REGISTRABILITY OR OTHERWISE OF MANUFACTURERS OF FAST-MOVING CONSUMER GOODS UNDER THE NIGERIAN COUNCIL OF FOOD SCIENCE AND TECHNOLOGY ACT 2019

INTRODUCTION

The Nigerian Council of Food Science and Technology (the “Council”), established under the Nigerian Council of Food Science and Technology Act 2019 (the “Act”), is a body corporate with significant responsibilities related to the regulation of the food profession in Nigeria. A distinct function of the Council is the establishment and maintenance of a comprehensive register of persons qualified and authorized to practice as food professionals within the country and premises used for the practice of the food profession.[1] This presupposes that food professionals, members of the food profession and their premises must be registered with the Council and this is confirmed in relevant sections of the Act.[2] To emphasize the importance of registration and compliance, Section 25 of the Act outlines stringent penalties for non-compliance. Any food professional found to be practicing their profession in a premises that has not been registered by the Council is deemed to have committed an offense under the Act. The consequences for such violations are significant: A first-time offender faces a fine of NGN100,000. For subsequent offenses, the penalties escalate to a maximum of two (2) years imprisonment, a fine of NGN200,000, or both. This combination of financial penalties and potential imprisonment underscores the seriousness with which the Act views the unauthorized practice of the food profession and the need for all professionals to adhere to the registration requirements outlined by the Council. Recently, there has been an increased drive by the Council for companies ostensibly categorised as “food business operators” by the Council to be registered as food professionals as contemplated under the Act. Undoubtedly, this has raised concerns amongst key players within the food industry. This briefing note seeks to examine the relevant provisions of the Act vis-a-vis the registration obligation of companies operating within the food industry.

CAN THE COUNCIL WHICH IS SET UP TO REGULATE PROFESSIONAL MEMBERS COMPEL COMPANIES ENGAGED IN THE MANUFACTURING OF FAST-MOVING CONSUMER GOODS TO REGISTER WITH IT?

A contextual and purposive interpretation of the Act suggests that companies are not required to register with the Council, and that the Act contemplates only natural persons as registrable entities. The foundation upon which this position is built is foremost the repeated usage of the word “person(s)” across Sections 3,5,8,11,25 and other relevant provisions of the Act, which is suggestive of the fact that the Act intends to apply solely to natural persons as individual members of the food profession or a food professional. The eligibility requirement for admission as members of the food profession in Section 5 of the Act is further indicative of this. The stratification of membership into “Fellow” and “Member”[3] strongly indicates that only natural persons may be admitted into the association. Credence to this position is the outline for the usage of the titles in Section 5(2) of the Act where usage is determined by the age and years of experience of the recipient.

Additionally, the result of a diacritical analysis of Section 11 of the Act that focuses on the issue of registration, indicates that the provision in the said section caters only for natural persons and not companies. More specifically, Section 11(3) of the Act reads:

“A person applying for registration under this Act shall, in addition to the evidence of qualification, satisfy the Council that he is a fit and proper person.”

The requirement that a person must be a “fit and proper person” is a standard of personal character, integrity, competence, and financial soundness. These are inherently human (subjective and moral) qualities that can only apply to natural persons, not artificial persons like companies. While companies are juristic persons capable of owning property, entering contracts, and suing or being sued, they do not possess moral character or personal conduct, which are at the core of the “fit and proper” assessment save where the enabling statute or regulation expressly so provides. In our view, the Act does not expressly provide for this, thus reinforcing our stance that the issue of registration in the food industry as contemplated under the relevant provisions of the Act, concerns only natural persons and by no stretch was it the intendment of the drafters to include companies nor are companies compelled to register with the Council.

CAN A COMPANY QUALIFY AS A “PERSON” AS CONTEMPLATED UNDER THE ACT?

While it is our considered view that companies are not the intended recipients of the registration requirement under the Act, we are not oblivious of the position of the law that the word “person” when used in a legal parlance, such as in a legislation or stature, connotes both a natural person, that is to say, a human being and an “artificial person” such as corporation sole or public bodies corporate or incorporate.[4]

That said, when a statute explicitly or implicitly suggests that the term “person” is limited to or is intended to be limited to natural persons (as is the case, in our view, under the Act), this narrower interpretation will prevail. This principle is rooted in statutory interpretation, where the context and purpose of the legislation guide the understanding of its terms.

CONCLUSION

Given the extant provisions of the Act, we see no basis for the Council to compel manufacturing companies producing fast moving consumer goods to register as “food business operators” or impose sanctions for non-registration.

Please do not treat the foregoing as legal advice as it only represents the public commentary views of the authors. All enquiries on this should please be directed at the authors