From time to time, we see unfamiliar biscuits, sweets, drinks, canned foods and other products on market shelves. Some carry labels we can barely understand. Others have packaging that looks suspiciously incomplete or have no obvious FDA registration information. Sometimes, we ignore them for our own safety. Other times, curiosity gets the better of us and we buy them simply to have a feel.
The recent controversy over a cigarette-shaped toffee, described online as a “Cigarette Rod Lollipop” or “Smoking Pop Candy”, has brought home questions we should probably have been asking for a long time. Better late than never, they say.
The product looked like a cigarette, was packaged as one and reportedly had a playful presentation that could make it particularly attractive to children. It has since reportedly been seized, with legal processes initiated. But beyond this controversial toffee lie some bigger legal questions. Must every food product sold or offered for sale in Ghana first be registered with the FDA? And what happens when it is not?
Registration of Food Products
Section 97 of the Public Health Act, 2012 (Act 851) leaves little room for doubt. It provides that a person shall not manufacture, import, export, distribute, sell or supply food, or expose food for sale, unless the Food and Drugs Authority has registered the food.
The reach of the provision is important. It does not stop with the person who manufactured the food. The importer, distributor, supplier and seller are all mentioned. Even exposing the food for sale falls within the prohibition. Consider the trader who receives a box of unfamiliar sweets from a supplier. The trader may not know where the sweets were made or how they entered Ghana. The price is attractive, customers are interested and the trader puts them on the table.
If the food requires registration and has not been registered, the fact that the trader did not manufacture it does not change the regulatory position. Whether that trader would ultimately be criminally liable would depend on the offence charged and the evidence in the particular case. But the statutory prohibition reaches the sale and exposure for sale of unregistered food.
Registration, therefore, is not merely a manufacturer’s formality. It is part of the legal gateway to the market.
Penalties for Non-Compliance
The law does not treat that gateway as a suggestion. Under section 110 of the Act, a person who breaches, among others, the requirement for registration before sale commits an offence and, upon conviction, is liable to a fine of not less than 1,000 penalty units and not more than 7,500 penalty units, or to imprisonment for not less than four years and not more than fifteen years, or both.
With a penalty unit valued at GH¢12, the statutory fine ranges from GH¢12,000 to GH¢90,000. The figures are substantial. But they should be understood in their proper context. The provision does not mean that every person found selling an unregistered food will automatically receive a fifteen-year sentence or the maximum fine. The relevant offence must be established against the particular accused person, and the circumstances of the case will matter.
Still, Parliament has attached serious consequences to non-compliance. And the cigarette-shaped toffee takes us a step further because, in that case, the problem may not end with registration.
Product Packaging and Presentation
Section 62 of Act 851 provides that a person shall not package, label or offer for sale a product that looks like or is likely to be identified or associated with tobacco or a tobacco product. The provision is striking because it is not concerned only with what is inside the product. Its appearance and association with tobacco matter too.
That makes the design of the cigarette-shaped toffee legally relevant. A sweet does not become a tobacco product simply because it resembles a cigarette. But a product deliberately presented in that form may nevertheless raise questions under a law that expressly addresses products which look like or are likely to be associated with tobacco.
The Public Health Act also addresses deception and misbranding in food. Under the law, it is an offence to manufacture, label, package, sell or advertise food in a manner that is false, misleading, deceptive or misbranded as to its character, nature, value, quality, composition, merit or safety.
So the law looks beyond the substance of the food to the story its packaging tells the consumer. Sometimes, the packet tells that story before the food ever reaches the mouth.
But the cigarette-shaped toffee should not make us lose sight of the larger issue. A packet of biscuits does not have to look suspicious to be unregistered. A bottle of drink does not have to make outrageous claims. A sweet does not have to imitate a cigarette.
The Wider Lesson
A product can look perfectly ordinary and still not be lawful to sell if the law requires it to be registered and that registration has not been obtained.
For the trader, that may mean asking a few questions before putting an unfamiliar product on the shelf. Where did it come from? Who supplied it? Has it been registered?
The cigarette-shaped toffee has simply made us stop and look. There are many other products on our shelves that may never attract the same attention. Perhaps we should not wait for the next one to go viral before we start looking more carefully.
