The South African legal framework applicable to the production and sale of raw milk intended for direct consumption purposes

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The Milk and Dairy Products Regulations(GN R 1555 in GG 18439 of 21 November 1997) (hereafter R 1555) defines raw milk as “milk that has not undergone pasteurisation, sterilisation or ultra-high temperature treatment”. A distinction is made in R 1555 between: (a) the use or sale of raw milk intended for further processing (regulation 2) and (b) the sale of raw milk that is intended for consumption without its being pasteurised, sterilised or heat-treated before such consumption (regulations 3–5).

There is a growing trend worldwide among consumers to prefer “natural products” like raw milk due to their alleged health benefits. It is argued that the heat applied to milk during the treatment process destroys its nutritional quality and health benefits. It is also argued (specifically in the informal market) that raw milk is more affordable than treated milk. However, various health risks are associated with the consumption of raw milk of less good quality, for example: TB, Brucella fever, diphtheria and listeriosis. Various recent studies indicate that the quality of raw milk that is intended for direct consumption (especially in the informal sector) in South Africa is a matter for grave concern.

From a literature review it seems that regulations 3–5 of R 1555 are held as the regulatory framework for the production and sale of raw milk for direct consumption purposes. While regulations 3–5 deal with important aspects regarding the quality of raw milk, they do not make provision for, for example, the handling or transportation of the raw milk. Accordingly, with reference to the entire dairy food chain (from production to sale), this contribution is intended to indicate that the framework for the regulation of the production and sale of raw milk intended for direct consumption, although fragmented, stretches far beyond R 1555.

Legislation that finds direct application includes the Foodstuffs, Cosmetics and Disinfectants Act54 of 1972 (hereafter the Foodstuffs Act) as well as regulations issued in terms of the Foodstuffs ActSection 2 of the Foodstuffs Actprohibitsthe sale of certain foodstuffs and, more specifically for purposes of this contribution, it is regarded as a criminal offence if a foodstuff is sold which is “contaminated, impure or decayed, or is, or is in terms of any regulation deemed to be, harmful or injurious to human health”. With reference to the previously mentioned risks associated with the consumption of raw milk, it could be argued that the presence of pathogenic bacteria in raw milk presents a high risk to public health and the sale thereof could accordingly qualify as a criminal offence in terms of the Foodstuffs Act. Other criminal offences included in the Foodstuffs Act refer to foodstuffs (therefore including raw milk) that do not comply with regulations promulgated in terms of the Foodstuffs Act. One such regulatory instrument is the already mentioned R 1555. According to regulation 3(1) of R 1555, the sale of raw milk in South Africa is legal only in the areas of jurisdiction of the local authorities listed in annexure C to the regulations. Regulations 4 and 5 of R 1555 accordingly place certain prohibitions on raw milk that may be sold in such areas of jurisdiction. Prohibitions relate to: (a) the presence of residue levels of antibiotics in the raw milk; (b) the presence of pathogenic organisms or other substances which for any reason may render the product unfit for human consumption; (c) the maximum standard plate count of colony-forming units; and (d) the presence of E.coli, coliform bacteria and somatic cells. Various prohibitions apply to containers; for example, no person shall sell for consumption raw milk that (a) is not packed in a closed container; (b) is not clearly labelled “unpasteurised” or “raw milk”; or (c) if the milk is sold in the consumer’s own container, is tapped from a container which is not labelled “unpasteurised” or “raw milk”. Furthermore, the sale of raw milk that is not derived from a herd enrolled in the Bovine Tuberculosis Scheme and the Bovine Brucellosis Scheme is also prohibited.

As previously mentioned, R 1555 is regarded as the regulatory framework for the production and sale of raw milk intended for direct consumption purposes. However, certain regulations (also issued in terms of the Foodstuffs Act) will find application regardless of whether the raw milk is produced for further processing purposes or for direct consumption. Such regulations are concerned primarily with the handling and transportation of milk as well as the labelling and advertising of food in general, and include the following: (a) Regulations relating to hygiene requirements for milking sheds, the Transport of Milk and Related Matters (GN R 961 in GG35905 of 23 November 2012); Regulations governing general hygiene requirements for food premises and the transport of food (GN R 962 in GG 35906 of 23 November 2012); (c) Application of the Hazard Analysis and Critical Control Point (HACCP) system (GN R 908 in GG25123 of 27 June 2003); (d) The maximum limits for veterinary medicine and stock remedy residues that may be present in foodstuffs regulation (GN R 1809 in GG 14101 of 3 July 1992); and (e) Labelling and advertising of foodstuffs regulations (GN R 146 in GG 32975 of 1 March 2010).

Another piece of legislation that finds direct application is the Agricultural Products Standards Act 119 of 1990 together with the accompanying Regulations relating to the classification, packing and marking of dairy products and imitation dairy products intended for sale in the Republic of South Africa (GN R 260 in GG 38615 of 27 March 2015).

Various other pieces of legislation (and accompanying regulations) find indirect application either due to their application to either animals (for example the Animal Diseases Act 35 of 1984) or fertilisers, farm feeds, agricultural remedies and stock remedies (for example Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947) or due to their application to national standards (for example the Standards Act 8 of 2008) or consumer protection (Consumer Protection Act 68 of 2008).

Various standards (both national and international) as well as guidelines and codes of good or best practices also find application regarding the production and sale of raw milk, including various food safety related standards issued by the (a) International Organisation for Standards; (b) International Dairy Federation; (c) Food and Agricultural Organization; and (d) Codex Alimentarius.

After having identified the legal framework applicable (both directly and indirectly) to the production and sale of raw milk for direct consumption it is concluded that, although fragmented, the necessary health and safety requirements are, in fact, already in place. Accordingly we submit that the problem is rather a matter of non-implementation and/or poor enforcement of the framework. Another problem may be a lack of awareness of the various requirements by both consumers and milk producers. Recommendations include: (a) addressing the fragmented approach of the current framework by publishing regulations specifically relating to the production and sale of raw milk for direct consumption purposes – from production to consumption; (b) the development of a code of best practice / guidelines applicable to the handling of specifically raw milk; (c) the introduction of measures to increase consumer awareness; and (d) more effective implementation and enforcement of the identified framework.

Keywords: consumption of raw milk; legal framework; milk producers; production of raw milk; raw milk; sale of raw milk

Lees die volledige artikel in Afrikaans: Die Suid-Afrikaanse regsraamwerk rakende die produksie en verkoop van rou melk wat vir direkteverbruiksdoeleindes bestem is

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