Listeriosis: Mind the regulatory gap
The listeriosis outbreak and revelations that it is linked to the Enterprise Foods manufacturing plant in Polokwane have shone a light on the gaps and complexity of food safety regulations in South Africa.
A range of government role-players — the departments of health, agriculture, forestry and fisheries, and trade and industry — manage food safety. But local government is responsible for municipal health services such as enforcing food safety legislation, according to the health department.
“The South African food control system is quite fragmented,” said Dr Lucia Anelich, a food microbiology and safety specialist who heads up Anelich Consulting. “The system as it stands is not ideal and needs to be revisited completely.”
Apart from the hygiene regulations in place at the health and agriculture departments, which require premises and personnel to operate under hygienic conditions and handle foods in a specific manner, there are a number of food safety management standards applied by South African food businesses, she said.
These standards are based on what is referred to as a hazard analysis and critical control points (HACCP) system.
But unlike in many other parts of the world, these are not required by law in South Africa, Anelich said.
Nevertheless, many local food companies adopt HACCP-based systems, said Anelich, simply because their customers want them in place before they will buy the ingredients or products that a manufacturer sells.
There is one exception to this, however: regulation 908 under the Foodstuffs, Cosmetics and Disinfectants Act, which falls under the health department. But this regulation is only mandatory for peanut sorting and peanut butter manufacturing facilities, Anelich noted.
There are also no regulated maximum permitted levels for Listeria monocytogenes in food, notably ready-to-eat meats in South Africa, she said.
Despite long-running efforts to overhaul regulation 692 to include testing for microbiological limits in food, the process has run aground, she noted.
Nevertheless, many of the food safety management system standards that the industry applied voluntarily were very strict, said Anelich. “But there obviously are some businesses that may not operate at this high level of food safety, which is also a problem.”
Listeria grows well in refrigeration temperatures, and is adept at hiding in the cracks and crevices of machinery on factory floors. To control for such organisms, many companies try to emulate European regulations, said Anelich.
European law generally makes a distinction between foods that support the growth of Listeria during their shelf life and foods that do not, she said.
A ready-to-eat food, for example, without any preservative to prevent the growth of Listeria would, for example, have a far stricter limit for the bacterium.
According to Penny Campbell, director for food control at the department of health, the delay in addressing the regulatory gaps is a result of a lack of resources and prioritisation.
Efforts to overhaul regulation 692 and regulate for microbiological limits in South Africa began in 2015, she said. But the department only has one technical expert.
Health spokesperson Popo Maja said that existing legislation allows for the adoption of HACCP by a food sector but that this is typically based on a request from industry. However the director-general can recommend a representative industry body be listed on the basis of food safety and the health of the consumer.
“However the situation emanating from the current outbreak indicates that a recommendation by the Director-General must be made,” he said “The process for this recommendation is underway.”
But HACCP certification is also not a panacea and laspses do occur due to human behaviours, it said
The European Union, has made HACCP mandatory across all food production sectors, yet investigation is currently underway of a multi-country Listeriosis Outbreak that started in 2015 in Austria, Denmark, Finland, Sweden and the United Kingdom.
You can claim compensation, but justice won’t be speedy
There are ways for consumers harmed by the listeriosis outbreak to get some justice but it may not be a swift process.
According to Rosalind Lake, a director at law firm Norton Rose Fulbright, under the Consumer Protection Act the entire supply chain is responsible for getting safe products to the market.
The Act allows for no-fault liability, which means a litigant bringing a claim is not required to prove that someone acted negligently or with intent, only that a product caused them harm.
“The liability arises from supplying unsafe products,” she said.
An affected individual could seek compensation under the Act, she said, for harm such as illness or death, and any economic loss flowing from that. For example, if a breadwinner were to die, there would be a potential loss of support claim.
The Act also allows the National Consumer Tribunal to impose penalties for contraventions. These can be quite significant, said Lake — up to 10% of a company’s turnover, or R1‑million.
Additional protections for consumers are found in the Foodstuffs, Cosmetics and Disinfectants Act, which makes it a criminal offence to knowingly manufacture and sell contaminated products. But a crime has to be proved beyond a reasonable doubt, said Lake, and it would have to be proven that a person acted with intent and knowingly sold a harmful product.
The power to bring such a case lies with municipalities, which are in charge of enforcing food safety. And although individuals can be held criminally liable under this Act, it would require proving intent, said Lake, and it would not generate compensation for consumers.
Consumers can also bring a class action suit if the Act has been contravened or if their rights have been infringed. Janusz Luterek, a partner at Hahn & Hahn attorneys said in a recent presentation, given the number of listeriosis cases, this could constitute a class. The damages claimed and legal costs incurred could be huge, he said.
There are international funders who fund this type of litigation, said Lake. — Lynley Donnelly