminated with impure according to Hukum

Syarak

G) has not in the course of preparing, processing

or storing been in contact with, mixed, or in

close proximity to any food that fails to satisfy

paragraph a) and b).


Order

When services in relation to the food or goods

including the transporting, storing and processing

raw materials, serving and retailing of such food or

goods are described as halal such expression

means that the services in relation to the food or

goods are carried out in accordance with Hukum

Syarak.


Order

However, TDO has stated that any person who

supplies or offers to supply any food through any

representation or act which is likely to mislead or

confuse any person that the food is halal or can be

consumed by a Muslim is considered as commiting

an offence.


Order

PENALTY

Any person not in compliance with the Order

commits an offence and upon conviction, shall be

liable to a fine

a) not exceeding RM 1 million or imprisonment for a

term not exceeding 3 years or both.

b) not exceeding five million ringgit or to

imprisonment for a term not exceeding five years or

both. (for second or subsequent offence)


Order

The penalty for a body corporate is a

a) Fine not exceeding RM5 million

b) Fine not exceeding RM10 million (second or

subsequent offence)


Order

TRADE DESCRIPTIONS

(CERTIFICATION AND

MARKING OF HALAL)

ORDER 2011

Trade Descriptions (Certification and

Marking of Halal) Order

Minister makes this order in exercise of the

power conferred by section 29 of TDA.

This order comes into operation on 1st January

2012.



Under this order, only the Department of

Islamic Development Malaysia (JAKIM) and

the Islamic Religious Council (MAIN) in the

respective States are appointed as the

competent authorities to certify that any food,

goods or services in relation to the food or

goods is halal in accordance with the Trade

Descriptions (Definition of Halal) Order 2011.



All food and goods shall not be describe as halal

unless:-

certified as halal by the competent authorities

marked with the logo below



All imported food and goods marketed in

Malaysia shall not be describe as halal unless:-

certified as halal by the foreign halal certification

body recognized by JAKIM

importer or manufacturer of the food and goods

which have been certified as halal shall mark on the

said food and goods, the name of the said

certification body



All food and goods shall marked by affixing or

annexing the logo.

Apply to the Director General of JAKIM or the

Islamic Religious Council in the respective state for

Halal certification.

PENALTY

For body corporate, fine < RM 200K & < RM 500K

for a second/subsequent offence

For non-body coporate, fine < RM 100K / to

imprisonment < 3 years / both & < RM 250 K / to

imprisonment < 5 years

TRADE DESCRIPTION

(CERTIFICATION AND MARKING

OF HALAL FEES) REGULATIONS

2011


Marking of Halal Fees) Regulations 2011

These regulations come into operation on

1 January 2012

Fee payable for the application of the

halal certification under this regulation is as follow:

Fee payable table

NO MATTERS

CATEGORY

RM

1.

Product logistic

and

manufacturing

service

Types of

industry

features

Small industry

Annual value of sales≥

rm 500,000.00

100

Medium small

industry


rm 500,000.00

400

Multi national

company


rm 25 million

700

NO MATTERS

CATEGORY

RM

2.

Slaughterhouse

Size of premise according to

types of animal

Number of

slaughtering per day

Small

premise

Chicken 1. 2,999 heads 100

Goat /sheep 1. 499 heads

Cow / buffalo 1. 49 heads

medium

premise

Chicken 3,000- 10,000 heads 400

Goat /sheep

500- 700 heads

Cow / buffalo 50- 100 heads

big

premise

Chicken Exceeding 10,000

heads

700

Goat /sheep

Exceeding 700

heads

Cow / buffalo Exceeding 100

heads

NO MATTERS CATOGERY RM

3. Food

premise,restaurant,kitchen

and hotel

- 100 for each

premise

4. Catering service - 100

ISSUES RELATED TO TRADE

DESCRIPTIONS ACT

Issues Related to Trade Descriptions Act

(NEWS 02/10/11) Only Jakim Halal logo

recognised from 1/1/12

Effective from 1st January 2012, only Halal logo issued by

JAKIM can be used and will be recognised

This was a follow-up to the enforcement of the Trade Description

Act 2011

All the existing logo in 2011 in food premises, hotels and others

was void after January 1 and new fresh

applications are needed to be made

Industries were given a year to change to

halal logo issued by JAKIM, which is

untill 31 December 2012

(NEWS 3/7/12) From July 1, Food Outlets Without Jakim Halal Logo Risk Fine & Jail

Starting July 1, all food outlet operators who are still using and displaying halal logo not issued by JAKIM or State Religious Council, will be liable to a fine and imprisonment.

the food outlet operators that the usage of halal logo or words like 'ditanggung halal' (halal assured), 'Muslim food', 'Ramadan buffet', as well as symbols that could confuse the Muslims, was prohibited as stipulated under the Trade Descriptions (Definition of Halal) Order 2011, which had taken effect since Jan 1, this year.


Non-Halal Eateries Offering Buffet Warned

Non-halal restaurants and eateries in Kuching which were

running Ramadan buffet were urged to stop their act or risk

being fined

Such business had been warned to take down all form of

Ramadan buffet advertisement at their premises as it

confused public


This case confused the people especially when

some of the premises advertise various beer

brands with their Ramadan buffet promotion.

Under the Trade Descriptions Act 2011,

restaurants and eateries not halal certified or

those serving non-halal food will be fined if they

are found to have put up confusing promotion.

This includes putting up of signages such as

'Islamic food', 'Bismillah' or 'certified halal' at

their premises.


Halal Issue in Sushi King

Sushi King is not certified “Halal” from JAKIM.

However, all food served is pork-free and the meat

materials like chicken, beef and seafood are from Halal-

certified source.

They also claim that no mirin and alcohol is added to their

products.


They claim that they are still in the research

progress towards getting Halal certification from

JAKIM.

There is no logo or sign or signage like “certified

halal” in the restaurants even they seem to be

served Halal food.

This is shown that Sushi King obey TDA 2011,

which they do not confuse customers with the food

descriptions.


Halal Deal Reopens Malaysia Trade Door (New

Zealand)

In 2005, JAKIM inspectors found fault with the New

Zealand halal system and managed by Malaysian and New

Zealand Muslim authorities with the Meat Industry

Association, and meat plants started to lose their licences to

trade with Malaysia.

In 2011, NZ Agriculture and Forestry Ministry won an award

for best service provider at the World Halal Forum and this

proves New Zealand is recognised globally as having the

best halal system.

New Zealand’s approach is increasingly accepted as the

sensible one in the global halal meat market.


Conclusion

Trade descriptions act is an important act to protect

traders or consumers from unethical trade practices.

It helps to minimize the misleading or confused

descriptions of halal food, in order to make sure

that Muslim customers can consume food that is

certified by Halal.

THEREFORE, from now onwards, for Muslim students,

consume only food that is certified Halal by JAKIM

and State Religious Council.

References






http://www.halal.gov.my/v3/index.php/en/media/announcement/258-pekeliling-pensijilan-halal-malaysia-bil-12012

http://www.sushi-king.com/FAQ_71_1.htm

http://halalfocus.net/2011/10/02/malaysia-only-jakim-halal-logo-recognised-from-1-jan-2012/

http://www.kpdnkk.gov.my/en/pengguna/penguatkuasaan/tanda-halal

http://halalfocus.net/2012/06/21/nz-meat-exporter-gains-from-halal-challenge/

http://www.thesundaily.my/news/292459

http://www.daganghalal.com/HalalNews/HalalNewsDtl.aspx?id=1932



http://foongchengleong.com/tag/trade-descriptions-act-2011/

References

TDA on Halal

Documents

Transcript of TDA on Halal